Delhi District Court
Cc No. 616599/16 Smt.Sumitra Devi vs Smt.Basanti Dass on 10 October, 2019
CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass
IN THE COURT OF SH. KAMRAN KHAN, MM (NIACT
02) (SOUTH EAST DISTRICT), SAKET COURT, NEW
DELHI
CC No. : 616599/16
CNR No. : DLSE020022762014
Date of filing : 03.06.2014
Date of Registration: : 05.06.2014
Date of Decision : 10.10.2019
Smt. Sumitra Devi W/o Sh. Pooran Chand, R/o H. No.344,
BlockA, Navjiwan Camp, New Delhi. Also At: 16/510, DDA
Flats, Kalkaji, New Delhi.
......Complainant
Versus
Smt. Basanti Dass W/o Tapan Dass, R/o D60, DDA Flats,
Kalkaji, New Delhi.
........Accused
Argued by: Sh. Arjun Bhaskar, counsel for complainant.
Sh. Pramod Sharma, counsel for accused.
JUDGMENT: Complainant has filed the present complaint under Section 138 of Negotiable Instruments Act, 1881 on the averments accused, being in friendly relations, used to take friendly loans from her and used to return the same. As per the complainant, accused asked for a friendly loan of Rs.5,00,000/ from time to time for the purpose of doing business of fish and illness of her son. It is further the case of the complainant that CNR No:DLSE020022762014 Page No. 1 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass she firstly gave a friendly loan to the complainant on 07.04.2009 and also gave loan time to time of Rs.5,00,000/ total in cash. After eight months, complainant approached the accused for the return of the loan amount of Rs.5,00,000/ but accused requested time for the same. It is further the case of the complainant that before two months the accused sold her house but had not returned the loan amount and to discharge the liability accused issued a post dated cheque of Rs.5,00,000/ in favour of complainant bearing no.111729 dated 31.03.2014 drawn on State Bank of India, Kalkaji, New Delhi (hereinafter referred as "cheques in question"). However, when the complainant presented the cheque to her banker the same was returned unpaid with remarks "stopped drawer" vide bank returning memo dated 02.04.2014. Thereafter, complainant approached the accused and demanded the loan amount and also informed the accused about the fate of the cheque in question and issued a legal demand notice dated 25.04.2014 through her counsel by way of registered AD to which the accused also sent a reply dated 13.05.2014. However, the accused failed to make the payment even after receiving the legal demand notice and hence the present complaint.
2. After taking presummoning evidence, accused was ordered to be summoned in this case for commission of offence CNR No:DLSE020022762014 Page No. 2 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass under Section 138 of Negotiable Instruments Act, 1881, vide order dated 25.07.2014.
3. Accused appeared and was released on bail on 27.05.2015. On finding a prima facie case, notice U/s 251 Cr.P.C. was served upon the accused on 27.05.2015 to which she pleaded not guilty and opted to contest after disclosing the following defence:
"I do not plead guilty and claim trial. I am working in C.R. Park in four houses and doing the work of cleaning utensils and also cooking. I had engaged the complainant for massage purpose. The complainant provided me the said purpose for 67 months and I was to pay a sum of Rs.2500/ for rendering this service to me. After the above service of the complainant was complete, I asked her to take the dues after few days.
After about 78 months, I sold my house in which I was living and shifted to a new house which was also owned by me. During the process of shifting, my cheque book was misplaced. There were about 20 leafs in the said cheque book. I had put my signatures on the two cheques out of the above 20 cheques for paying the water and electricity bills. I intimated the fact of loss of my above cheque to my bankers. After about 56 months, I received a legal notice from the complainant from question has been misappropriated by the complainant. I have also replied to the said legal notice. Hence, I am not liable to pay the cheque in question."
4. In evidence, CW1 Sumitra Devi appeared and CNR No:DLSE020022762014 Page No. 3 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass tendered her pre summoning affidavit of evidence Ex. CW1/1 in which she reiterated the averments of the complaint on oath. She also relied upon following documents : Ex. CW1/A : Cheque bearing no.111729 dated 31.03.2014 of Rs.5,00,000/.
Ex. CW1/B : Bank returning memo dated
31.03.2014.
Ex. CW1/C : Legal demand notice dated
25.04.2014.
Ex. CW1/D : Postal receipt dated 25.04.2014.
Ex. CW1/E : Reply dated 13.05.2014 to legal
demand notice.
5. CW1 was duly cross examined on 27.05.2015. Thereafter, statement of accused U/s 313 Cr.P.C. was recorded and the case was adjourned for defence evidence. When the case was at the stage of defence evidence, an application U/s 311 Cr.P.C. was filed by the complainant. Vide order dated 23.05.2016 the said application was allowed and thereafter, complainant examined CW2 Hemlata who tendered her affidavit of evidence Ex. CW2/A and CW3 D. K. Arora who tendered his affidavit of evidence Ex. CW3/A. Thereafter, complainant evidence was closed on 16.03.2017 vide separate statement of complainant.
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6. Thereafter, accused was again examined under Section 313 Cr.P.C. for explaining the circumstances appearing against her in complainant's evidence. She has denied the complainant's case and pleaded false implication and opted to lead evidence in her defence.
7. In defence evidence accused examined herself as DW1 after taking due permission from the court. She also proved following documents.
Ex.DW1/A : Application for Stop Payment
dated 05.03.2014
Ex.DW1/B : Information Report dated
04.05.2014
Mark DX : Copy of ITR.
Defence evidence was closed by the accused vide separate statement dated 21.02.2019.
8. I have heard ld. Counsel for the parties and have perused the case file carefully and meticulously.
9. Initiating the arguments, learned counsel for the complainant argued that, in discharge of the liability, accused issued the cheque in question (Ex. CW1/A) in favour of the complainant which got dishonoured due to the reason "Payment stopped by drawer". After getting the information regarding the CNR No:DLSE020022762014 Page No. 5 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass dishonour of cheque, vide cheque returning memo Ex.CW1/B, complainant served a legal demand notice Ex.CW1/C to the accused. However, even after having the knowledge of dishonour of cheque, the accused did not make the payment. Further, it was argued that no concrete evidence is being led by the accused to rebut the presumption U/s 139 Negotiable Instruments Act, 1881. It was also contended that it is only after receiving the legal demand notice the accused filed an information to the concerned police station about missing of 14 cheques which shows that the same is an afterthought. Also, it was argued that in the information to the police accused has not made even a whisper about the complainant allegedly misusing the cheque in question or no allegations of theft, extortion of money or forgery was leveled against the complainant even though the accused had already received the legal demand notice regarding the cheque in question. It was also argued that throughout the trial the accused had told the story of missing of cheque book having 20 cheques but in the letter Ex.DW1/A written by the accused to her banker she gave stopped payment instructions for only 14 cheques and in the cross examination dated 24.03.2018 accused failed to give any explanation to the same which clarifies that the accused is lying and her defence is false. It was also argued that the cheque in question bears number "111729" which will fall in the middle of the cheque book and the same is also clear from the stop payment letter Ex.DW1/A and in the cross examination when CNR No:DLSE020022762014 Page No. 6 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass accused was asked as to why she had signed a cheque which is in the middle of the cheque book then to cover up her lie accused made contradictory statements in her cross examination. It was further argued that the accused also failed to tell the cheque number of the second cheque which was allegedly signed by her. Also, it was contended that no evidence is being led by the accused to prove that she shifted the house in January, 2014 and engaged the complainant for massage services of her husband whereas complainant has examined CW2 Hemlata, who lives in the same colony and knows the parties to the complaint, who has specifically deposed that the complainant has never been engaged for any massage service by the accused. With these submissions, it was prayed that the accused be convicted for the offence committed U/s 138 Negotiable Instruments Act, 1881. In support of his arguments ld. Counsel for complainant relied upon case titled Bir Singh Vs Mukesh Kumar, AIR 2019 SC 2446, Rohitbhai Jeewanlal Patel Vs State of Gujarat and Ors. AIR 2019 SC 1876 and Kishan Rao Vs Shankargouda, AIR 2018 SC 3173.
10. On the other hand, learned defence counsel vehemently refuted the contentions raised by learned counsel for the complainant and argued that complainant is misleading the court and she is concealing the material facts and is trying to CNR No:DLSE020022762014 Page No. 7 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass take undue advantage of Section 138 of Negotiable Instruments Act, 1881 and she is willfully harassing the accused. He further contented that to rebut the statutory presumption U/s 139 of the Negotiable Instruments Act, 1881 an accused is not expected to prove his defence beyond reasonable doubt as is expected in a criminal trial and the said presumption can be rebutted by the accused either by adducing direct evidence to prove the non existence of any debt of liability or by indirectly pointing out fallacies in the prosecution version. It was further argued that U/s 138 Negotiable Instruments Act, 1881 it is mandatory to prove liability, issuance of cheque against the liability, bouncing of the same and non payment of cheque amount after the notice of demand. It was further argued that in the present case the accused proved the defense as there is no liability so question of issuance of cheque does not arise. It was further contended that complainant in her cross examination had stated that the loan of Rs.5,00,000/ was advanced to the accused in four installments of Rs.1,25,000 each from the year 2012 till 201314 but the said version of the complainant is contrary to the legal demand notice, affidavit of evidence and complaint wherein the complainant had written that the loan was advanced in the year 2009. It was further argued that no loan was taken by the accused and that's why there is no receipt of any loan. It was further contended that it cannot be digested that a person will advance a huge sum of Rs.5,00,000/ without any interest. Also it was contended that in CNR No:DLSE020022762014 Page No. 8 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass the complaint and in the affidavit of evidence names of CW2 and CW3 were not mentioned and these witnesses were called by the complainant in order to fill up the lacunae. It was also contended that the complainant has failed to prove her case as accused has been able to prove that the complainant had stolen the cheque in question and misused the same after getting filled by some third person in order to extract the money. With these submissions acquittal of the accused and dismissal of the complaint was prayed.
11. After hearing Ld. Counsel for the parties and having perused the case file carefully and meticulously this court is of the opinion that in order to bring home the guilt against the accused, complainant is duty bound to prove the following ingredients:
a) Drawing of cheque by a person on any account maintained by him with a banker for payment to another person out of that account.
b) The cheque has been issued for the discharge, in whole or in part, of any legal and enforceable debt or other liability.
c) Presentation of the cheque by the payee or the holder in due course to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier.
d) Returning the cheque unpaid by the drawer bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque.
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e) Giving notice within 30 days of receipt of the information by the payee from the bank regarding the return of the cheque as unpaid, demanding payment of the cheque amount.
f) Failure of the drawer to make payment to the payee or the holder in due course of the amount covered by the cheque within 15 days of the receipt of notice.
12. It goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence U/s 138 of Negotiable Instruments Act, 1881.
13. In the case in hand, it is not in dispute that the cheque in question is drawn by the accused from her bank account. Further, it is also not in dispute that the accused is the signatory of the cheque in question. Presentation of the cheque in question by the complainant is also not in dispute. Returning memo Ex. CW1/B is also undisputed i.e., the cheque in question was returned unpaid for the reason "Stopped by Drawer". Complainant sent the legal demand notice dated 25.04.2014 (Ex.CW1/C) to the accused. It is also not in dispute that the accused received the legal demand notice as the accused had sent her reply dated 13.05.2014 (Ex. CW1/E). Finally, the complaint has been filed within the limitation period. Therefore, essential ingredients mentioned from (a) to (f) [except point b] in para no.11 above have been duly satisfied.
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14. The only question remaining for determination is whether legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of said liability / debt. It is pertinent to note that Section 139 of Negotiable Instruments Act provides a statutory presumption that the cheque was handed over in respect of the debt or other liability. Under Section 118 of the Negotiable Instruments Act, 1881 every negotiable instrument is presumed to have been drawn and accepted for consideration. In the case of K.N. Benna vs Muniyaapan AIR 2001 SC 2895, it was observed as follows:
"Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten. P. Dalal vs Bratindranath Banarjee reported in (2001) 6 SCC 16 has also taken an identical view."
15. The Hon'ble Supreme Court, in the case of Hiten. P. Dalal vs Bratindranath Banarjee (2001) 6 SCC 16, observed as follows:
"Because both Section 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, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual CNR No:DLSE020022762014 Page No. 11 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid).
16. Also, in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
17. So far as the question of existence of basic ingredients for drawing of presumption U/s 118 and 139 of Negotiable Instruments Act, 1881 is concerned from the aforesaid discussion it is apparent that the accused has not denied her signatures on the cheque in question that has been drawn in favour of the complainant on a bank account maintained by the accused for sum of Rs.5,00,000/. The said cheque was presented to the bank concerned within the period of its validity and was returned unpaid for the reason mentioned in the bank returning memo. Hence, all the basic ingredients of Section 138 as also of Section 118 and 139 are apparent on the face of record. Therefore, it is required to be presumed that the cheque in CNR No:DLSE020022762014 Page No. 12 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass question was drawn for consideration and the holder of the cheque i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused to establish a probable defence so as to rebut such a presumption.
18. 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". In Rangappa vs. Srimohan (2010) 11 SCC 441, the Hon'ble Supreme Court has observed:
"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 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 accused/defendant cannot be expected to discharge an unduly high standard or proof. 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 CNR No:DLSE020022762014 Page No. 13 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass 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."
19. In Rohitbhai Jivanlal Patel (Supra) Hon'ble Supreme Court has held that :
"On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non existence was so probable that the prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged U/s 118 and 139 of NI Act."
20. Now, in the case in hand the basic question to be answered is whether the accused has been able to rebut the presumption raised U/s 139 R/w Section 118 of NI Act. In order to rebut the said presumption the accused appeared in the witness box as DW1 and has deposed that she had not taken any loan CNR No:DLSE020022762014 Page No. 14 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass from the complainant at any point of time and in January, 2014 she shifted her house and at that time her cheque book containing 20 cheques, out of which two were signed cheques, got misplaced and she came to know about the same in the month of March, 2014. It has further come in evidence of DW1 that she gave an application to her banker for "stop payment" of the missing cheques on 05.03.2014, which is on record as Ex. DW1/A, and thereafter lodged a complaint on 04.05.2014 in PS Kalkaji, which is on record as Ex. DW1/B. It is also the defence of the accused that the complainant had stolen her cheque book at the time when complainant used to visit her house to give massage to her husband as her husband was suffering from paralysis and used one of the cheque in the present case.
21. So far as the question of complainant visiting the house of the accused for the purpose of giving massage to the husband of the accused is concerned it is to be noted that it is only an oral evidence of the accused which has been duly rebutted by the complainant in her oral evidence and the version of the complainant was also corroborated by CW2 Hemlata. Now, coming to the question whether the accused has been able to prove the fact that the complainant had stolen the cheque book of the accused. In this regard it is to be noted that as per the accused in the month of January, 2014 she shifted the house and at that time she kept cheque book containing 20 cheques and out CNR No:DLSE020022762014 Page No. 15 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass of those two cheques were signed by her and in the month of March, 2014 she came to know that her cheque book is missing from her house. However, accused has failed to prove that she shifted her house in the month of January, 2014 by leading any reliable evidence. Further, it is also to be noted that the cheque in question is dated 31.03.2014 and the same was returned vide returning memo Ex. CW1/B. Accused issued a letter dated 05.03.2014 Ex. DW1/A instructing her banker to "stop payment"
of the cheques mentioned in the said letter. However, the accused gave "stop payment" instructions for only 14 cheques against the alleged theft of cheque book containing 20 cheques by the complainant. In the cross examination ld. Counsel for complainant asked for an explanation from the accused but the accused failed to tender any explanation as to why she gave stop payment instruction for only 14 cheques against alleged theft of her cheque book containing 20 cheques.
22. Moving ahead, it is also to be noted that as per the letter Ex. DW1/A the cheque in question will fall in between. It is the case of the accused that she had signed two cheques for the purpose of paying bills but it is highly unlikely that a person would sign a cheque which falls in the middle of the cheque book first escaping the cheques that is placed before it. In a normal routine a person would sign a cheque serial wise but in the case in hand strangely accused signed the cheque falling in the middle CNR No:DLSE020022762014 Page No. 16 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass of the cheque book. When the accused was asked in the cross examination about the same, she gave a very evasive reply that some cheques were signed twice which are at her home but in the next breath she deposed that she cannot produce the cheques as she has torn and thrown them away.
23. After the dishonor of the cheque, a legal demand notice was issued to the accused on 25.04.2014. As per the accused, she also informed the police about the missing of her cheque book. In this respect accused filed a copy of information report Ex. DW1/B dated 04.05.2014. Certainly, at the time of lodging of the said police report the accused was well aware that one of the cheque of her alleged missing cheque book is in possession of the complainant and complainant has misused the same. Despite being aware of the same the accused had not mentioned any such fact of the alleged stealing of cheque book or misusing of cheque in question by the complainant, in her complaint Ex. DW1/B which clearly shows that the same is nothing but an afterthought.
24. It is has been argued by the Ld. Counsel for accused that the evidence of CW2 and CW3 cannot be relied upon as the complainant had not mentioned their names and has not mentioned their role either in the complaint or in the affidavit of evidence. In this regard, it is to be noted that no doubt neither in CNR No:DLSE020022762014 Page No. 17 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass the complaint nor in the affidavit of evidence, complainant had not mentioned the names of CW2 and CW3 but it is to be duly noted that in the cross examination complainant / CW1 had duly deposed that she advanced loan of Rs.5,00,000/ to the accused in four installment of Rs.1,25,000/ each and besides the aforesaid amount she also advanced a sum of Rs.25,000/ to the accused in the second of third month of the year 2014. CW2 Hemlata, who was examined on 30.09.2016 i.e., after the evidence of CW1, had specifically deposed and corroborated the aforesaid testimony of CW1. Further, CW3 D. K. Arora specifically deposed in his affidavit Ex. CW3/A that accused issued a cheque of Rs.5,00,000/ dated 31.03.2014 in favour of the complainant in his presence. Hence, the evidence of CW2 and CW3 cannot be discarded only on the ground that the complainant had not mentioned their names in the complaint. Recently, Hon'ble Supreme Court in case titled M/s Sh. Daneshwari Traders Vs Sanjay Jain & Anr., Crl. No.6162 of 2011 has held that the evidence adduced to raise presumption U/s 139 NI Act cannot be discarded merely on the ground that there is no such averment in the complaint.
25. Lastly, it is to be noted that no doubt in the complaint, complainant has mentioned that she firstly gave loan to the accused on 07.04.2009 and in the cross examination complainant has specifically deposed that prior to 2012 she had CNR No:DLSE020022762014 Page No. 18 of 19 CC No. 616599/16 Smt.Sumitra Devi Vs Smt.Basanti Dass not advanced any loan to the accused. However, this is only a minor contradiction for which the accused is not entitled for any benefit.
26. In these circumstances and in view of the above detailed discussion, this court is of the considered opinion that accused has failed to rebut the presumption under Section 139 R/w Section 118 of Negotiable Instruments Act, 1881. Accordingly, accused stands held guilty and convicted for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881.
27. Let she be heard on quantum of sentence on 14.10.2019.
Announced in Open Court (Kamran Khan)
10.10.2019 MM (NIAct 02), South East
Saket Court, New Delhi
Note: This judgment contains 19 pages and each page has been signed by me.
(Kamran Khan) MM (NIAct 02), South East Saket Court, New Delhi CNR No:DLSE020022762014 Page No. 19 of 19