Delhi District Court
Cc No. 6118/17 Sumitra vs . Reeta Devi Page No. 1 Of 22 on 4 May, 2019
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE - 07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CC No. 6118/17
Old CC No. 382/2/17
IN THE MATTER OF :
Sumitra
W/o Sh. Gulshan
R/o H. No. 825, Sunlight Colony - II,
New Delhi - 14
.......................Complainant
VERSUS
Reeta Devi
w/o Sh. Raju Bharti
R/o Jhuggi No. S - 81/120,
Indira Gandhi Camp - II,
Sunlight Colony - I, New Delhi - 14.
................... Accused
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 1 of 22
OFFENCE COMPLAINED OF : 138 NI ACT
PLEA OF ACCUSED : PLEADED NOT GUILTY
DATE OF INSTITUTION : 25.05.2017
DATE OF RESERVING ORDER : 13.02.2019
FINAL ORDER : ACQUITTED
DATE OF PRONOUNCEMENT : 04.05.2019
JUDGMENT
1. The present complaint was filed by Sumitra [hereinafter referred to as 'Complainant'] against Reeta Devi [hereinafter referred to as 'Accused'] under Section 138 of Negotiable Instruments Act, 1881.
2. It is the case of the complainant that the complainant has given a friendly loan of Rs.6 lakhs to the accused in cash on 25.01.2017 for a period of 02 months. Thereafter on 07.04.2017 the said loan was repaid through the cheque in question but the said cheque was CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 2 of 22 dishonored on being presented for payment, details of which are as follows :
S. Cheque Cheque Amount Cheque Reasons for
No. Number Date filled in drawn on dishonour
cheque (in of cheque
Rs.)
1. 580339 07.04.2017 6,00,000/ Canara Funds
Bank, Insufficient
Maharani
Bagh,
Ashram
Chowk,
New Delhi
- 110014
3. The aforesaid cheque was returned unpaid vide return memo dated 20.04.2017. It may be noted that a legal notice dated 04.05.2017 was sent to the accused for recovery of the said cheque amount but in vain and the present complaint was preferred against the accused.
4. Pre - summoning evidence was led. Complainant stepped in the witness box as CW1. She substantiated the averments made in the complaint and relied upon the following documents :
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 3 of 22 Sl. Documents Exhibit number given No. 1 Receipt cum agreement Ex.CW1/A 2 Cheque bearing no. 580339 Ex. CW1/B dated 07.04.2017 for a sum of Rs.6,00,000/.
3 Cheque return memo dated Ex.CW1/C
07.04.2017
4 Legal notice dated 04.05.2017 Ex.CW1/D
sent to the accused.
5 Postal receipt Ex.CW1/E
6 Speed post tracking report Ex.CW1/F
7 Complaint u/s. 138/142 of NI Inadvertently exhibited as
Act Ex.CW1/F at the time of
exhibition of documents and
same has been mentioned as
Ex.CW1/G in the affidavit in
evidence Ex.CW1/1. To avoid
confusion, same shall be referred
as Ex.CW1/G in the body of this
judgment.
5. On the basis of the pre summoning evidence, accused herein was summoned and notice u/s. 251 CrPC was served upon the accused in which she pleaded not guilty and claimed that she had never issued the cheque in question to the complainant. She claimed that she had given the cheque in question to one Jyoti for allowing the said Jyoti CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 4 of 22 to arrange a loan of Rs.1,50,000/ for the accused. She further claimed that the cheque in question neither has her signatures nor the particulars thereupon were filled by her as she is illiterate. She further claimed that she has not taken any loan from the complainant.
6. Thereafter the complainant stepped in the witness box as CW1 and has adopted her pre summoning evidence. She was thoroughly crossexamined by counsel for the accused. Complainant has also produced her friend namely Neelam as CW2 in support of her case who was also cross examined by the counsel for the accused and thereafter complainant's evidence stood closed. Thus the matter was listed for statement of accused in compliance of mandate of Section 313 Cr.P.C.
7. The accused was examined u/s. 313 CrPC wherein she claimed that she neither filled the cheque in question nor the signatures on the cheque are of hers but claimed that she had given the said cheque in question in blank to one Jyoti and Maya (daughter and mother) (as she wanted to take a loan of Rs.1.5 lakhs from said Jyoti) and not to the complainant / CW1. The accused preferred to lead defence CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 5 of 22 evidence and had examined one Jyoti who stepped in the witness box as DW1.
8. DW1 deposed that accused had given two cheques for availing a loan of Rs.1.5 lakhs in March 2017 to her. She also claimed that Rs.10,000/ was given to her at that time. As per this witness, the said cheques were given to a person without signatures of Reeta and the said cheques were of Canara Bank. This witness later claimed that the said cheques were actually not given to any person but were with her which were later found not traceable with her.
9. Accused also produced one Rajeev Lal from Canara Bank to produce various account documents (like account opening form, account statement etc.) of her account bearing no. 03491073851 with Canara Bank.
10.Both the said witnesses were cross examined by the counsel for the complainant.
11.Thereafter, vide separate statement, accused closed her defence evidence. Thus, matter reached the stage of final arguments.
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 6 of 22
12.Arguments heard. Record perused.
13. As per record, complainant claims to have given a friendly loan of Rs.6 lakhs to the accused on 25.01.2017 for a period of two months.
Thereafter on 07.04.2017 the said loan was repaid through the cheque in question but the said cheque was dishonored on being presented for payment. As per the crossexamination of the complainant / CW1, the complainant has a monthly income of Rs.20,000/ (she being a casual nurse). She has also claimed that she was possessing Rs.6 lakhs with her as she had received Rs.3 lakhs from one Neelam and another Rs.3 lakhs from one Beena which she had given to them as loan. As per the complainant, she had sold her property in Punjab about 67 years back wherefrom she received Rs.12.5 lakhs as sale consideration which was given as loan to Neelam and Beena. Later, the money received from Neelam and Beena in cash was given as loan to the complainant.
14.Now, as per the complainant, she had given the said money to the accused as a friendly loan. It is not clear as to how the complainant knew the accused before giving the said loan or what was the CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 7 of 22 relation between them. As per the complainant, accused was having family relations with her. It is very surprising that a person who is having a monthly income of Rs.20,000/ only and who had sold her property about 67 years back for Rs.12.5 lakhs in Punjab would keep the said money intact for extending the same as loan to Neelam and Beena which in turn was received back for paying the accused.
15. Again, it appears highly suspicious claim of the complainant that a nurse earning Rs.20,000/ per month would be able to save Rs.6 lakhs in cash and the said savings could be given as loan to the accused. But, as per the complainant, it was not her savings which formed the principal for the loan. She claims that she had purportedly sold some property in Punjab about 67 years back for Rs.12.5 lakhs out of which Rs.6 lakhs was given as loan to Neelam and Beena (Rs.3 lakhs each). This loan was returned by Neelam and Beena and then the said money was paid to the accused. This itself appears to be a very suspicious story in as much as the money which was received about 67 years back by the complainant as sale proceeds cannot be reasonably expected to be available in cash with the complainant after expiry of 67 years. Again, it is very difficult to believe that the same money would be given to Neelam and CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 8 of 22 Beena and in an extra ordinary sequence of events, later, the same money was returned in cash by them for payment to the accused. The manner of arranging the funds narrated by the complainant is too extra ordinary story to be reasonably expected to be true.
16. At this stage, it may be noted that as per the complaint Ex.CW1/F (para 2) the complainant had purportedly arranged the said money from her relatives. But, no such relationship is revealed by the complainant during her crossexamination with Neelam and Beena (from whom the money was purportedly arranged) and she simply claims that she had arranged the said money from Neelam and Beena. Thus, there appears to be some contradiction qua the claim of complainant about arranging the money from her relatives and now claiming before this Court during her evidence that the said money belonged to her as sale proceeds of the property which was then given on loan to Neelam and Beena and recovered soon before it was again loaned to the accused.
17. Again, the complainant purportedly had given friendly loan to Neelam and Beena also. It may be noted herein that the entire complaint is completely silent of any loan transaction entered CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 9 of 22 between the complainant on one hand and Neelam / Beena on the other. In other words, complainant does not speak of the manner of arranging money for payment of the alleged loan to the accused. Infact, as per her she took money from her relatives and does not claim that the said money taken from her relatives was her own money received on sale of her property. This is in contradiction to her claim made during her crossexamination, wherein she claims that she arranged the money from Neelam and Beena for payment which was her own money. This contradiction creates some doubt on the veracity and truthfulness of the complainant.
18. At this stage, it may further be noted as per the complaint she had purportedly kept the property papers of the accused while giving the loan. The entire complaint is silent qua this fact. Now, it may be noted that the complainant has placed on record one agreement cumreceipt Ex. CW1/A wherein it is purportedly acknowledged by the accused that she received Rs. 6 lacs from the complainant as friendly loan. I shall come to the veracity of this document at a little later, but at this stage if may be noted that this document, there is no mention of keeping of any property documents of the accused with the complainant as security. If a receiptcumagreement was actually CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 10 of 22 executed between the parties as alleged by the complainant and some documents were actually kept by the complainant with her as security, it was but reasonable to expect that this fact would have also been recoded in Ex. CW1/A. The omission of the same appears to be surprising and again casts some doubt on the veracity and the correctness of CW1/A. I shall come back the veracity of this document a little later.
19. At this stage, it may be noted that complainant produced Neelam in witness box as CW2 who claimed that purportedly she had taken a loan of Rs.3 lakhs from the complainant in February 2016. It came in her crossexamination that said loan was repaid in installments till December 2016. Thus, as per Neelam, she took Rs.3 lakhs from the complainant in February 2016. It may be recalled that complainant claimed to have sold her house 67 years back. She was crossexamined before this court on 23.04.2018 and thus, if I take the words of the complainant qua sale of a property in Punjab as true, she must have sold her property in Punjab somewhere in 2011
- 2012. The sale amount was claimed to be Rs.12.5 lakhs. Now, if Neelam took loan in February 2016, it is very surprising that CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 11 of 22 complainant would keep the said cash amount with her for 45 years before extending the same as loan to Neelam.
20. Again, Neelam purportedly repaid money in installments to the complainant. What were the quantum or frequency of said installments are unclear but, how and on what basis did the complainant claim that the said money received from Neelam formed the principal in part given to the accused is also unclear. It appears highly suspicious that sum of Rs.3 lakhs purportedly received in installments from Neelam would be available as it is with the complainant for extending as loan to the accused. If the money was paid in installments by Neelam, it appears very unreasonable that the said money paid in cash would have been collected to form a sum of Rs. 3 lacs and kept at the house of the complainant in cash for giving loan to the accused. Rs. 3 lacs is not a small sum of money and it is reasonable to expect that in case such installments were actually paid by Neelam from February, 2016 till December, 2016, the complainant would not have kept the said money at her house and would have deposited it in a bank for safety. This is very hard believe that such money would be kept in cash by the complainant in her house itself.
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 12 of 22
21.Again, it may be recalled that the financial capacity of the complainant also appears to be weak and insufficient to extend large sum of Rs.6 lakhs as loan to the accused.
22. The matter does not rest here. It may be noted that only Rs.3 lakhs were purportedly received from Neelam by the complainant which eventually were allegedly given to the accused. Another Rs.3 lakhs were purportedly received from one Beena by the complainant which were then given to the accused. The said Beena was never produced by the complainant before this court as a witness. The reasons thereof are in the knowledge of the complainant herself. During her crossexamination, she claimed that she can produce the said witness before this court but she never moved any application for her summoning or took any steps to produce her as a witness before this court. Thus, one of the crucial witnesses from whom the part principal sum of Rs.3 lakhs was received by the complainant has not been produced before this court. This calls for drawing an adverse inference against the complainant.
23.Matter does not rest here. I am conscious of the settled law that once the signatures on a given negotiable instrument / cheque are CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 13 of 22 admitted, a presumption u/s. 139 of NI Act is raised in favour of the complainant qua the same being issued for a legally recoverable debt. But, in this case, accused denied her signatures on the cheque and claimed that she was never paid any money by the complainant. Thus, the presumption u/s. 139 of NI Act may not be available to the complainant at the first instance.
24.At this stage, it may be noted that Counsel for the complainant argued before this court that the cheque in question in this case was dishonored for reasons of insufficiency of funds and not because of mismatch in signatures. He further argued that accused herself had summoned her bank witness as DW2 who had stated on oath that the reason for bouncing of cheque in this case was insufficiency of funds in the bank account of the accused and the said reason is assigned after the signatures of the payee are matched with the records. On the strength of the same, it was argued by Counsel for the complainant that if the testimony of DW2 is considered alongwith the cheque return memo Ex.CW1/C, the signatures of the accused have been duly proved and thus, presumption u/s. 139 of NI Act shall be available to his client which shall mean that he is not CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 14 of 22 required to show whether his client had a legally recoverable debt from the accused or not.
25. In answer to the said contention, suffice is to say that the said presumption u/s. 139 of NI Act is a rebuttable presumption. In the present case, complainant had relied upon an agreement Ex.CW1/A apart from the cheque in question Ex.CW1/B to argue that she had given a loan of Rs.6 lakhs to the accused. Once the complainant has relied upon the said document, the said document shall have to be considered to see as to whether this can form basis of the alleged loan of Rs. 6 lacs purportedly given to the accused or not.
26.A perusal of Ex.CW1/A shows that the signatures at point A on the said document does not match with the signatures on the cheque in question. Infact, this fact has been admitted by the complainant herself during her crossexamination dated 23.04.2018 which reads as under :
At this stage witness is shown Ex.CW1/A and at point A and signatures on the cheque in question Ex.CW1/B. It is correct that the signatures at point A on Ex.CW1/A and on Ex.CW1/B are different.
Vol. On Ex.CW1/A at point A one "line" (danda) in the signatures is extra (between the letter "र" and " " there is CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 15 of 22 a hyphen "" which is being referred above in the testimony of the witness). I had pointed out the same to the accused who said that it does not matter because both signatures are mine. (emphasis supplied)
27. Thus, admittedly the signatures of the accused on Ex.CW1/A does not match with her signatures on cheque in question. This means that even if I take the signatures on the cheque in question as those of the accused (based on the evidence of DW2), signatures on the receipt/CW1/A appear to not to belong to the accused. Thus, if I take that CW1/A is not signed by the accused, the entire case of the complainant that on the basis of this receipt she gave a loan of Rs. 6 lacs to the accused falls.
28. Again, atleast four different pens have been used on Ex.CW1/A with purported signatures of Reeta Devi being in different pen and other signatures and handwriting on the said receipt being in different pen. Signatures of witnesses Neelam and Beena are also in different pens (two different pens used). Again, the particulars of Neelam and Beena are again written in different pen. It is very surprising that if Ex.CW1/A was executed at the same time, 04 different pens shall be used by persons executing / witnessing it. This appears to be very CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 16 of 22 unreasonable in the usual course of things and again casts a shadow qua the execution of Ex. CW1/A.
29. Again, a very surprising thing to note in Ex.CW1/A is that at the point where the particulars of Neelam are written i.e. "Neelam w/o Sushil r/o C - 8, Siddharth Basti, Hari Nagar Ashram New Delhi 14", the same have been written in a manner so as to circumscribe the signatures of witness Beena. It means if I analyze Ex.CW1/A, it appears to me that the time when the particulars of Neelam i.e. "Neelam w/o Sushil r/o C - 8, Siddharth Basti, Hari Nagar Ashram New Delhi 14" were written, signatures of Beena were already present on the document. There is no other explanation to this because the manner in which the text "Neelam w/o Sushil r/o C - 8, Siddharth Basti, Hari Nagar Ashram New Delhi 14" circumscribes the signatures of Beena shows that only if the signatures of Beena and particulars of Neelam are written at different times only then the particulars of Neelam would circumscribe the signatures of Beena in that manner. A close scrutiny of the said fact shows that the signatures of Neelam and Beena on Ex.CW1/A may have been present on Ex.CW1/A before the text thereupon was written in hand. This again makes the document Ex. CW1/A a suspicious document.
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 17 of 22 It appears that this document may not have been executed with the accused and the witnesses present at the same time and the claim of the witnesses Neelam and Beena that they witnessed the accused signing Ex. CW1/A may be incorrect. At this stage, it may be recalled that witness Neelam claimed that she also signed Ex. CW 1/A. But, in her examination in chief as CW2, she did not claim to have seen accused Reeta signing Ex. CW1/A. This is in line to my finding that Ex. CW1/A was not witnessed by Neelam or Beena in as much as they did not see accused actually signing the document in their presence and/or put their signatures on the said document in the presence of the accused. As already noted, the signatures on Ex.CW1/A of Reeta Devi / accused does not match with her signatures on the cheque in question. Thus, in my opinion Ex. CW 1/A is nothing but a piece of paper which does not show that any loan was given by the complainant to the accused.
30. Again, the cheque in question as per the complainant was not filled by the accused (see crossexamination of the complainant). Accused herein is an illiterate person which is evident from the manner in which she signs. Her signatures appear to be shaky and of a person who has difficulty in making letters because of her educational CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 18 of 22 background. Thus, it appears that the cheque in question was never filled by her. But, except for the signatures on the cheque in question, the other particulars of the cheque are filled by a steady hand which appears to be of an educated person. Complainant is completely silent on the identity of the person who filled in the cheque.
31.Thus, what can be deduced from the aforesaid discussion is that the purported agreement Ex.CW1/A which was produced by the complainant as proof of payment of Rs.6 lakhs in cash is shrouded in suspicion. The said document does not appear to bear the signatures of the accused and prima facie appears to not have been executed in the presence of persons signing thereupon. Such suspicious document cannot be read in evidence to infer payment of money of Rs.6 lakhs by the complainant to the accused. It may be recalled herein that one of the witnesses to the said document namely Beena was not summoned before this court by the complainant.
32.Thus, in my opinion, Ex.CW1/A is a suspicious document which cannot be taken to show payment of any loan by the complainant to CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 19 of 22 the accused. Further still, the cheque in question also does not appear to have been issued by Reeta in the manner claimed by the complainant. Even if I take that there is an initial presumption of debt, the same is rebutted by the cloud of suspicion created during the crossexamination of the complainant wherein her receipt Ex.CW1/A (which supports her claim to debt qua the cheque) has become a suspicious document. With the accused herein being an illiterate lady who can hardly sign, it was for the complainant to explain as to who filled in the cheque for the accused.
33. Again, at this stage, it may be recalled that the accused claimed throughout that the cheque in question was given to one Jyoti for arranging a loan for her. This Jyoti appeared in the witness box to claim that indeed two cheques were given to her by the accused of Canara Bank for arranging a loan. Even though, she could not identify the cheque in question as one of the cheques, she supported the claim of the accused qua handing over of some cheques to her. A probable defence is raised by the accused in as much as considering the background from which the parties and witnesses belong, it cannot expected that witness Jyoti would have remembered the number of the cheque given to her by the accused.
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 20 of 22 It is possible that the accused had in deed given a cheque to Jyoti which somehow came in the hands of the complainant and thereafter the same was misused. Jyoti is an independent witness and nothing has come out in her crossexamination to believe that she will favour the accused for any reason.
34.At this stage, the financial capacity of the complainant qua giving of a large sum of Rs.6 lakhs may also be recalled and it may be reiterated even at the cost of repetition that a nurse who works on casual basis only would be able to save Rs.6 lakhs for giving the same as interest free loan to a person. Again, claim of the complainant qua arranging of Rs.6 lakhs from Neelam and Beena is also highly suspicious. Again, her receipt Ex.CW1/A and the manner of drawing of cheque Ex.CW1/B is shrouded in deep suspicion.
35. If I take a holistic view of entire evidence before me, in my opinion, complainant appears to have somehow come in possession of the cheque in question which eventually appears to have been misused. Be that as it may, in my opinion, considering the evidence on record and facts and circumstances of the case, this is a fit case where CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 21 of 22 benefit of doubt should go to the accused. Even if I take that a presumption u/s. 139 NI Act was in favour of the complainant, for reasons already recorded, the same was successfully rebutted by the accused during the crossexamination of the complainant's witnesses. If that be the case, accused is entitled to be acquitted in this case. It is ordered accordingly.
Digitally
signed by
Announced in the Open AASHISH Aashish Gupta
AASHISH GUPTA
Court on 04th day of May, 2019
GUPTA Date: MM(South East)07
2019.05.04 Saket, New Delhi
16:30:10
+0700
CC No. 6118/17 Sumitra V/s. Reeta Devi Page no. 22 of 22