Delhi District Court
60 Months vs Vide This Judgment And Final Order on 17 December, 2019
IN THE COURT OF MS. AKRITI MAHENDRU, MM04 (NI ACT)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CC No. : 532197/16
U/s : 138 NI Act
JUDGMENT
a The Sl. No. of the case : 532197/16
b The date of Institution of the case : 15.09.2010.
c The name of complainant : Shyam Singh Bhatia S/o.
Sh. Tola Ram Bhatia,
R/o. 1/34, Vijay Nagar,
Double Storey, Delhi.
d The name of accused : Subhash Chawla S/o.
Late Sh. J.L. Chawla
R/o. 2471, Hudson Lane,
Kingsway Camp, Delhi.
e The offence complained of : 138 NI Act
f The plea of accused : Pleaded not guilty
g The final order : Acquitted
h The date of judgment : 17.12.2019
JUDGMENT
1. Vide this judgment and final order, this Court shall dispose of the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881 (as amended to-date).
2. Whereas speaking succinctly, the gravamen of the Complainant in the instant CC is that his daughter (namely, Ms. Bhawana Bhatia) entered into a Mutual Agreement dated 04.02.2006 with one Mr. Rohit C.C. No. 532197/16 Page 1 of 19 Chawla, i.e. son of the Accused, whereby, the Accused had accepted / undertaken to discharge the liability toward said Ms. Bhawana Bhatia for and on behalf of his son. Consequently, acting in furtherance to the terms of the aforesaid Mutual Agreement dated 04.02.2006, the Accused allegedly issued fifty nine (59) Post-Dated Cheques of Rs.50,000/- (rupees fifty thousand only) each in favor of the Complainant. Among those fifty nine (59) cheques, the cheques bearing nos. 066965 dated 10.04.2010, 066966 dated 10.05.2010, and 066967 dated 10.06.2010 all drawn on United Bank of India, Daryaganj branch, Delhi in the tune of Rs.50,000/- (rupees fifty thousand only) in favor of the Complainant form a subject matter of the instant CC; hereinafter referred to as "the impugned cheques" as much for the sake of brevity as to obviate prolixity. Reportedly, upon presentation the impugned cheques were returned dishonored owing to the reason "Funds Insufficient" vide even dated cheque return memos dated 21.06.2010. Thereafter, the statutory demand notice dated 20.07.2010 issued to the Accused at the behest of the Complainant fell on deaf ears inasmuch as evoked neither reply nor compliance, the latter was thereby, constrained to institute the present complaint case.
3. The Complainant tendered his pre summoning evidence by way of affidavit (Ex.CW1/A); and relied upon documents, to wit - Mutual Agreement dated 04.02.2006 (Ex.CW1/1), cheque(s) (Ex.CW1/2, Ex.CW1/3 & Ex.CW1/4 ), Bank Returning Memos (s) (Ex.CW1/5, Ex.CW1/6 & Ex.CW1/7), Legal Demand Notice (Ex.CW1/8) and Postal/Delivery Receipt (Ex.CW1/9 & Ex.CW1/10) Thereupon, the Accused was summoned vide order dated 15.09.2010.
4. Upon appearance, notice under Section 251 of the Code of C.C. No. 532197/16 Page 2 of 19 Criminal Procedure, 1973 was framed against the Accused during the course of proceeding dated 18.01.2011 to which the Accused, inter alia, pleaded not guilty on the ground that the impugned cheques were issued by him under duress upon being harassed by the Complainant at the time of marriage of his son and denied liability in the tune of amounts entailed the impugned cheques inasmuch as claimed to have repaid them all.
5. Thereafter, the Accused was granted the opportunity to cross- examine the Complainant as well as his witnesses.
6. In order to bring home the offence complained of against the Accused, the Complainant examined three (03) witnesses, namely himself qua CW1, Sh. Ashok Kabra qua CW2, and Sh. Sunil Bichhode qua CW3. The Complainant (CW1) adopted his pre-summoning evidence and was cross-examined at length by the Ld. Counsel for the Accused. The sum and substance discernible from the testimony of CW1 may be delineated as hereafter - During his cross examination, CW1, on the one hand, deposed that he had made payment in the sum of Rs.30,00,000/- (rupees thirty lacs only) to the Accused by way of cheque as well as cash over a period of 2-3 years as and when demanded by the son of the Accused (i.e. Mr. Rohit Chawla) from his daughter (i.e. Ms. Bhawana Bhatia), on the other, testified that his daughter (i.e. Ms. Bhawana Bhatia) had given the said sum of Rs.30,00,000/- (rupees thirty lacs only). CW1 though, neither recalled as to how much amount was paid by cheque or in cash nor remembered as to how much amount in total was paid to Mr. Rohit Chawla. Interestingly, in spite of deposing that he had paid a sum of Rs.6,00,000/- (rupees six lacs only) each on two different occasions, C.C. No. 532197/16 Page 3 of 19 the witness (CW1) did not remember either the day, or the month or even the year when those two payments were allegedly made; not only this, CW1 failed to corroborate the cheque payments made through his account maintained with the United Bank of India, for no record pertaining to the said bank account has been adduced by the witness on record since nowhere exhibited. CW1 denied the suggestions, namely - that (a) on 04.02.2006, Ms. Bhawana Bhatia had threatened the Accused to part with a sum of Rs.30,00,000/- (rupees thirty lacs only) by abusing her 8 years long relationship with Mr. Rohit Chawla; (b) Ms. Bhawana Bhatia had threatened, inter alia, the Accused that unless the aforesaid money is paid to her, she would jeopardize the wedding of Mr. Rohit Chawla then due to be solemnized on 06.02.2006; (c) Ms. Bhawana Bhatia had threatened false implication, inter alia, of the Accused in criminal cases which fact had coerced the Accused to issue, inter alia, the impugned cheques as only conceivable means to salvage his respect and dignity in the biradari as much as for the efficacious performance of marriage of his son; (d) out of aforesaid 59 Post-Dated Cheques, 24 cheques have already been encashed by the Complainant, whereas, the payment against the remaining cheques has already been received by him from the Accused in cash; and (e) in his income-tax statement, CW1 has indicated that he has already received the entire sum from the son of the Accused, through Accused, towards full and final discharge of the liability under Mutual Agreement dated 04.02.2006. Apart from the foregoing, it is also discernible from the cross-examination of CW1 that the Complainant is a retired government servant and in the year 2006, was drawing a pension in the tune of Rs. 6,000/- (rupees six thousand only) and has not been C.C. No. 532197/16 Page 4 of 19 assessed for the years 2004 to 2006.
7. CW2, on the other hand, is an official witness from SBI, Vijay Nagar Branch, Delhi summoned by the Complainant in order to prove as much the presentation of impugned cheques as their dishonor vide cheque return memos, all dated 21.06.2010.
8. CW3 is another official witness summoned by the Complainant to manifest that stop payment instructions had been issued by the Accused vis-à-vis impugned cheques. The witness has tendered letter dated 22.12.2014 (Ex. CW3/1) issued by the Manager, United Bank of India, entailing the particulars of the bank account as well as the cheque nos. vis-à-vis which stop payment instructions have been issued by the drawer. At this stage, it is profitable to note not only that the impugned cheques have been drawn on an account maintained by one M/s. Sundeep Stationers but also that in his cross examination, CW3 denied existence of any such record as might establish that it was the Accused who had issued stop payment instructions, either in writing or otherwise, vis-à-vis the impugned cheques.
9. Thereafter, the Accused was examined in the exercise of power under Section 313 of the Code of Criminal Procedure, 1973 on 27.06.2016 to which while pleading his innocence, inter alia, averred that the daughter of the Complainant (i.e. Ms. Bhawana Bhatia), on 04.02.2006, threatened to jeopardize the marriage ceremony of his son (Mr. Rohit Chawla) due to be solemnized on 06.02.2006 unless the Accused parted with a sum of Rs.30,00,000/- (rupees thirty lacs only). Failing compliance, Ms. Bhawana Bhatia had even threatened to implicate the Accused (and his family) in false criminal cases and acting under duress of these pressing circumstances, the Accused paid C.C. No. 532197/16 Page 5 of 19 a sum of Rs.50,000/- (rupees fifty thousand only) in cash to the Complainant apart from issuing, inter alia, the impugned cheques. Besides narrating the events leading up to the issuance of the impugned cheques, the Accused denied his liability and/or obligation to pay the amount entailed in the impugned cheques, for they are sans consideration, not to mention that the Complainant, in his income-tax statement, has already declared that the latter has received the entire sum due from Mr. Rohit Chawla through the former.
10. The Accused adduced only two defense witness, namely - himself qua DW1 and one Sh. Randhir Singh Pankaj qua DW2 (sic DW1). Though, to all intents and purposes, DW1 in his statement recorded under Section 315 of the Code of Criminal Procedure, 1973 has reiterated the version rendered by him when examined by this Court in the exercise of power under Section 313 of the Code of Criminal Procedure, 1973 nevertheless, aspects of his testimony as may be peculiar to Section 315 of the Code of Criminal Procedure, 1973 may be encapsulated as hereafter: DW1 has unequivocally deposed that his son (Mr. Rohit Chawla) had a love affair with the daughter of the Complainant (Ms. Bhawana Bhatia) which lasted for around eight years or so and during this time, his son had borrowed a sum of Rs.10,40,000/- (rupees ten lacs forty thousand only) from the aforesaid Ms. Bhawana Bhatia. Reportedly, the aforesaid amount was credited from the account of the Complainant and at the time of execution of Mutual Agreement dated 04.02.2006 (Ex.CW1/1), DW1 had paid a sum of Rs.50,000/- (rupees fifty thousand only) in cash in addition to issuing 59 Post Dated cheques in the like amount in favor of the complainant. Out of the foregoing 59 cheques, the Accused C.C. No. 532197/16 Page 6 of 19 testified to have cleared, all in all, a sum of Rs.12,00,000/-(rupees twelve lacs only), inclusive of Rs.50,000/- (rupees fifty thousand only) paid in cash at the time of execution of Mutual Agreement dated 04.02.2006. DW1 further claimed to have paid a sum of Rs.1,00,000/- (rupees one lac only) in cash against two of the dishonored cheques to one Mr. Pradeep Chawla (allegedly brother in law of the complainant) against acknowledgment. Therefore, on the strength of foregoing deposition, DW1 claimed that he is nowhere indebted to the Complainant. While explaining the reasons for issuance of stop payment instructions vis-à-vis the impugned cheques to the drawee bank, DW1 testified that he has already paid a sum of Rs.1,00,000/- (rupees one lac only) in cash to the Complainant in excess of his liability and therefore, had no legal obligation to pay any amount in excess of Rs.10,41,000/- (rupees ten lacs forty one thousand only). The Accused also deposed that said Ms. Bhawna Bhatia has lodged a false prosecution under Section 376 of the Indian Penal Code, 1860 against his son, i.e. Mr. Rohit Chawla. And according to the witness, the instant complaint case is vexatious.
11. Whereas, the summation of his cross-examination may be encapsulated as: DW1 admitted not just his signatures on the impugned cheques but filled out the particulars thereof as well, though denied the suggestion that his son had borrowed a sum of Rs.70,00,000/- (rupees seventy lacs only) from the daughter of the Complainant. Remarkably, DW1 even admitted that the impugned cheques were issued by him on behalf of his son in order to repay the amount entailed in Mutual Agreement dated 04.02.2006. Nonetheless, DW1 reiterated his stance that Mutual Agreement dated 04.02.2006 (Ex.CW1/1) was got C.C. No. 532197/16 Page 7 of 19 executed to salvage the marriage of his son, albeit it was executed because of his son. The witness, however, denied the suggestion that the cheques amounting to Rs.9,00,000/- (rupees nine lacs only) only have been cleared, as opposed to his claim that cheques worth Rs.12,00,000/- (rupees twelve lacs only) have been cleared from his bank account. DW1 admitted having issued stop payment instructions vis-à-vis cheques cumulatively amounting to Rs.18,00,000/- (rupees eighteen lacs only), but did not remember as to how much funds were available in his bank account at the time of issuance of said instructions.
12. DW-2 (sic DW-1) is the defence witness summoned on behalf of the accused. Ironically, this witness turned hostile inasmuch as pleaded his ignorance on oath vis-a-vis transaction between the Accused on one hand and the Complainant on the other; not to mention denied being privy to any amount of money that might have changed hands between them too.
13. Final arguments were advanced with equal vehemence on behalf of either parties hereto. While it was contended on behalf of the Complainant that the Accused has failed to displace the statutory presumptions envisaged under Section 118 read with Section 139 of the Negotiable Instruments Act, 1881 (as amended to-date) and therefore, liable to be convicted for the commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (as amended to- date); the Accused, per contra, argued that the foregoing statutory presumptions have been cogently rebutted inasmuch as the Complainant has himself failed to establish the existence of any legally enforceable debt thereby, failed to satisfy the most essential C.C. No. 532197/16 Page 8 of 19 requirements to constitute commission of an offence under section 138 of the Negotiable Instruments Act,1881.
14. In the backdrop of the foregoing factual score, this Court shall now proceed to examine the position of law governing the facts peculiar to the instant CC.
15. Law is rather trite on the subject that following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. This position of law has been observed by the Hon'ble Supreme Court of India in the matter of 'Jugesh Sehgal v. Shamsher Singh Gogi', (2009) 14 SCC 683:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) 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;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) 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;
(iv) that cheque is returned by the bank unpaid, either because of 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;
(v) the payee or the holder in due course of the 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 of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) 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."C.C. No. 532197/16 Page 9 of 19
The abovementioned proposition of law was reiterated by the Hon'ble Supreme Court in the matter of 'Aparna A. Shah v. M/s Sheth Developers P. Ltd & Anr.', reported as (2013)8 SCC 71.
16. Admittedly, apart from disputing his liability, inter alia, for lack of privity of contract, no other ingredient enumerated hereto fore has been contested by the Accused during the course of the trial of the instant CC. Legally speaking, and taking into account the statutory presumptions leaning in favor of the Complainant and against the Accused, the onus is on the latter to rebut them, not to mention discharge the burden of proving that he is not indebted to the former in the tune of the amounts entailed in the impugned cheques, or even that the impugned cheques were issued under duress or as opposed to for the purpose otherwise alleged by the Complainant in its complaint.
17. At this stage, it is deemed germane to reproduce the statutory presumptions applicable to the facts entailed in the instant CC, namely -
(Section 118 of the Negotiable Instruments Act, 1881 (as amended to-day)) Presumptions as to negotiable instruments: Until the contrary is provided, the following presumptions shall be made:
(a) of consideration - 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.
(b) as to date - that every negotiable instrument C.C. No. 532197/16 Page 10 of 19 bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity.
(e) as to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
(Section 139 of the Negotiable Instruments Act, 1881 (as amended to-day)) Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred C.C. No. 532197/16 Page 11 of 19 to in section 138 for the discharge, in whole or in part, of any debt or other liability.
Applying the foregoing legal exposition to the facts of the instant CC, this Court shall now proceed to examine the competing pleas raised by the parties hereto.
18. The only plea raised by the Accused in his defense is that the Accused has no privity of contract with the Complainant, for admittedly Mutual Agreement dated 04.02.2006 was executed between Ms. Bhawana Bhatia (i.e. the daughter of the Complainant) qua "the First Party", on the one hand, and Mr. Rohit Chawla (i.e. the son of the Accused) qua "the Second Party", on the other, and in the facts peculiar to the instant CC, even if the impugned cheques were issued by the Accused, the same cannot be said to have been issued for the discharge of his liability, much less vis-à-vis the Complainant. Per contra, the Ld. Counsel for the Complainant has invited the attention of this Court to the following reproduced excerpt from Mutual Agreement dated 04.02.2006 to demonstrate that the Accused, by conduct, to wit - by signing Mutual Agreement dated 04.02.2006 and issuing, inter alia, the impugned cheques, stepped into the shoes of his son and undertook to discharge his admitted liability and therefore, estopped from pleading lack of privity of contract to skirt an acknowledged debt. The accentuated portion is reproduced hereafter and reads as:
"And whereas the second party had pay of Rs.30,00,000/-(Rupees Thirty lacs only) from the first party. That the second party has agreed to repay the entire amount outstanding towards the "First Party" vide several installment, within a period of Five years time i.e. within C.C. No. 532197/16 Page 12 of 19 60 months, from the date of signing of the mutual agreement. That the father of the "second party" namely Sh. Subhash Chawala, has agreed to repay the entire amount towards the first party and has issued 59 post dated cheque(s) totaling a sum of Rs.29,50,000 in favor of the father of "first party", details of which are given hereunder...."
19. At this stage, it would not be out of context to observe that the words "pay" and "father" (both highlighted above) seems to have been inserted / interpolated ex post facto execution of Mutual Agreement dated 04.02.2006, for else there is no cogent reason why the word "father" would find mention above a caret mark (⁁) in blue ink on the "copy of Mutual Agreement dated 04.02.2006" (Ex.CW1/1) relied upon by the Complainant along with CC No.535048/16 whereas, its copies have been filed other complaint cases decided separately vide even dated judgments and final orders. Be that as it may, during scrutiny of the judicial record, it came to the fore that the Complainant, aggrieved by the dishonor of cheque bearing nos. 066942 and 066944, had instituted a civil suit for recovery against the Accused and since, those cheques had also been issued against the same transaction, i.e. under Mutual Agreement dated 04.02.2006, this Court vide order dated 07.12.2019 deemed it rather prudent to requisition the record of case titled as "Shyam Singh Bhatia @ S.S.Bhatia V. Sh. Subhash Chawla" bearing Suit No. 535925/16, inter alia, in order to scrutinize the original Mutual Agreement dated 04.02.2006 for comparison with the one available on record.
20. The judicial record of the aforesaid suit No. 535925/16 was produced by concerned official, Rohini Courts, Delhi on 13.12.2019.
C.C. No. 532197/16 Page 13 of 19upon its perusal, it has come to the fore that the foregoing civil suit stood dismissed vide judgment and final order dated 24.12.2018 passed by the Court of Ms. Vandana Ld. SCJ cum RC (North), Rohini with following reproduced findings which read as:
"....11.12 Further, if we look at the mutual agreement which is the basis of present case party had pay of Rs.30,00,000/- (Rupees Thirty Lacs Only) from the first party 11.13 The above said line does not make any sense, moreover as observed by the Ld. Predecessor of the court and which can be seen from the naked eye that "pay" word as well as the phrase in favour of the "father of" the first party has been added by over writing after deleting some words with flued that too without any signature. As the plaintiff has failed to prove the valid consideration and privity of contract between him and the defendant, therefore all the above said issues are decided against the plaintiff and in favour of the defendant...."
21. The foregoing reproduced excerpts rather leave no iota of doubt that a civil court of ordinary original jurisdiction did not find favor with the cause of the Complainant (i.e. Plaintiff therein) and instead, apart from rendering Mutual Agreement dated 04.02.2006 vague and ambiguous in its language and purport, has returned a conclusive finding that neither a valid consideration for issuance, inter alia, of cheques impugned therein by the Accused (i.e. Defendant therein) nor privity of contract between them two under Mutual Agreement dated 04.02.2006 is established on record. By the by, it has been informed by Ld. Counsel for the complainant that the Complainant has challenged the judgment and final order dated 24.12.2018 and the next date of hearing fixed therein is 19.12.2019.
22. While this Court is cognizant of the provisions envisaged under C.C. No. 532197/16 Page 14 of 19 Section 43 of the Indian Evidence Act, 1872 insofar as they render judgments, orders, or decrees, other than those mentioned in sections 40, 41 and 42 as irrelevant, however, there is no legal impediment that could possibly preclude a criminal court to return the same finding upon appreciation of identical attending facts and circumstances as fell for the determination of a civil court. Having said that, notwithstanding the fact that the concept of privity of contract does not apply as much rigorously to the trials emanating from commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (as amended to- date) as it does to a civil suit for recovery, this Court has no reservation in concurring with the findings returned by the Court of Ms. Vandana, Ld. SCJ cum RC (North) vide judgment and final order dated 24.12.2018 insofar as they have the effect of invalidating Mutual Agreement dated 04.02.2006 as much on account of it being vague and ambiguous, on the one hand, as owing to unacknowledged alterations / interpolations pervaded therein, on the other hand. The plea is answered accordingly.
23. Though, once the sanctity of Mutual Agreement dated 04.02.2006 has been reduced to a naught, or rendered non est, or unenforceable in the eyes of law, the plea of the Complainant that since some of the cheques out of 59 Post Dated cheques issued by the Accused under Mutual Agreement dated 04.02.2006 have already been encashed by the former, the latter is estopped from raising the plea of privity of contract ceases to hold water, for even if it is hypothesized that the privity of contract has no application to facts peculiar to the instant CC, given that the Accused has raised plausible suspicions as much on the quantum of loan amount purportedly availed by Mr. Rohit C.C. No. 532197/16 Page 15 of 19 Chawla from Ms. Bhawana Bhatia during the subsistence of their relationship as on the financial capacity of the Complainant and/or Ms. Bhawana Bhatia to extend the alleged loan facility cumulatively render the version of the Complainant unworthy of credit. Speaking of the fallacy in the argument, it is rather a matter of record that the Complainant could neither put a finger on the exact amount of loan amount allegedly paid to Mr. Rohit Chawla nor depose decisively as to who had extended the alleged loan facility, i.e. he or his daughter. Whereas, on the subject of financial capacity too, once it is admitted that the Complainant is a retired government servant drawing a pension of merely Rs.6,000/- (rupees six thousand only) in the year 2006, much less not filed his income-tax returns for the years 2004 to 2006, i.e. the period during which the loan facility was allegedly extended to the son of the Accused, the onus to establish financial capacity to lend a whopping sum in the tune of Rs.30,00,000/- (rupees thirty lacs only), as alleged in Mutual Agreement dated 04.02.2006, or Rs.70,00,000/-, as suggested on behalf of the Complainant during the course of cross- examination of the Accused (DW1), as the case maybe, ought to have been discharged by the Complainant himself by adducing cogent evidence, including but not limited to filing of bank account statements either of himself or that of his daughter, i.e. Ms. Bhawana Bhatia. In this context, it is deemed pertinent to recount the provisions of Sections 102 and 114 of the Indian Evidence Act, 1872 which read as infra:
"Section 102. On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.C.C. No. 532197/16 Page 16 of 19
Section 114. Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
24. Moreover, in the estimation of this Court, omission to examine Ms. Bhawana Bhatia, in the wake of foregoing exposition, is also fatal for the case of the Complainant inasmuch as it only compounds the cloud of suspicion raised by the Accused in an otherwise frail testimony of CW1 which far from inspires credibility or confidence in this Court, not to mention reeks of foul play insofar as the attending circumstances allegedly culminating into execution of Mutual Agreement dated 04.02.2006 and issuance, inter alia, of the impugned cheques are concerned for no explanation is forthcoming as to what was the mortal exigency to execute mutual agreement on 04.02.2006 when, admittedly, the marriage of the son of the Accused was due to be solemnized two days later i.e. on 06.02.2006. Having said that, this Court is of the opinion that the Accused has been able to displace the statutory presumption stipulated under Section 139 of the Negotiable Instruments Act, 1881 (as amended to-date) vis-à-vis existence of liability in the tune of the amounts entailed in the impugned cheques on the touchstone of balance of probabilities. Therefore, the Accused is entitled to derive the benefit of the same inasmuch as has raised suspicions consistent with the dicta rendered by the Hon'ble Supreme Court of India in the matter of 'Laxmi Dyechem v. State of Gujarat' reported as (2012) 13 SCC 375 wherein, it has been held as infra:
"... Therefore, if the accused is able to establish a probable C.C. No. 532197/16 Page 17 of 19 defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own..."
25. Before parting, this Court came across another salient feature, or defect, that is quite conspicuous from the bare perusal of the impugned cheques that they, albeit signed by the Accused, have nonetheless been drawn on an account maintained by one M/s. Sundeep Stationers. Strangely, no material, whether documentary or nuncupative, has come on record which could enable this Court to form an opinion as regards legal status of the aforesaid M/s. Sundeep Stationers or that of the Accused in M/s. Sundeep Stationers. Glaringly, the Complainant, for reason(s) best known to him, did not even array M/s. Sundeep Stationers as an Accused in the instant CC. Having said that, this Court is therefore, encumbered from returning a conclusive finding to the effect that the impugned cheques have been drawn by the Accused on an account maintained by him; and unless, this can be answered unreservedly, the Complainant cannot maintain a prosecution against the former, for in order to attract penal provision of Section 138 of the Negotiable Instruments Act, 1881 (as amended to-date), the Accused must have drawn the impugned cheque on an account maintained by him. The instant CC is therefore, liable to be dismissed on this count alone.
26. All in all, the collective import of the forgoing exposition lends an irresistible inference that, on the one hand, the Complainant has failed to prove the legality, validity and enforceability of Mutual C.C. No. 532197/16 Page 18 of 19 Agreement dated 04.02.2006 whereas, on the other hand, failed to establish the amount of loan facility allegedly extended by him (or his daughter, as the case maybe) in favor of the son of the Accused which was sought to be repaid by the Accused by issuing, inter alia, the impugned cheques, much less that he (i.e. the Complainant) had the financial capacity to lend the alleged amount. Therefore, upon due circumspection of the totality of foregoing facts and circumstances, including but not limited to scrutiny of material available on record in the adumbral of the legal position governing the field, this Court is of the considered opinion that the Accused has been able to cast plausible doubts / suspicions on the touchstone of preponderance of probabilities thereby, impeaching the credibility of version put forth by the Complainant vide his complaint. That said, this Court hereby, acquits the Accused for the alleged commission of offence under Section 138 of the Negotiable Instruments Act, 1881 complained of by the Complainant in the instant CC.
Digitally signed by AKRITI AKRITI MAHENDRU
MAHENDRU Date: 2019.12.19
17:11:17 +0530
Announced in the open (AKRITI MAHENDRU)
Court on 17.12.2019 MM04 (NI Act) Central,
THC, Delhi.
C.C. No. 532197/16 Page 19 of 19