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[Cites 9, Cited by 0]

Delhi District Court

Surender Nath Sharma vs . R.D. Yadav on 23 March, 2022

                  IN THE COURT OF MR. VAIBHAV CHAURASIA
             METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
                     ROHINI DISTRICT COURTS : NEW DELHI


Surender Nath Sharma Vs. R.D. Yadav
PS Vijay Vihar
U/s 138 Negotiable Instruments Act


Date of Institution                :     01.04.2011
Date of Judgment                   :     23.03.2022


                              JUDGMENT

(1) Serial number of the case       :    3960/2016

(2) Name of the complainant         :    Sh. Surender Nath Sharma (S.N. Sharma)
                                         S/o.: Late Sh. Yogender Nath Sharma
                                         R/o.: 136, B­5, Sector­4, Rohini, Delhi.

(3) Name of the accused            :    R.D. Yadav
                                        S/o Late Sh. Ghurah Yadav,
                                        R/o: A­1/326, Madhu Vihar, Uttam Nagar,
                                        Delhi - 110059.


(4) Offence complained of/ proved: U/s 138 Negotiable Instruments Act, 1881

(5) Plea of the accused             :    Pleaded not guilty

(6) Final Order                    :     ACQUITTED

(7) Reserved for judgment on :           23.03.2022.



                   BRIEF STATEMENT OF THE REASONS FOR THE DECISION

1. In brief, it is the case of the complainant is that the nephew of the accused namely Nagender Yadav was in partnership with the son of the Page no. 1 of 32 complainant namely Aman Sharma; that the nephew of the accused was junior to son­in­law of the complainant namely Pankaj Sharma who was senior by 3 years in the Company where nephew of the accused also worked; that Nagender Yadav left the job and floated his Pharmaceutical Distribution Company and he was short on funds to expand his business therefore Pankaj Sharma, son­in­law of the complainant introduced the nephew of the accused to the complainant for financing the business and to the extent that he is ready to induct the financer as a partner; that the profit of about 10 to 15 percent was assured; the complainant's son joined the business of the nephew of the accused as partner and since the shortage of fund was to the tune of 20­25 lakhs, the nephew of the accused needed financer as he did not have any immovable property; that after being fully convinced, the complainant mortgaged one of his flat bearing no. 105, Pocket­16 A, Sector 22, Rohini, Delhi - 1100852 Punjab National Bank, F block, Vikaspuri, Delhi and bank granted a limit sanctioned up to Rs. 24,00,000 to the firm; that the complainant started doing business with the nephew of the accused and got registered the partnership firm namely M/s Meditreat Pharmaceuticals and partnership deed was executed between Nagender Yadav and Aman Sharma on 16/11/2009; that on many occasions the complainant paid up to Rs. 20,00,000 through cheque to Nagender Yadav and same was repaid and therefrom Nagender Yadav gained total confidence of the complainant; Page no. 2 of 32 Though the business ran smoothly however subsequently Aman Sharma came to know the cheque of the suppliers started dishonouring despite the limit of credit facility and further that Nagender Yadav has sold goods in cash in absence of him from godown at night and on holidays; it was further found that Nagender Yadav has opened various accounts in various banks including Standard Chartered and Indian Overseas Bank in his own name; that he has diverted huge amount of cash of partnership firm to the tune of Rs. 18 lacs to 20lacs; that upon insistence of Aman Sharma, the administration and control of partnership firm was changed and therefrom all the cheques were to be signed by Aman Sharma only and on mutual agreement intimation regarding this was sent to the concerned bank; that thereafter Nagender Yadav stated that he wished to end the partnership for which Aman Sharma agreed and therefrom it was decided that since the wife of Nagender Yadav i.e. Sangeeta Yadav owes flat at Bindapur, Dwarka, Delhi and therefore accused must mortgage the same to the bank so that bank would release the documents of ownership of Smt. Aarti Sharma i.e. wife of the complainant whose property was mortgaged to provide the credit facility; it was further requested by the Nagender Yadav to the complainant as well as his son that there is shortage of about Rs. 12 to 13 lacs therefore he requested for Rs. 12.5 lacs; the complainant lent loan of Rs. 12,50,000 to Sangeeta Yadav i.e wife of nephew of the accused namely Nagender Yadav and on her personal request on 14.12.2010, the Page no. 3 of 32 payment was made through cheque bearing no. 542646 dated 14.12.2010 drawn on Punjab National Bank, Sector 5, Rohini Delhi which was given in cash and to that effect relevant documents were also signed; that after getting loan of Rs. 12.5 Lacs from the Complainant, FDR of Rs. 6,00,000 in the name of wife of nephew of the accused namely Smt. Sangeeta Yadav was prepared by her and thereafter her property was mortgaged to the bank and then also pledged their FDR to the bank and complainant's wife documents were released thereforth; it is further has been alleged that when there was cordial relationship between the Complainant and the Nagender Yadav, Nagender Yadav came along with the accused and requested the complainant to give him the loan of Rs. 24 lacs as loan so that he may be able to make repayment of earlier loans taken on much higher interest at the rate of 10 percent per month for the marriage of his daughter; that in view of the cordial relation, complainant issue cheque bearing no. 542637 dated 13/09/2010 for Rs. 24,00,000 drawn at Punjab National Bank, Sector 5, Rohini; that after the end of the partnership with Nagendra Yadav, the complainant and his son asked the accused to return Rs. 24,00,000 which was taken by him as a loan, however it was assured that Rs. 24 lacs as well as Rs. 12.5 lacs shall be paid

2. Further to repay the loan amount of Rs. 24,00,000, the cheque bearing no.

085296 drawn on Andhra Bank, Dwarka, New Delhi dated 24/12/2010 in Page no. 4 of 32 favour of Complainant was issued; that since loan amount was not paid by the accused, the Complainant presented the above­mentioned cheque before his banker's which was dishonoured and Complainant came to know about the same through memo dated 27/01/2011 which was dishonoured with remarks "payment stopped by drawer"; Complainant duly intimated the accused and under compelling circumstances was forced to get issued a legal notice dated 22/02/2001 which was duly served upon the accused as Complainant received back the Acknowledgment Card duly signed by the accused on 03/03/2011; that instead of complying with the notice, accused sent a frivolous reply dated 08/03/2011 and since no amount has been paid by the accused towards the loan, accused herein is being prosecuted under Section 138 of Negotiable Instrument Act, 1881.

3. The complainant led pre­summoning evidence by way of affidavit (Ex.CW1/9) and relied upon documents i.e., :Cheque issued by accused, Ex.CW-1/1, returning memo, Ex.CW-1/2, legal notice, Ex.CW-1/3, postal registry slip Ex. CW-1/4, UPC receipt Ex.CW-1/5, Courier receipt, Ex.CW­ 1/6, returned AD card, Ex.CW-1/7, reply of legal notice, Ex.CW-1/8.

4. After the accused entered appearance, he was admitted to bail and notice was framed against him on 25.01.2012 by the Ld. Predecessor wherein the accused stated his defence that the cheque in question was Page no. 5 of 32 not issued against any debt but was issued and handed over to the complainant security towards release of the flat in name of Mrs. Arti Sharma, wife of the Complainant from the Punjab National Bank, F Block, Vikaspuri which stood mortgaged for the partnership loan/OD limit of Rs. 24,00,000. The said partnership was between the son of the complainant and his nephew. The complaint is false.

5. After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 29/08/2012, the accused was permitted to cross­examine the complainant.

6. During his evidence, the complainant was duly cross examined by the Counsel for accused in which he stated that he is Advocate by Profession and was employed with Punjab National Bank as Manager and had taken voluntary retirement on health grounds. Complainant denied the suggestion that he had no business relationship with the accused before 12/09/2012 and to the contrary stated that he had family relations with the accused and had a visiting terms prior to 12/09/2012. Complainant admitted that his son and nephew of the accused had entered into partnership, though he does not remember the exact date of registration of the partnership deed but must be around 01/11/2009. Complainant admitted that before entering into partnership, complainant was running Page no. 6 of 32 business as sole proprietor. Complainant further admitted that the Cash Credit Limit of Rs. 24,00,000 was granted to the aforesaid partnership firm of his son on 17/03/2010 from Punjab National Bank, Vikaspuri, Delhi, however admitted that his wife Mrs. Arti Sharma was guarantor and not his mother Smt. Kamla Devi. Complainant further admitted that his wife Smt. Arti Sharma had kept her flat as mortgage with the bank for the Credit Facility and same was released in the month of December 2010 and in order to get it released, the wife of the nephew of the accused, i.e. Mrs. Sangeeta Yadav had mortgaged her flat bearing no. 217, Ground Floor, Block E, Type A, Uttam Nagar, New Delhi along with the FDR of Rs. 6,00,000. Complainant further denied that joint account no. 417009300004135 had been seized by the bank for illegal parking of funds of partnership account and that is why the complaint is not disclosing deliberately the last transaction of the aforesaid joint account. Complainant further admitted that the bank has illegally seized his aforesaid bank account for which the petition has been preferred to the Hon'ble High Court of Delhi. Complainant further denied that he never had any loan transaction with the accused and further denied that he was present on 13/09/2010 when the bearer cheque no. 542637 dated 13/09/2009 issued by him for the encashment of Rs. 24,00,000 was presented in the branch of Punjab National Bank. Complainant further denied that he along with his son and his son­in­law has visited the Page no. 7 of 32 residence of the accused on 12/09/2010 and got executed documents which includes MOU, aforesaid bearers cheque and received a cheque of accused in blank except the amount filled in the cheque. Complainant was confronted with MOU i.e Ex. CW1/DX­1 to which the complainant has denied to have known anything about it and further that original of such MOU is with him. Complainant admitted that he has visited the accused since the year 2009 till December 2010. Complainant further admitted that he is an income tax payee though he has not reflected the loan given to the accused of Rs. 24,00,000 in his income tax for the reason that it was short and friendly loan and was to be returned within 3 months. It was further admitted that the accused was introduced to him by Sh. Nagender Yadav, nephew of the accused, who was introduced to him for the first time on 12.09.2010. Complainant further denied that his son­in­law was running pharmaceutical company and further he could not remember if his son­in­law was running pharmaceutical company by the name of Avencia Biologicals. It has been admitted by the complainant that cheque Ex. CW 1 and the cheque in question issued by accused Ex.CW­1/1 was issued simultaneously at the same time on 12/09/2010 however it was denied the said cheque were issued at the residence of the accused but were issued rather at the residence of the complainant. Complainant denied that he was ever present on 13/09/2010 in his bank when the bearer cheque Ex. CW 1 was presented for encashment however he has Page no. 8 of 32 deputed his son to deposit a sum of Rs. 24,35,000/­into his account so that the cheque issued by him for Rs. 24,00,000 in favour of accused is passed/paid smoothly; he further acknowledged to not have known the entries mentioned in the bank statement in the same sequence in which transactions has actually taken place and further denied that he is not answering deliberately as it would substantiate that the bank balance in his account was not sufficient for clearing the cheque CW 1. Complainant further could not remember exactly the Credit Entry of Rs. 24,35,000 in his account on 13/09/2010 at 1:47 PM and same also with respect to debit entry of Rs. 24,00,000 at 12:18 PM. Complainant further admitted that the signatures of exhibit CW 1 at point A were not appended in his presence and further denied to have actively been involved in the business of M/s Meditreat Pharmaceuticals and denied the paragraph 8 of his affidavit regarding his active involvement in such pharmaceutical company. As to the question whether complement and his family members have received Rs. 20,00,000 through four cheques dated 02.03.2010 via partnership funds, to which Complainant has responded that since he had given the amount of Rs. 24,36,238/­to the firm therefore same was returned by the firm and further it has been acknowledged that complainant's son was partner in the firm and he could not tell exactly as to how much amount his son has pooled into the partnership firm. Complainant denied that his son has not put any investment in the firm Page no. 9 of 32 and further denied that the accused has issued the present cheque in his favour as security against the release of flat of his wife and further complainant submitted that he do not know if there was dispute in partnership business and his son wanted to severe all relationships to end the partnership. Complainant further denied that he had shown his inclination to get the said flat of his wife released from the bank in the month of September 2010. Complainant was ignorant whether partnership firm still continues or stands dissolved. Complainant denied that the dispute arose in the partnership business due to illegal drawing from the funds of partnership firm, by transferring funds to Avecia Biologicals on false invoices and by not truly accounting the profit of partnership firm by his son at his instance. Complainant submitted that he had nothing to do with the functioning of partnership firm and cheque was issued by the accused against his individual amount given to the accused. Complainant further denied that the transaction took place at the house of the accused and there was no delivery of the bearer cheque and denied to not have given loan of Rs. 24,00,000 to the accused and further denied that the entire transaction where the accused has issued cheque in question and documents were for the security for release of flat of his wife. Complainant further deposed that he was not deposing falsely.

7. Court witness Ms. Suchitra Raina, Manager, Punjab National Bank was examined on 27/02/2013 wherein she was summoned to file certified Page no. 10 of 32 copies which were exhibited as CW 3 to CW 14 and were running into pages from 1­69 and she was discharged.

8. Complainant has examined two other witness i.e Gururaj and Rajinder Gupta on 09/01/2014.

9. Sh. Gururaj, Deputy Manager, Andhra Bank, Sector 10, Dwarka was examined and cross­examined as CW2 wherein he had bought the relevant record i.e. account opening form of accused and account no. 3326 and the statement of account and stop payment request against the cheque no. 085296 dated 24/12/2010. The statement of account was exhibited as Ex.CW-2/1 and stop request as EX.CW-2/2 and original specimen signature and account opening form is Ex.CW-2/3. CW2 was cross­ examined wherein he could not confirm whether the account was active or not and further deposed that he cannot tell whether the account is active and not without accessing the computer at his branch.

10. Sh. Rajender Gupta, Officer, Punjab National Bank, Sector 5, Rohini was examined as CW 3 wherein he has brought relevant records i.e. cheque no. 542637 dated 13/09/2010 of Rs. 24,00,000 and the deposit slip of account no. 4171009300004135 dated 13/09/2010 for Rs. 24,35,000 and further confirmed payment was made to the accused on proper Page no. 11 of 32 identification as per record and same was exhibited as EX. CW­3/1 and cash deposit slip was EX. CW­3/2. On cross examination, CW 3 has deposed that he has been working in bank since 1978 and has been officer in the said branch since June 2013. He further deposed that at the time of encashment i.e. 13/09/2010 he was not in the branch. Further he has not brought complete records of the account from which cheque EX. CW­ 1 was issued. It was deposed that it is a joint account with Smt. Arti Sharma, and witness is well acquainted with the banking process in the system as well as collection policy and guidelines. Specific question was put to CW 3 regarding high­value account payee cheques of value more than one lacs are routed as per cheque collection policy through RBI only by sending an email of the cheque, to which CW 3 responded that the cheque which belongs to other bank except PNB are routed through clearing house and cheque belonging to their own branch will be paid locally at branch level. CW 3 further denied that he is making any false statement. Further he submitted that for the payment of bearer cheque of high denomination, the same need not still be routed through RBI. CW3 further deposed that as requested in letter Ex.CW-3/D1, which bears the seal of the branch of the bank, wherein he was supposed to preserve the CCTV footage of payment counter for 13/09/2010 was not preserved and he was also was not aware of the same. CW 3 deposed he cannot say whether the account of the Complainant was opened in the year 2007 and Page no. 12 of 32 further whether the complainant account had never had the bank balance of above of Rs. 1,00,000 from 2007 to January 2010. CW 3 further deposed that it is correct that the bank used to take ID proof from the person who is presenting the bearer cheque, however the same is not necessary. CW3 deposed whoever presents the cheque for encashment, they took a signature on the back of the cheque and sometimes noted down their address also. CW 3 further deposed that the signature and address written on the back of the Ex.CW-1 was written by the presenter who has presented the cheque could not be commented upon by him as he was not posted in the concerned branch. CW 3 further deposed that he do not know if the bank account of the complainant have been freezed by their bank for illegal parking of funds and further he does not know that the complainant is retired Senior Manager of their own bank and further deposed that he is not deposing falsely. Complainant evidence was closed and matter was fixed for the statement of accused under section 313/281 CRPC.

11. The statement of accused was thereafter recorded under Sec 313/281 CrPC on 22.08.2014 wherein the entire incriminating evidence was put to the accused and he reiterated his defence. He stated that the cheque bears his signature only however it was issued as security in order to get released the flat of wife of the complainant. It was further admitted that Page no. 13 of 32 the cheque was dishonoured for the reason 'payments stopped by the drawer'. Accused further stated that he received the legal notice EX. CW­ 1/3 and also replied the same by sending a reply dated 08/03/2011 which is EX. CW­1/8. Accused for the stated that the complaint was filed against him for the reason to extract money due to dispute in the partnership of the son of the complainant and his nephew. It was further stated by the accused that the son of the complainant has started a partnership with the running proprietorship concern of his nephew in the name of M/s Meditreat Pharmaceuticals and because of some dispute in the partnership firm, some persons with complainant had come to his residence on 12/09/2010 and asked him to give security for release of flat in the name of the wife of the complainant which was mortgaged with Punjab National Bank for the grant of CC limit of Rs. 24,00,000. Accused had no knowledge of any such dispute in the partnership before 12/09/2010 and accused had not known the complainant before 12/09/2010 but since Complainant wanted some security from him to get released the flat of his wife and he agreed to give security on asking of his nephew namely Nagender Yadav and for this complainant got signed one signature on the back of the cheque of the complainant and an MOU was signed between the parties on type of plain paper along with two stamp papers of Rs. 100/­ each in blank and complainant also got received his cheque of Rs. 24,00,000 which was undated as security. Neither the complainant has Page no. 14 of 32 given him any of his cheque including the one he got signed on the back on 12/09/2010, nor he had presented any cheque of the complainant for encashment. He had not taken loan amount from the complainant nor gave the cheque in question for repayment of any loan. The cheque received by the complainant from him of Rs. 24,00,000 was filled by the complainant himself without his knowledge and consent and presented it for encashment for oblique motives. Although the complainant has assured him to return all the documents and cheque after the release of the flat of his wife but after repeated requests in first week of November 2010, the Complainant gave photocopy of the MOU which have been placed before this Honourable Court. In December 2010, flat of the wife of the Complainant was released, however due to dispute in partnership, his cheque of Rs. 24,00,000 which was given by him as security was not returned in spite of his repeated request and he has not taken any action at that time due to assurance of his nephew, however when the accused's nephew went missing and FIR was lodged in this regard by the family members, accused gave instruction to his bank to stop the payment of the said cheque. Accused was posted on 13/09/2010 at R. K. Khanna Tennis Stadium on special duty under Commonwealth Games, 2010 as officer of MTNL. Accused further submitted his intention to lead evidence in his defence.

Page no. 15 of 32

12. Accused has examined three witnesses. DW - 1 Sh. S.N. Rai, DW - 2 Sh. S.K. Gupta and DW­3 as himself

13. DW - 1, Sh. S.N. Rai, Sub­Divisional Engineer, MTNL was examined and cross­examined on 15/10/2014 wherein he has brought office order dated 20/10/2010 Ex.DW-1/1, office order dated 26/08/2000 and exhibited as Ex.DW-1/2 and enclosures list exhibited at Ex.DW-1/3. DW - 1 was cross­examined wherein he deposed that accused was ordered on 18/08/2010 to go on the deputation for the Commonwealth Games and on 26/08/2010 the said order was handed over to the accused for necessary compliance. He did not know as to where and when accused has joined his duty for the purpose of Commonwealth Games. He cannot tell what was the timing of his duty during his deputation. He did not know as to on which date to perform his duty in Commonwealth Games and what was the duration of timing of his duty. He does not have personal knowledge of the fact of the case and he is deposing only on the basis of record. He cannot tell about his actual location during his deputation as the same can be apprised only by his supervisor. He further volunteered that as per his record his place of posting on the petition was R.K. Khanna Stadium and no record is being maintained by their office regarding the movement of persons who were deputed in the aforesaid manner at the place of the deputation.

Page no. 16 of 32

14. DW - 2, Sh. S.K. Gupta, Officer, PNB, Sector 5 Rohini was summoned witness and had brought journal entries of the relevant period. He deposed that the document brought by him are known as journals and further he was cross examined by the Counsel for the accused as he was not supporting his case and same was allowed. On cross­examination he deposed that he do not have any knowledge whether his bank maintains a document by the name of journal which records transactions time and date and further denied that the document Ex.DW-2/A (Colly) by him is not the journal and further he deposed that he is not deposing falsely at the instance of complainant as the complainant is a retired bank manager.

15. DW­3 i.e. accused was examined­in­chief wherein he deposed that he has no family or business relation with the complainant. The complainant for the first time came to his residence on 12/09/2010 along with couple of other person. Before that, he had never met the complainant. The complainant had come to seek security from him for the release of flat of his wife which was kept as a security with the bank for the grant of CC limit of Rs. 24,00,000 to the partnership firm. Before 12/09/2010, he was not aware that the son of the complainant was partner with his nephew. However, on the insistence of the complainant and his nephew, he agreed to give security for release of the flat of the complainant's wife. In order to Page no. 17 of 32 obtain such security from him, the complainant, after assurance of the documentation, being done only for security, obtained his one signature on the back of the cheque brought by complainant, beside an MOU was tried on plain paper and two stamp paper of Rs. 100/­ each. The complainant also obtain one cheque of his of Rs. 24,00,000 which was undated and was only for security. All these aforesaid documents were retained and were taken back by the complainant. The complainant has also taken his cheque on the back of which one signature was obtained and was not given to him. The complainant has assured him that after the release of the flat, all the documents obtained from him shall be handed over to him. He has not taken any loan from the complainant. The cheque of Rs. 24,00,000 which was signed from him was filled up by the complainant without his knowledge and consent and was presented for encashment. The aforesaid cheque was not given by him to the complainant for any repayment of loan, but was only given as security for release of the flat of the wife of the complainant. After his repeated request, the complainant has sent only photocopy of MOU through accused's nephew without sending the documents. The flat of the complainant's wife was released from the bank in December 2010, but complainant has not returned his documents including his cheques and assurance of his nephew Nagender, he did not pursue the matter. After his nephew got misplaced on 25/12/2010, the accused instructed his bank Page no. 18 of 32 to block the said cheque. The alleged cheque of the complainant dated 13/09/2000 was not presented by him for encashment as he was posted as single nodal officer of MTNL at R.K. Khanna Tennis Stadium. He never took any leave during his deputation period. In these circumstances, as he had already stated, the question of being present in the bank on 13/09/2010, does not arise. He had not taken any loan from the complainant or any other person for the marriage of his daughter. After receiving the notice of the complainant, he has written letter Ex.CW­3/D1 to the concerned branch of the bank for providing the CCTV footage, which was not provided to him. That he has given reply to the legal notice of the complainant and said reply is already on record. On the complainant cheque dated 13/09/2010, he had signed only at one place at the back of the cheque and other material written on the front and back of the cheque were not in his handwriting. Accused further deposed that present complaint is false and has been filed to extort money from him. Accused was cross­examined by Learned Counsel of the Complainant. Accused deposed that his nephew used to live with him along with his family in his house. Accused admitted that his nephew was partner in the pharmaceutical company however denied that the office was located and was operated from his residence, rather it was 800 metre away from his residence. Accused denied that his son used to draw salary from M/s Meditreat pharmaceuticals or used to draw any salary from such firm. Page no. 19 of 32 Accused deposed that his daughter never got married in November - December 2009 rather got married in February 2010 from Lucknow and further denied that invitation card was not given to the complainant. Accused denied that he has approached complainant number of times for advancing him loan of Rs. 25­30 lacs as he was under huge debt from various parties of the market at the time of marriage of his daughter. Accused further denied that he had visited along with his son and nephew to the house of Complainant on 12/09/2010 and made the request for the advancement of loan which will be returned within 3 months and further denied that the Complainant agreed to give him short­term loan of Rs. 2,400,000. Accused further denied that the complainant had given cheque bearing no. 542637 drawn on PNB bank dated 13/09/2010 for Rs. 24,00,000 in his favour which is EX. CW - 1. Accused admitted that EX. CW - 1 bears his signature at point B only however he denied the other signature at the rear leaf of the cheque. Accused further denied that he never resided at Block A­1, 326, Madhu Vihar. Further accused admitted that he has issued cheque bearing no. 085296 on Andhra Bank in favour of complainant dated 24/12/2010 and further it bears signature at point A as Ex. CW1/1. Further accused deposed that he has not deposed falsely in his examination­in­chief in order to escape from legal liability towards the cheque in dispute which he has issued to the complainant. Page no. 20 of 32

16. Final arguments was advanced by Sh. Nitin Shokeen, Ld counsel for the Complainant and by Sh. Ajit Kumar , Ld. Counsel for the accused,which have been carefully considered alongwith the entire evidence on record.

17. To prove an offence under Section 138 NI Act, it is required to be proved that:

(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either 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 has been 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 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid;

and Page no. 21 of 32

(vi) The drawer of such cheque failed 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.

18. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by him with a bank and hence the ingredient (i) is deemed to be proved as not disputed.

19. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex.CW1/1 dated 24.12.2010 was returned dishonoured on 27.01.2011. During his cross­examination, no questions were put to the complainant nor any suggestions were given to him as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.

20. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by her in her statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.

Page no. 22 of 32

21. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, he sent notice dated 22.02.2011 (Ex CW1/3) to the accused for return of the cheque amount vide speed post and courier on 22.02.2011 ie within 30 days of dishonour of the cheque. The complainant also relied upon receipts (Ex CW1/5, Ex CW1/6 and Ex CW1/7). The accused has duly replied the same vide legal notice dated 08/03/2011 which is already exhibited as Ex.CW1/8. Hence ingredient (v) stands proved.

22. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved. DEBT/LIABILITY

23. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non­existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a Page no. 23 of 32 matter of fact and upon its failure to prove would dis­entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the non­existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non­existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).

24. The NI Act also provides under Section 139 that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Thus, 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. 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 Page no. 24 of 32 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. 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. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).

25. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.

26. It is pertinent to mention herein that the court witness who has to deposed in the present case i.e. Ms. Suchitra Gupta, her evidence was also brought on record in the case against the daughter­in­law of the present accused by the same present complainant in case no. 3914/16. It is pertinent to mention herein that in both the cases i.e. present case 3960/16 and 3914/16, complainant S.N. Sharma, his wife Mrs. Aarti Sharma, complainant's son Mr. Aman Sharma, complainant's mother Kamla Devi and on the other side of the spectrum is Nagender Yadav, nephew of the accused, Mrs. Sangeeta Yadav, wife of Nagender Yadav and accused Mr. Page no. 25 of 32 R.D. Yadav who is uncle of Nagender Yadav are involved in plea of accusation and in plea of defence. In both the cases, pharmaceutical partnership firm is the basis of the transactions and cash credit limit qua the firm and defence has pleaded the substitution of property qua mortgage is involved. In both the cases, defence are on same lines, stakeholders are same, time of transaction is same, cheque is dishonoured on the same date, Court Witness in both the cases are the same and henceforth by virtue of Section 33 of Evidence Act, evidence in both the cases as well as testimony put forward by the complainant would be taken into account.

27. Before the case could be concluded it is important to reiterate uncontroverted facts which stands established during the course of the testimony by the witnesses and the material based on record.

a) There stood partnership between the son of the complainant, Mr. Aman Sharma and Mr. Nagender Yadav, who is husband of Sangeeta Yadav and nephew of R.D.Yadav.

b) the partnership firm stood registered in the name of M/s Meditreat Pharmaceuticals and cash credit limit of Rs. 2,400,000 was sanctioned by firstly, mortgaging the property of the wife of the complainant and thereafter it was replaced by mortgaging the property which stood in the name of Mrs. Sangeeta Yadav.

Page no. 26 of 32

c) it is uncontroverted facts that cheques were given and signature of the accused were impressed on the cheque as far as front portion of the leaf of the cheque is concerned by the accused.

d) deed of the partnership stood registered and liability was only extended upon Mr. Aman Sharma and Mr. Nagender Yadav as far as any transaction qua partnership property is concerned.

e) the son­in­law of the complainant, Mr. Pankaj Sharma is running Avecial Biologicals( as deposed by the complainant in the case of S.N. Sharma v. Sangeeta Yadav, Case no. 13611/2016)(Ref: Section 33 of Evidence Act).

f) money amounting Rs. 20,00,000 was transferred to the wife of the Complainant, Mrs. Aarti Sharma and mother of the complainant, Mrs. Kamla Devi Sharma on 30/03/2010 and 23/03/2010 from the partnership firm.

g) Bank account of the complainant stood joint with the wife of the complainant.

h) Complainant is advocate by profession and retired as manager from Punjab National Bank

i) Joint account of complainant and his wife were freeze and petition stood filed in Hon'ble High Court of Delhi.

j) several times money has been paid to Avecia Biologicals by the partnership firm M/s Meditreat Pharmaceuticals Page no. 27 of 32

k) deed of dissolution with respect to partnership does find clause qua the amount exactly of Rs. 24,00,000, which is matter of dispute.

l) affidavit on oath as tendered by complainant clearly shows that complainant was actively involved business of partnership firm of his son.

m) the alleged loan amount in dispute in both the cases i.e 3960/16 and 3914/16 have not been reflected in the ITR of the complainant. The reason that accused has been able to shift the burden upon the preponderance of probability is as follows:­

28. Firstly, accused has taken the two defence plea, that cheque was given as security as complainant needed to free his wife's property from mortgage which was instrumental in sanction of Cash Credit Limit of Rs. 24 lacs qua Partnership firm in which son of the complainant Mr. Aman Sharma was partner and further the transaction on 13/09/2010 (Ex.DW2/A)is shoddy for the reason that accused could never had been present at the Rohini in the Bank when he was on duty at R.K. Khanna Tennis Stadium during Commonwealth Games which is at Hauz Khas. Accused has been able to prove his defence.

29. Firstly, it already stands proved as per testimony of complainant that his wife's flat was released from mortgage qua sanction of Cash Credit Limit Page no. 28 of 32 of Rs. 24 Lacs and property in name of Mrs. Sangeeta Yadav was taken as collateral security. The handing over of cheque by the accused to the complainant as security is quite probable. The reference be made to document furnished by court witness Ms Suchitra Raina from CW­3 to CW­14.

30. Secondly, accused has proved his defence of alibi as the amount that was withdrawn was on 13/09/2010 at Rohini Branch of the Bank and accused has been able to prove via Ex DW2/A(Colly) that such transaction a shoddy as the perusal of record reveals that complainant never had such amount in his account and as far as page two of Ex DW2/A(Colly) is concerned, the same has been shown to be in chronological order and it is rather surprising that amount of Rs. 24,00,000 is debited before the amount of Rs. 24,35,000 is credited to the account of the complainant which cast doubt upon the transaction. Further in view of document Ex. DW1/1 to Ex. DW1/3, it is apparent that the accused was on duty from 18th of August 2010 to 28 of October 2010 and was posted at R.K. Khanna Tennis Stadium which is that Hauz Khas, henceforth the plea of alibi stands proved. Accused in his examination in chief had deposed that he was not on leave during such period and during cross examination by a learned counsel for the complainant, the accused has not been confronted Page no. 29 of 32 with this aspect. Nothing adverse could be brought on record as far as plea of alibi of accused is concerned.

31. Thirdly, the complainant have alleged that the loan was taken for the marriage of the daughter of the accused, the suggestion given by the learned counsel for the for the complainant does not inspires confidence as suggestion has been made that daughters marriage was scheduled for November December 2009 however the accused confronted that his daughter got married in February 2010.

32. Therefore in view of the transaction that took place on 13/09/ 2010 which on the face of it does not inspires confidence Ex. DW2/A(Colly) and plea of alibi stands proved in view of the deposition of witness DW - 1, the accused stands acquitted.

33. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.

34. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must Page no. 30 of 32 prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities ( Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).

35. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.

36. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused R.D. Yadav S/o Late Sh. Ghurah Yadav is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, she stands acquitted.

37. Accused R.D. Yadav S/o Late Sh. Ghurah Yadav is directed to furnish bail bond and surety bond in the sum of Rs. 2,50,000/­ under section 437(A) Page no. 31 of 32 of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon her.

38. File be consigned to Record Room after due compliance. 

Announced in the open court                               Digitally signed
on 23rd March 2022.                       VAIBHAV         by VAIBHAV
                                                          CHAURASIA
                                          CHAURASIA       Date: 2022.03.23
                                                          18:44:27 +0530

                                          (VAIBHAV CHAURASIA)

Metropolitan Magistrate­04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 32 pages and each page bears my signature.

Digitally signed by

VAIBHAV 

                                          VAIBHAV          CHAURASIA
                                          CHAURASIA        Date: 2022.03.23
                                                           18:44:34 +0530
                                          (VAIBHAV CHAURASIA)

Metropolitan Magistrate­04/ North West District Rohini District Court/New Delhi Page no. 32 of 32