Delhi District Court
Deepak Kumar Sharma vs Taruna Sharma on 2 July, 2022
IN THE COURT OF MS AISHWARYA SINGH KASHYAP,
METROPOLITAN MAGISTRATE (NI ACT),
KARKARDOOMA COURTS, DELHI
Deepak Kumar Sharma Vs Taruna Sharma
CC Nos 314/2013; 53090/2016 [Geeta Colony]
CNR Number: DLET020021632013
Sh. Deepak Kumar Sharma
S/o Late Sh. A.K. Sharma,
R/o A-48, 2nd floor, Gali No. 4,
Radhey Shyam Park, Ext. Delhi .......... Complainant
Vs
Sh. Taruna Sharma
W/o Sh. Kuldeep Kumar Sharma,
R/o 13/129, Geeta colony,
Delhi-110031 .......Accused
Complaint Case No.: 53090/2016 [Old CC 314/2013]
Date of Institution: 20.04.2013
Offence alleged: Section 138 Negotiable Instruments Act,
1881
Plea of the accused: Pleaded not guilty
Final Order: Acquitted
Date of Reservation: 17.05.2022
Date of Decision: 02.07.2022
Argued By:
Ld. Counsel for the Complainant- Shri Satish Kumar
Ld. Counsel for the Accused- Shri Arvind Sharma
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AISHWARYA SINGH Digitally signed by AISHWARYA
SINGH KASHYAP
KASHYAP Date: 2022.07.02 18:41:54 +05'30'
Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016
JUDGEMENT
Factual Matrix
1. The complaint is based on alleged facts that parties Mr Deepak Kumar Sharma, (hereinafter 'the complainant') was approached (through Mr Naresh Batra) by Ms Taruna Sharma (hereinafter 'the accused') and her husband Mr Kuldeep Sharma in September, 2012 seeking a loan. The loan was sought for a period of six months for the construction, repair and renovation of two of their properties bearing no. E-57, Preet Vihar, Delhi consisting of roof rights of second floor and 13/180, Geeta Colony Delhi whilst assuring the complainant that one of the aforesaid properties would be sold and loan amount will be returned at an interest @ 18% per annum payable on monthly basis. It was also averred that they needed Rs 20 lakhs and Mr. Naresh Batra (complainant in connected CC No. 255/2013; CC 53493/2016) had already advanced Rs 10 lakhs to the accused. Therefore, at the behest of Mr. Naresh Batra and in his presence, the complainant on 17.09.2012 advanced an amount of Rs 5 lakhs to the accused and her husband for six months @18% interest per annum payable on a monthly basis. [Accordingly, upon the request of the Mr. Naresh Batra, the accused and her husband were given an additional loan of Rs 5 lakhs by Mr Nand Lal Gogia S/o Sh Tulsi Gogia R/o 57, 1 st Floor, East End Enclave, Delhi (on 12.09.2012 for a period of 6 months on 18% interest p.a. in a connected matter in CC No. 319/2013; 53091/2016).]
2. Thereafter, the accused and her husband along with Mr Naresh Batra approached the complainant stating they were not 2 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:42:14 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 in a position to pay the monthly interest and sought six months' more time, promising to repay the amount after selling one of the aforesaid properties, and the complainant acceded to their request.
3. On 16.03.2013, the complainant approached the accused and her husband for repayment of the loan with interest (Rs 45,000/- for six months), and in partial discharge of her liability the accused, with the consent and knowledge of her husband, issued one cheque in favour of the complainant bearing no. 000078 dated 17.03.2013 for an amount of Rs. 5,00,000/- (five lakhs), drawn on Bank of India, Gandhi Nagar Branch, New Delhi (hereinafter, 'the cheque in question'). The interest amount of Rs 45,000/- was also promised to be paid after the clearance of the cheque in question.
4. However, upon presentment, the aforesaid cheque in question was dishonoured with remarks "Funds Insufficient"
vide return memo dated 20.03.2013. The complainant served the legal demand notice on the accused dated 28.03.2013. (The cheques issued by the accused in favour of Mr. Nand Lal Gogia and Mr. Deepak Kumar Sharma were also dishonoured). On failure of the accused to pay the total amount qua the cheque in question within 15 days, the complainant filed the instant complaint within the period of limitation for committing the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter 'The Act').
Pre-summoning Evidence, Cognizance and Notice
5. Pre-summoning evidence was led by the complainant and the Ld. Predecessor took cognizance and issued summons vide 3 of 25 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:42:31 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 order dated 20.04.2013. The accused entered appearance and notice under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC') for the offence under Section 138 of the Act was served upon accused on 14.07.2015, to which she pleaded not guilty and claimed trial.
Plea of defence of the accused.
1. It is correct that cheque in question bears my signature and my bank account number. However, I did not fill the body of cheque in question.
2. I do not know the complainant. I have never had any type of financial transaction with the complainant ever in my life. I do not know as to how did my cheque in question reach in the possession of complainant. I do not remember anything about my blank signed cheque in question.
3. I received the legal demand notice issued by the complainant. However, I do not remember I replied to the same or not.
Complainant's Evidence
6. During the trial, the complainant has led the following documentary evidence against the accused to prove the case.
Oral Evidence
1. CW1/the complainant on 30.06.2016, 21.07.2017.
2. CW2 Mr Naresh Batra on 14.12.2018.
Documentary Evidence
1. EX.CW1/A: Cheque in Question
2. EX.CW1/B: Return Memo
3. EX.CW1/C: Legal Demand Notice
4. EX.CW1/D/E: Postal Receipt and Courier Receipt
5. EX.CW1/F/G: Tracking Report
6. EX.CW1/H: Complaint
7. EX.CW1/1: Evidence Affidavit 4 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:42:48 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016
8.Ex CW1/D1 (OSR): Affidavit by Mr. Pankaj Arora dated 19th October, 2012 re matter qua the said property being resolved with Ms Taruna Sharma.
9. Mark A: Copy of Sale Deed (Rs 18 lakhs) qua E-57 Preet Vihar between Ms Taruna Sharma & Mr Vinod Kumar Wadhera dt 13 Jan 2011.
10. Ex. CW1/D1: Copy of Agreement to Sell and Purchase qua same property (Rs 1.66 Crores) between Ms Taruna Sharma & Mr Pankaj Arora dt 24 June 2011. (Witness Mr. Nand Lal)
11. Mark B: Copy of Mutual Agreement between Mr. Kuldeep Sharma and Mr. Sanjay Nijhawan (Rs 2.25 Crores) dated 21st July 2012 qua same property. (Witness Mr. Naresh Batra and Mr. Nand Lal)
12. Mark C: Copy of Sale Deed between Mr. Vinod Kumar Wadhera and Ms. Manju Nijhawan (Rs 43.5 lakhs) qua the same property dated 17 Aug 2012.
13. EX.CW2/A: Evidence Affidavit of Mr Naresh Batra
7. The undersigned took charge on 17.11.2020 and the matter was listed for the first time virtually, during suspended court functioning on account of the pandemic. The matter was expedited by giving shortest possible dates however, the trial suffered on account of the two waves of the Covid-19 Pandemic.
Statement of Accused
8. Thereafter, in order to allow the accused to personally explain the circumstances appearing in evidence against her, the 5 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:43:04 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 statement under Section 313 CrPC was recorded without oath on 23.12.2021. Therein, the accused denied all the allegations against her and stated as hereunder:
1. It is correct that cheque in question bears my signature, name of my bank and my account number. However, I did not fill the body of the cheque in question.
2. No we have not approached the complainant.
3. No, we have not taken any loan. (at 18@ interest p.a.).
4. I do not remember whether I received the legal demand notice.
5. I had not given the cheque in question to any one. My husband is a builder. The cheque in question was handed over to one Pankaj Arora by my husband for security as there was some deal between Pankaj Arora and my husband. The third floor of the property E57, Preet Vihar was sold to Pankaj Arora by my husband and thereafter, this deal was cancelled. This property was registered at my name and I do not have any further knowledge with respect to this transaction.
I do not know the complainant. Pankaj Arora might have handed over my cheque to one Nand Lal Gogia who is his relative. Deepak Sharma and Naresh Batra alongwith the complainant have misused the present cheque. I do not have any liability towards the complainant.
6. I did not file any police complaint as my cheques were with Pankaj Arora as already stated. I got to know about their misuse after getting to know about the present case.
7. Yes, I want to lead evidence in my defence.
Defence Evidence
9. The accused opted to lead defence evidence during the recording of the aforesaid statement and, upon her application under Section 315 CrPC moved, she was examined under oath along with her other defence witness i.e. the accused brought on record the evidence of her husband as DW2.
Oral Evidence I. DW1/Accused Ms. Taruna Sharma: DW-1 on 23.12. 2021, 02.03.2021, 08.03.2021 and 05.04.2021.
II. DW2/Husband of Accused Mr. Kuldeep Sharma: DW-2 on 30.03.2022, 05.04.2022 6 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:43:23 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016
10. Detailed arguments were heard at length on both sides. Ld. Counsel for complainant submits that the statutory presumptions under Section 118 and 139 under the Act have been raised in his favour as the cheque is admitted by the accused and she has failed to raise a probable defence. It was submitted that the accused had admitted the deal with Mr. Pankaj Arora (MarkA) however, her defence with respect to misuse of the cheques (in all connected matters) being handed over to Mr. Pankaj Arora as security has been questioned by the complainant especially in the absence of any complaint against either Mr. Pankaj Arora or the complainant. The complainant has questioned the initial silence of the accused with respect to the aforesaid deal with Mr. Pankaj Arora qua the relevant property mentioned in the documents, as well as her inability to answer questions whilst submitting that her husband was incharge of the deals. It is the submitted by the complainant that the accused cheated him and others with respect to the aforesaid relevant property as cash was received from Mr. Pankaj Arora for sale of said property despite not being the legal owner of the property at the time, since the same was already sold to Mr. Wadhera. The complainant has questioned the ownership by the accused of the relevant property as well as receipt of cash amount for its illegal sale to multiple people. The (changing) stand of the accused with respect to the alleged security cheques (in all connected matters) being with Mr. Pankaj Arora who was supposed to tear the cheques whereas subsequently submitting that they were meant to be returned via Mr. Naresh Batra has been question as well. (Reliance placed on M/s Kalamani Tex and Anr. Vs P 7 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:43:37 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Balasubramanian Criminal Appeal 123 of 2021, SC 2021 (Statutory presumptions and onus on the accused); Rajesh Aggarwal vs State 2010 SCC OnLine Del 2511 (all defences must be be disclosed by the accused); Rajeshbhai Muljibhai Patel vs the State of Gujarat Criminal Appeal 251-252 of 2020 SC (statutory presumptions).
11. Per contra, the accused denied the existence of any legally enforceable liability or debt and denied having any transaction between the parties. Ld. Counsel for accused questioned the failure of the complainant to bring on record any cogent evidence to prove his source of funds. The accused has also questioned the alleged advanced of loan by two different people (complainant in another connected matter) at the behest of Sh. Naresh Batra, that too, at an exorbitant interest rate without possessing any money lending license. The service of legal demand notice on the accused has also been put to doubt. The source of funds of the complainant has also been challenged by the accused. The failure of the complainant to reflect loan in ITR as well as failure to execute any documents has also been questioned in the present case. The defence of the accused is that the cheque(s) in question (including cheques in other connected matters) were handed over by the accused to one Mr. Pankaj Arora (also known as Shanty) who is the brother-in-law of Mr. Nand Lal Gogia i.e. the complainant in connected matter. The complainant's objections about any alleged cheating is denied by the accused on the ground that the main complainant (at whose behest loan was advanced to the accused) Mr. Naresh Batra himself as well as complainant (in connected matter) Mr. Nand 8 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:43:53 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Lal Gogia have stood witnesses to the subsequent property deal of the same property i.e. document Mark B between husband of the accused Mr Kuldeep Sharma and Mr Sanjay Nijhawan for Rs 2.25 Crores. (Reliance placed on Ashok Baugh vs Kamal Baugh Crl L P 358 of 2012 Delhi High Court 2015 (failure to show loan in ITR and paying capacity not proved); Krishna Janardhan Bhat vs Dattatraya G Hegde (2008) (1) RCR (Criminal) 695; Rangappa vs Sri Mohan (2010) 3 RCR (Criminal) 164; Ramdas vs Krishnanand 2014 (LRC) 102 SC (paying capacity); John K Abraham vs Simon C Abraham 2013 (LRC) 23 (SC) (failure of complainant to reveal the exact details of transaction); K Subramani vs K Damodar Naidu IX (2014) SLT 449 (no source of income/production of bank statement produced by the complainant); and M.S. Narayanan Menon vs State of Kerala and Anr (2006) 6 SCC 39 (Evidentiary burden on accused not heavy and only that of preponderance of probabilities i.e. raising a doubt). After hearing rival submissions on both sides in the connected matters arising between the same accused and different complainants, the matter was reserved for order on 17.05.2022.
Legal Position
12. In order to establish the offence under Section 138 of the Act, the prosecution must fulfil all the essential ingredients of the offence, as highlighted hereunder.
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
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AISHWARYA Digitally signed by AISHWARYA
SINGH KASHYAP
SINGH KASHYAP Date: 2022.07.02 18:44:09 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of the cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
13. Further, all the conditions stipulated under Section 142 of the Act must be satisfied. The complainant asserts that he has prima facie satisfied all the aforesaid conditions. However, the accused has disputed the fulfilment of the second and fifth ingredients. The same is being considered hereinafter.
Appreciation of Evidence Standard of Proof
14. The scales of degree of proof required in a cheque dishonour case, where the cheque has been admitted by the accused, have been set by the Hon'ble Supreme Court in Rangappa vs Sri Mohan (2010) 11 SCC 441 holding that once the cheque and signatures are admitted, presumptions in favour of the complainant are raised. However, said presumptions are rebuttable in nature and the 'standard of proof' required on part of the accused is that of 'preponderance of probabilities'. This 10 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:44:24 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 can be achieved either by adducing evidence in defence or by raising probable defence whilst relying on the evidence already on record. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence. 1 The accused has successfully put a challenge qua the existence of legally enforceable liability/ the version put forth by the complainant in the instant case and the same is being discussed hereinafter. Absence of Legally Enforceable Debt/Liability and Adducing Probable Defence
15. The second ingredient is the primary point of contention in the present case wherein, the accused has denied the existence of a legally enforceable liability towards the complainant. The defence put forth by the accused is that she does not know the complainant nor issued the cheques in question in favour of the complainant. She submitted that the cheque(s) in question (including cheques in two connected matters) were handed over to one Mr. Pankaj Arora, and not the complainant. The same were handed over with respect to a property deal wherein her husband, Sh. Kuldeep Sharma (engaged in property dealing) was in charge of the affairs. The said deal was later cancelled and the cheque(s) in question were supposed to be destroyed. However, the same were misused by the complainants Mr. Deepak Kumar Sharma, Mr. Nand Lal Gogia and Mr. Naresh Batra/three different 1 Basalingappa vs Mudibasappa (2019) 5 SCC 418; M/s Kumar Exports vs M/s Sharma Carpets AIR 2009 SC 1518.
11 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:44:40 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 complainants in three different connected matters (also dealing in properties) since Mr. Pankaj Arora was a relative of Mr. Nand Lal Gogia. She also submitted that no police case or criminal complaint were filed against the misuse of the cheque(s) since she was not aware of their misuse until the filing of the present case. It is the defence of the accused that neither she nor her husband took any loan from any of the complainants and that she did not know how the cheque(s) in question came into the possession of the complainant. Therefore, it is submitted that no legally enforceable liability/debt exists in the instant case. In order to prove this fact, the accused may either tender evidence or rely on material already available on record. In the present case, the accused has elicited inconsistencies in the version put forth by the complainant.
16. Therefore, despite signatures on the cheque in question being admitted--raising the presumptions under Section 118 read with Section 139 of the Act in favour of the complainant, the accused has raised a probable defence on the grounds discussed hereunder. Foremost, reliance is placed on the inconsistencies in the complaint with respect to the details of the transaction/handing over of the cheques in question as well as the lack of financial capacity of the complainant to advance such a loan, casting the existence of a legally enforceable liability/debt in grave doubt. It is clear that a person cannot be compelled to produce negative evidence in his/her defence. Thus, the accused must rebut the statutory presumptions on the basis of preponderance of probabilities in order to raise doubt over the existence of debt/liability. This view was reinforced by the 12 of 25 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:44:54 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Hon'ble Supreme Court in M/s Kumar Exports vs M/s Sharma Carpets AIR 2009 SC 1518 wherein, the court held as under:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial....However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Section 118 and 139 of the Act will not again come to the complainant's rescue.2 This has further been elaborated in Rangappa (supra) holding that:
2 Paras 11 and 12.
13 of 25 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:45:10 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Under Section 118(a) of the NI Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."3 Therefore, the existence of legally enforceable liability has been challenged by the accused on the grounds discussed hereunder by challenging the existence of the second essential ingredient of the offence based on the material available on record.
Non-Existence of Legally Enforceable Liability or Debt
17. It is the case of the complainant that he advanced a loan of Rs 5 lakhs to the accused and her husband for six months at 18% interest per annum payable on a monthly basis (at the behest of Mr. Naresh Batra), for the construction, repair and renovation of their properties bearing No. E-57, Preet Vihar, Delhi consisting of roof rights of second floor (relevant property) and 13/180, Geeta Colony, Delhi. It is also alleged that the accused and her husband assured to repay the amount after sale of one of the aforesaid properties. 4 Therefore, the pivotal question to be analysed to ascertain the existence of the legally enforceable liability or debt is the very fact of the advancement of the aforesaid loan.
18. However, it is pertinent to bear in mind that the entire trial has been centred around the (alleged unlawful) sale 3 Para 23.
4 Para 3, 4, 5, 6, 7 of the Evidence Affidavit Ex CW1/1.
14 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:45:28 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 purchase of the third floor of property bearing no. E-57, Preet Vihar, Delhi/relevant property. The complainant has questioned the accused with respect to several documents/their copies with respect to the sale-purchase of the aforesaid property between different parties at different points of time whilst alleging that the accused and her husband cheated the complainant and others by wrongfully selling the same property to multiple people at different points of time. This fact is irrelevant for deciding the existence of liability in the present case since the cheque(s) in question were not given as consideration for sale-purchase of the relevant property. The pertinent question is whether they were given for the repayment for the alleged advancement of the loan amount by the complainant.
Material Concealment of Facts and Raising of Probable Defence
19. It is indeed curious to note that not only does the complaint bear minute details about the transaction between the parties, it also bears the details of the alleged transactions between the accused, her husband and Mr Deepak Kumar Sharma, Mr Naresh Batra, and Mr Nand Lal Gogia i.e. all the (other) complainants who have filed separated cases against the accused. However, the Legal Demand Notice itself is conspicuously devoid of any details whatsoever between any of the parties whilst simply mentioning 'admitted debt and liability' of the accused. It states as under:
"1. That in discharge of your admitted debt and liability towards my client, you had issued a cheque bearing no...."5 5 The Legal Demand Notice Ex. CW1/C dated 28.03.2013.
15 of 25 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:45:44 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Therefore, interestingly, the aforesaid fact with respect to sale-purchase of the same property to different people (qua which the complainant has raised the question of cheating) becomes relevant in light of the fact that Mr. Naresh Kumar Batra and Mr. Nand Lal Gogia have themselves stood witnesses to the very transaction/document against qua which cheating has been alleged to have been committed by the accused i.e. Ex. CW1/D1 as well as Mark B. The existence of the documents/transaction is not disputed since it is the case of the complainant himself that the same property was resold to different persons by the accused. However, upon the production of their copies by the accused wherein the complainants in the other two connected matters are cited as a witness, the entire documents have not been disputed by them (on the ground of secondary evidence) however, their signatures as a witness have been disputed. This is against the principles of Section 91 and 92 of the Indian Evidence Act. The complainant in the present case has also failed to disclose said information despite alluding to the loans given by the other two complainants in the connected mattes. Further, these facts are conspicuously absent from the complaint as well as pleadings of the complainant. Further, the fact that Mr. Pankaj Arora, to whom the accused purportedly handed over the cheque(s) in question, is the relative of Mr. Nand Lal Gogia has also deliberately not been disclosed in any of the connected complaints before this court, including the present case. In-fact, this fact was intended to be suppressed however, the truth came forth during the cross-examination of complainant witnesses. Mr. Nand Lal Gogia claimed that he did 16 of 25 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:46:06 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 not know Mr. Pankaj Arora nor he could remember whether he facilitated any deal between him and the accused (whilst not outrightly denying the fact). The relevant excerpts are being reproduced hereunder:
"I do not know Pankaj Arora. I do not remember whether I have facilitated a deal for property between accused and Pankaj Arora at E-57, Preet Vihar...
Again said, I know Pankaj Arora as Shanty. It is wrong to suggest that Pankaj Arora @ Shanty is the brother of my wife. The document Ex. CW1/D1 (colly, running into 3 pages) bears my signature at Point A at page no.3. Again said, I doubt whether the signature at Point A at page no. 3 of Document Ex. CW1/D1 bears my signature."6
20. After this cross-examination, the complainant Mr Naresh Batra in the connected case admitted to knowing one Mr. Pankaj Arora@ Shuntti as well as having property deals with the other complainants, including said Pankaj Arora @Shuntti whilst feigning ignorance with respect to his relationship with Mr. Nand Lal Gogia. It is pertinent to bear in mind that Pankaj Arora and Shuntty/Shanty is the same person.
I know one Pankaj Arora @ Shuntti. I do not know whether said Pankaj Arora is brother in law (sala) of Nandlal Gogia. It is correct that I alongwith Nandlal Gogia, Pankaj Arora and Deepak Sharma had dealt in property business. (Vol. We did not have regular property business dealing as we might have dealt once or twice).7
21. Therefore, the fact that Mr. Naresh Batra, Mr. Nand Lal Gogia and Mr. Deepak Kumar knew each other very well has been established in accordance with their own versions, or else the latter two would not extend significant loans to the accused 6 Cross Examination of Complainant Witness Nand Lal Gogia on 17.02.2016 in CC 319/13; CC 53091/2016.
7 Cross Examination of Complainant Witness Naresh Batra on 20.04.2018 in CC 255/2013; CC 53493/2016..
17 of 25 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:46:34 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 simply at the behest of Mr. Naresh Batra. Mr. Deepak Kumar Sharma deposed as under:
"I know Naresh Batra since 2005/2006. He is in the business of wrist watches in Chandni Chowk. He is my client and also in the business of sale purchase of property.
I know Nand Lal Gogia since 2003/2004 and he is also a property dealer."8 It is also evident that their knowledge with respect to knowing Mr. Pankaj Arora was kept deliberately concealed at the time of filing of complainant till the time said fact was revealed during cross-examination. It is also an admitted fact that the three dealt in property business wherein the husband of the accused is also engaged in the business of property dealing. Therefore, (irrespective of whether it was full-time or not), it is curious that all the complainants remained silent qua the property transactions with the husband of the accused/standing witness to certain documents. It is also extremely improbable to believe that they would not know whether Mr. Pankaj Arora @ Shanty or Shuntti was related to Mr. Nand Lal Gogia or not.
22. The aforesaid fact is further fortified by the evidence of Sh. Deepak Kumar Sharma, who admitted doing property dealing business with the others, including Pankaj Arora as well as the fact that he was the brother in law of Mr. Nand Lal Gogia.
"I do not know any Pankaj Arora. I know one Shanty. I do not know whether Pankaj Arora and Shanty are the same person. Shanty is the brother in law of Nann Lal Gogia. It is correct that Nand Lal Gogia, Naresh Batra, Shanty and I are doing the business of property dealing together."9 8 Cross Examination of Complainant Witness Deepak Kumar Sharma on 30.06.2016 CC. 9 Cross Examination of Complainant Witness Deepak Kumar Sharma on 21.07.2017 CC.
18 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:46:56 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Further, he also deposed that the aforesaid persons were discussing about the cancellation of deal qua the relevant property between the accused and Pankaj Arora @Shanty.
"I do not know whether a property deal was executed for the sale purchase of the property bearing number E-57, Preet Vihar, Delhi on 24.06.2011 between the accused and Pankaj Arora @ Shanty. I do not know whether the said deal got cancellation, however, I know that Shanty, Batra ji, and Gogia ji used to talk about cancellation of said deal."10
23. Further, the defence of the accused has been supported by DW2, her husband Sh. Kuldeep Sharma, who denied ever having taken loan from the complainant and reiterated the fact that the cheque(s) in question (in the connected matters) were handed over to one Mr. Pankaj Arora qua a property deal which was later cancelled. He also deposed that all the deals qua the relevant property were materialised with the assistance of Mr Naresh Batra and Mr. Nand Lal Gogia themselves.11 Thus, in light of the aforesaid revelations, it is evident that the complainant has not approached the court with clean hands in view of the intentional suppression of material facts of the case, and the accused has raised a probable defence that the cheque(s) in question were not handed over to the complainant and instead, were in the possession of Mr. Pankaj Arora (related to Mr. Nand Lal Gogia) and therefore misused by the complainant(s) in the connected matters.
10 Ibid.
11 Chief and Cross-Examination of DW1 Sh. Kuldeep Sharma on 30.03.2022 and 05.04.2022.
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SINGH KASHYAP
SINGH KASHYAP Date: 2022.07.02 18:47:14 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Financial Capacity of the Complainant
24. The ld. Counsel for the complainant has placed reliance on M/s Kalamani Tex and Anr. Vs P Balasubramanian Criminal Appeal 123 of 2021, SC 2021. Reliance on this case is misplaced as the same is distinguishable on facts wherein, unlike the present case, the accused in the said case had failed to lead any defence evidence whatsoever whilst admitting his signatures on the Deed of Undertaking i.e. business relationship as well as liability between the parties was admitted by the accused. Reliance on Rajeshbhai Muljibhai also does not come to the aid of the complainant as the case deals with forged receipts and quashing of the complaint. Though the aforesaid precedent qua M/s Kalamani Tex has not been used by the complainant on the point of financial capacity however since this judgement itself relies on Rohitbhai Jivanlal Patel vs State of Gujarat 12 on the point of financial capacity of the complainant, the same is being analysed herein in consonance with a holistic legal analysis of the case. Rohitbhai states that the financial capacity of the complainant must not be doubted mechanically at the mere behest of the accused unless a probable defence has been raised by the accused on preponderance of probabilities. In RohitBhai, the accused did not lead any evidence with respect to existence of transaction with another person instead of the complainant. Further, the case is distinguishable on facts since the complainant's version in that case was corroborated by the unimpeached testimony of an independent eye- witness whilst the signature of the accused on the stamp paper was also 12 2019 (5) SCALE 138.
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SINGH KASHYAP Date: 2022.07.02 18:47:30 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 admitted. The same are discernibly missing from the present case wherein the accused has indeed raised a probable defence, therefore, the financial capacity of the complainant (which has been challenged by the accused) is being analysed hereunder.
25. On the point of financial capacity of the complainant, juxtaposed with the backdrop discussed so far, the complainant has failed to furnish any cogent evidence, oral or documentary, in order to support his claim since he has not revealed his source of funds. The complainant, upon being cross- examined by the accused, deposed that the cash loan amount of Rs 5 lakhs was arranged from his own savings/cash kept at home however, failed to produce any documentary evidence to substantiate his claim.
26. In-fact, the complainant admitted that he lived in a rented accommodation and also admitted that his annual income at the relevant period was merely around Rs 2 lakhs. Further, he also deposed that his monthly expenditure form 2010-2012 was Rs 15,000-to-Rs 20,000/- per month. Therefore, it is highly improbable to believe that the complainant, evidently not a man of significant means, after deduction of his annual expenses, was in any position to extend the alleged cash loan of Rs 5 lakhs to the accused and her husband- whom he had allegedly met the first time, merely at the behest of Mr. Naresh Batra.
"From the period between 2010 to 2011 I was not able to crack many deals and my annual income during that period must be around Rs. 1,20,000/-. In the year 2012 I could earn only Rs. 2 lacs.
I got married in the year 2011. I have one daughter namely Himanshi and she goes to a play school. I am living in leased premises since 2011/2012. I have taken the said premises from Ms. Kuldeep Kaur and at the time of taking the 21 of 25 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.07.02 18:47:49 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 premises on lease, I had given Rs. 3,00,000/- to her in cash as security in the end of 2011. I am not paying any monthly rent. Said amount of Rs. 3,00,000/- was arranged from the sale proceeds of a property belonging to my grandfather. I do no have any document pertaining to the said sale proceeds of property belonging to my grandfather. I have no idea as to for what amount was the said property sold. But I had received my share of Rs. 3,00,000/- only."13 "In 2010 to 2012, my monthly expenditure including grossery items, cloth, medical expenses, tuition fee and other expenses was of Rs 15,000/- to Rs 20,000/- per month."14
27. Thus, as per the mandate of law and in line with the mechanism of the reverse onus clause, once probable defence is raised, the onus shifts upon the complainant and it becomes incumbent upon him to furnish cogent evidence in support of his case/discharge his burden to prove his financial capacity. Herein, the existence of enforceable liability/debt has been rendered improbable as per the aforementioned discussion. Further, no documentary proof has been furnished on record by the complainant despite his financial capacity being questioned. Therefore, on this count, the version of the complaint fails and existence of loan transaction/liability is rendered improbable based on the material available on record.
28. The legal position on this point has been delineated elaborately by a Division Bench of the Hon'ble Supreme Court in Basalingappa vs Mudibasappa15 noting the discrepancies in the complaint and the cross-examination of the complainant noting that "..there was a burden on the complainant to prove his financial capacity."16 The court held as under:
13 Cross Examination of Complainant on 30.06.2016. 14 Cross Examination of Complainant on 21.07.2017. 15 Basalingappa vs Mudibasappa (2019) 2 SCC (Cri) 571. 16 Para 24 and 26.
22 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:48:06 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 Elaborating further, this court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant-accused cannot be expected to discharge an unduly high standard of proof.17 ...During his cross-examination, when financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.18 We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs 6 lakhs given to the accused, within 02 years, amount of Rs 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.
The observation of the High Court that trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.19
29. On the point of financial capacity of the complainant, a varying opinion has been expressed by another Division Bench of the Hon'ble Supreme in the case titled Rohitbhai Jivanlal Patel vs State of Gujarat (supra).20However, same has already been discussed in the preceding sections where it has been distinguished on facts. Further, the ratio held in Basalingappa is in consonance with the ratio held by the Hon'ble Supreme Court in K Prakashan vs P K Surendran21wherein, noting the fact that the complainant was not a man of means,22 the Hon'ble Apex court upheld the Ld. Trial Court's acquittal order reiterating the standard of proof 17 Para 20.
18 Para 24 and 25.
19 Para 28.
20 2019 (5) SCALE 138.
21 2008 (1) SCC 258.
22 Para 14.
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SINGH KASHYAP
SINGH KASHYAP Date: 2022.07.02 18:48:29 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 applicable in a cheque dishonour case as well as the susceptibility of complainant's financial capacity. It was held thus:
It is further not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.23
30. In the present case, after considering the totality of the facts and circumstances along with the evidence available on record, it becomes clear that the accused has successfully raised a probable defence in her favour by rebutting the assumed presumptions in favour of the complainant (keeping in mind that the second ingredient has not been fulfilled). On the scale of preponderance of probabilities, the accused has raised a probable defence during the trial whereas the complainant failed to discharge the onus that shifted upon him. The complainant has failed to establish his financial capacity, suppressed material facts, and failed to approach the court with clean hands. On account of the aforesaid, the complaint cannot be sustained in the eyes of law. No justification is forthcoming with respect to the failure of the complainant to bring on record cogent evidence in his support. On the contrary, glaring loopholes in the version of the complainant do not inspire any confidence before the court;
his testimony rests on shaky grounds and his version cannot be relied upon. The complainant has not approached the court with clean hands and has failed to satisfy the second ingredient essential for the prosecution of complaint under Section 138 of the Act. Thus, the fifth ingredient does not warrant any analysis 23 Para 13 and 20.
24 of 25 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:48:48 +05'30' Deepak Kumar Sharma Vs. Taruna Sharma CC 314/13; 53090/2016 as the complainant has failed to prove the existence of legally enforceable liability.
Decision
31. In view of the aforementioned discussion, the accused has successfully raised a probable defence on the touchstone of preponderance of probabilities and the complainant has failed to prove the existence of legally enforceable liability/the second essential ingredient of Section 138 of the Act. Accordingly, the complaint is dismissed and the accused is hereby acquitted of the charge of the offence punishable under Section 138 of the Act.
ORDER: Acquitted Accused shall furnish personal bond and surety bond as per the mandate of Section 437A CrPC upon which previous bonds shall be cancelled and previous surety shall be discharged.
Announced in Open Court on 02.07.2022.
(This judgement contains 25/Twenty Five signed pages.) AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.07.02 18:49:07 +05'30' Aishwarya Singh Kashyap) MM/NI Act(East)/KKD Courts/Delhi 02.07.2022 25 of 25