Delhi District Court
Babita Devi vs Babulal Yadav on 16 August, 2024
IN THE COURT OF MS. SHUBHI GUPTA, JUDICIAL MAGISTRATE
MAGISTRATE ( NI ACT)-01, SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-002282-2020
CC No. 1613/2020
Babita Devi
W/o Sh. Pradeep Singh,
R/o 88 A, Surya Kunj,
Block - E, Najafgarh,
Delhi - 110072 ............Complainant
Versus
1. Babu Lal Yadav,
R/o H.No. 82 A,
Janta Vihar Colony,
Najafgarh, Delhi - 110072,
Also At :211 BN, CRPF, Thanod,
New Raipur, Chattisgarh - 493661
2. Sharmila Yadav,
W/o Babulal Yadav,
R/o H.No 82 A,
Janta Vihar Colony,
Najafgarh, Delhi - 110072 .............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 14.01.2020
(4) Date of conclusion of
Arguments : 09.07.2024
(5) Date of judgment : 16.08.2024
(6) Final Order : Acquittal
CC No 1613 fo 2020
Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 1 of 21
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act').
2. Brief facts relevant for the decision of the case are as under:-
The complainant in his complaint has averred that the accused persons requested the complainant for a friendly loan of Rs.14 lakhs as they were in dire need of money. The complainant had granted a friendly loan for a sum of Rs.14 lakhs on 09.01.2019 to the accused. The husband of the complainant requested his friends namely Rahish Pal and Sunil Malik who were with him in CRPF by stating that one of his friends is in need of money to which they both agreed. It is stated that in the month of March 2019, husband of the complainant took a personal loan of Rs.12,50,000/- from his bank and returned the amount which was borrowed from his friends. The accused assured the complainant that the said loan shall be repaid within few months. After several persuasion and reminders, the accused issued two cheques in the first week of November 2019 in discharge of her legal enforceable liability drawn on State Bank of India, CRPF campus, Jharoda Kalan, New Delhi
- 110072 vide cheques bearing NO. 910745 for a sum of Rs.10,00,000/- dated 25.11.2019 and another cheque bearing No.910785 dated 30.11.2019 for a sum of Rs.4,00,000/- (hereinafter referred as 'cheques in question') to the complainant. However, when the said cheques were presented for encashment by the complainant with the banker i.e. Indian CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 2 of 21 Overseas Bank, Najafgarh, Delhi - 110072, they were returned unpaid with the remarks 'Exceeds Amount' vide returning memos dated 04.12.2019. Thereafter, complainant sent a legal notice dated 12.12.2019 through her counsel via speed post and despite service of aforesaid notice, no payment of amount mentioned on cheque in question were made within 15 days from date of receipt of legal notice by the accused.
Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and convicted according to law.
3. In her pre-summoning evidence, complainant examined herself on oath via affidavit i.e. Ex. CW 1/A. She reiterated the contents of the complaint and further relied upon the other documents already placed on record i.e. original cheques in question as Ex. CW 1/1 and Ex. CW 1/2, cheque returning memos as Ex. CW1/3 and Ex. CW1/4, Copy of legal demand notices as Ex. CW 1/5 and Ex. CW 1/6, Postal receipts Ex. CW
1./7 and Ex. CW 1/8, delivery report Ex. CW 1/9, tracking report Ex. CW 1/10.
4. Upon appreciation of pre-summoning evidence, only accused No.2 was summoned for an offence punishable under Section 138 of the Act. Thereafter, notice under Section 251 Cr.P.C. for the offence u/s 138 Negotiable Instrument Act was framed upon accused No.2 namely Sharmila Yadav to which she pleaded not guilty and claimed trial. She further denied her signatures on the cheques in question. She denied receiving legal notices. She further stated that the address mentioned on CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 3 of 21 the legal notices was her old address which she left in the year 2018. She further denied filling of any other particulars of the cheques in question. She further stated that she did not know the complainant and denied having any friendly relations with her. She further denied taking of loan from the complainant. She stated that cheques in question were given to Mukesh for committee run by her who died during covid times. She furthe stated that she did not owe any liability towards the complainant. Thereafter, framing of notice, the application for cross-examination of complainant witness u/s 145(2) of N.I, Act was moved by the accused. The same was allowed and matter was listed for cross-examination of complainant witness. Thereafter, matter was listed for C.E.
5. In her post summoning evidence, complainant had adopted her pre-summoning evidence filed by way of affidavit as her post summoning evidence and documents exhibited therein as detailed above previously. Complainant as CW 1 was duly cross-examined by Ld. Counsel for the accused and discharged. The complainant also examined CW 2 Sh. Pradeep Singh who stated that his wife Babita Devi i.e. complainant had given Rs.14,00,000/- in cash to accused No.1 and his wife Sharmila Devi. Thereafter, the accused refused to return the said loan. Amount of Rs.14,00,000/- was given for 6 months in January 2019. It was stated that the amount was taken by him from two friends and some of this amount was given by him. He had taken sum of Rs.5 lakhs from Sunil Malik and Rs. 5,00,000/- from Rahish Pal and the remaining Rs.4 lackhs were given from his pocket. It was stated that the had a telephonic conversation with the accused and the accused assured CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 4 of 21 him that the said amount would be repaid in February 2020 to which he replied that the case would be withdrawn, if the loan amount would be repaid by her. The recording of his conversation with the accused and her husband was brought in a pen drive alongwith transcript and certificate u/s 65 B of Indian Evidence Act which was exhibited as Ex. CW 2/A (colly.) (transcript running into 6 pages). It was further stated by him that accused never returned any amount and he applied loan of Rs.12.5 lakhs on 19.03.2020 from SBI Najafgarh. He had given Rs.5 lakhs to Sunil Malik in cash after withdrawing from his bank account from the said loan. Rahees Pal had asked him for the return of Rs.5 lakhs in February 2020, however, he was unable to return the amount due to which he gave 4 cheques to Rahees Pal but they were issued in the name of Neha Yadav who was relative of Rahees Pal. He further stated that he asked Rahees Pal to present the aforementioned 4 cheques by filing the amount of Rs.7.5 lakhs in total after he received approval of his loan. All the four cheques were duly encashed. It was further stated that Rahees Pal returned Rs.2.5 lakhs to him. He further stated that he has brought his bank statement from 01.01.2019 to 31.03.2019 and the same was exhibited as Ex. CW 2/B (colly.), running into 5 pages. He again said that loan was sanctioned in 2019 and not in 2020 and the amount was returned to Rahees Pal and Sunil Malik after sanctioning of loan. He was also duly cross-examined by the Ld. Counsel for the accused. The complainant further examined CW 3 Rahees Pal who stated that he had known Pradeep Singh i.e. CW 2 as they worked together. He further stated that Pradeep Singh asked for Rs.5,00,000/- to which he replied that to send someone at his residence to collect the said amount. He CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 5 of 21 further stated that his brother came to his residence to collect the money, however, he did not remember his name. He further stated that amount of Rs.5 lakhs was given to the brother of Pradeep Singh after confirming from Pradeep Singh telephonically. It was further stated that he asked for the return of money from Pradeep Singh after 2-3 months for purchasing a car. He further asked for some extra money. Pradeep Singh gave four cheques of Rs.7.5 lakhs in total which were duly encashed, however, due to some registration problem the car was never registered and the amount of Rs.7.5 lakhs was returned to him. Thereafter, he returned Rs.2.5 lakhs to Pradeep Singh. He was duly cross-examined by Ld. Counsel for the accused. The complainant also examined Sunil Malik as CW 4 who stated that Pradeep Singh requested him for a sum of Rs.5 lakhs to be advanced to some other person. He stated that he arranged the money through his father. The amount was collected by the brother of Pradeep Singh namely Davender who came to his residence and collected the amount from his father. The amount was returned to him by Pradeep Singh in cash in March 2019 at his residence. He was also duly cross-examined by the Ld. Counsel for the accused. Thereafter, CE was closed vide separate statement of the complainant on the same date i.e. 22.06.2023.
6. Thereafter, statement of accused u/s 313 Cr.P.C was recorded on 02.09.2023, in which all the incriminating evidence were put to her, and in her statement accused stated that she did not take any loan from the complainant. She further stated that she did not know the complainant. She further denied any liability towards the complainant. She stated that CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 6 of 21 the cheques in question were given to Mukesh Devi as she was running a committee and the cheques in question did not bear her signature. She further denied the receiving of legal notice and state that the address mentioned on the legal notice was her own address which she left in 2021. She further denied all other averments of the complainant. On being asked whether she wants to lead defence evidence, accused stated in affirmative. However, on 07.12.2023, Ld. Counsel for the accused stated that he wished to close D.E on behalf of the accused as she did not wish to lead any evidence. Separate statement of the Ld. Counsel for the accused was recorded in this regard on 07.12.2023. Thereafter, the matter was listed for final arguments.
7. In the final arguments, Ld. Counsel for the complainant stated that accused has not led any evidence to prove her defence whereas the complainant has proved her case beyond any reasonable doubt. She has examined four witnesses including her to prove her case. He further prayed that the accused be convicted for the offence U/S 138 NI Act.
8. Per contra, Ld. counsel for the accused, argued that the accused owes no legal liability for payment of cheque amount to the complainant as there are no signatures of the accused on the cheques in question. He further argued that complainant has not filed anything on record to show that loan of Rs.14 lakhs was given by the complainant to the accused. He further stated that major contradiction can be noticed in the testimonies of the complainant witnesses. He further argued that on these grounds, accused is entitled to be acquitted.
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 7 of 21
9. This Court has carefully gone through the record and to the submissions made by the counsels for the parties.
10. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of NI Act. To bring home a liability under section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made 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 from the bank regarding the return of the cheque as unpaid; and CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 8 of 21
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
11. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Having said that, it becomes imperative to mention section 139 of NI Act which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
12. Having said that, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary is proved by the CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 9 of 21 defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only.
13. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 10 of 21
14. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
15. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act which lays down that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved.
16. It has been held by a three-judge bench of the Hon'ble Apex Court CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 11 of 21 in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it was held;
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 12 of 21
17. Thus, the presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. Keeping in mind these basic principles, let us now examine if the accused has been able to successfully rebut the presumption under Section 139 NI Act read with Section 118 NI Act.
18. In the backdrop of the factual narrative of the case, following points of determination arise in the present case:
A. Whether the complainant has been successful in raising the presumption under section 118 read with section 139 of the N.I Act, 1881?
B. If yes, whether the accused has been successful in raising a probable defence to rebut the presumptions?
19. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence- documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability.
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 13 of 21
20. In the present case, complainant has filed the original cheques Ex. CW 1/1 and Ex.CW 1/2 and cheque returning memos Ex. CW 1/3 and Ex. CW 1/4. Ex. CW 1/3 and Ex. CW 1/4 clearly show that the reason for dishonour of cheques are 'Exceeds Arrangements'. The accused has taken consistent stand in every stage of trial, the accused has denied issuing the cheques to the complainant and she also denied the signatures upon the cheques in question. She has further denied taking of loan of Rs.14 lakhs from the complainant. She has stated that the cheques in question were given to Mukesh Devi as she was running a committee who died during Covid times. She further denied any liability towards the complainant. In the present case, the onus to prove that the accused has not issued the cheques in question in favour of the complainant to discharge the present liability, primarily lied on the accused. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides.
21. The accused has not led any evidence to prove her defence. However, as held in judgment of Hon'ble Supreme Court of India in Basalingappa vs. Mudibasappa, (supra) that it is not necessary for the accused to come in the witness box in support of his defence. Section 139 (NI Act ) imposes an evidentiary burden and not persuasive burden. It is not necessary to rebut the presumption u/s 139 N.I.Act that accused has to examine himself as a defence witness. Accused can rely on the evidence led by accused at various stages or he can rely on the evidence submitted by complainant. Inference of preponderance of CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 14 of 21 probabilities can be relied not only from the material brought on record by the parties but also by reference to the circumstances upon which the complainant relies. Ld. Counsel for the accused has brought the attention of this Court to the various inconsistencies in the testimonies of the complainant witnesses.
22. Perusal of the cross-examination of CW 1 i.e. the complainant show that she was unable to answer the date of the loan advanced by her to the accused. She stated that her husband had borrowed Rs.10 lakh from his CRPF friends, however, she was able to recall only the name of one of the friends i.e. Sunil. She did not mention the time when her husband borrowed Rs. 10 lakhs from them to be given to the accused. She stated that the remaining Rs. 4 lakhs were given from her own personal savings. She further denied the suggestion that she has not produced any document on record to show that loan was granted to the accused as there was no loan ever advanced. However, CW 2 who is the husband of the complainant stated that the remaining Rs. 4 lakhs was given from his own pocket. CW 2 has exhibited Ex. CW 2/A which is the recording of his conversation with the accused and her husband stating that in the aforesaid recording accused has assured him that she would repay the loan in February 2020. Perusal of the transcript does not show any where that the accused had admitted her liability of Rs.14 lakhs towards the complainant with regard to cheques in question. CW 2 in his cross-examination initially stated that he took a loan of Rs.12.5 lakhs on 19.03.2020 to repay the money borrowed from his friends and he stated that Rahees Pal CW 3 asked to return the money from him in CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 15 of 21 February 2020. Thereafter, he corrected his statement and stated that the loan was sanctioned in 2019 not in 2020. However, he did not correct the date when Rahees Pal asked him to return the money i.e. sum of Rs.5,00,000/-. He further stated that he does not have any acknowledgment or receipt to show that the loan was given to the accused in January 2019. Another glaring contradiction which can be noticed in the depositions of CW 1 and CW 2 is that CW 2 stated that the amount of Rs.10 lakhs was borrowed by his brother from Rahees Pal and Sunil Malik and the same was given to his wife. He further stated that he does not remember the exact date when the amount was borrowed from the village of Sunil Malik and Rahees Pal. He further stated that he does not know the currency denomination of amount borrowed from them. He further stated that no receipt or acknowledgment was taken from his brother Devender Kumar from Rahees Pal and Sunil Malik. He further admitted that Rahees Pal and Sunil Malik do not know the exact name of the accused persons. He further admitted that no loan was given to accused persons in the presence of Rahees Pal and Sunil Malik. He further made a voluntary statement that Rahees Pal and Sunil Malik do not know that the loan was taken for advancing to another person. Whereas, in the complaint, it is mentioned that the husband of the complainant requested Rahees Pal and Sunil Malik for the money on the pretext that one of his friends is in dire need of money. CW 1 has never mentioned about the fact that the amount from CW 3 and CW 4 was borrowed by her brother-in-law not her husband as he was working with CRPF at the time of loan advancement and the loan was not advanced in the presence of CW 2.
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 16 of 21
23. CW 3 namely Rahees Pal and CW 4 deposed that Pradeep Singh had asked for Rs.5 lakhs each from them which was collected by the brother of Pradeep Singh. CW 3 stated that he does not remember the exact date when Pradeep Singh approached him for loan. He further admitted that amount of Rs.5 lakhs was not given in his presence as it was given by his wife and younger brother. He further stated that he does not know whether the amount borrowed by Pradeep Singh was used for his personal usage or it was given to Babu Lal Yadav i.e. the husband of the accused. CW 4 also deposed that the amount of Rs.5 lakhs was given to Devender Kumar at the behest of CW 2 i.e. Pradeep Kumar by his father as he was on duty at Chhatishgarh. He does not remember the exact date and the currency denomination. He further stated that he does not know whether the amount borrowed by Pradeep Singh was used for his personal usage or it was given to Babu Lal Yadav i.e. the husband of the accused. He further stated that he does not have any documentary proof with regard to monetary transactions. Ld. Counsel for the accused has questioned the alleged loan advanced by te complainant and further highlighted that the complainant has not shown the giving of the loan amount to accused in her ITR. It is further highlighted by him that complainant has not filed any proof with respect to her financial capacity.
24. The complainant has stated that she has arranged Rs.4 lakhs from her own pocket whereas the remaining amount has been borrowed from CW 3 and CW 4 by her husband. Various contradictions as mentioned CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 17 of 21 above can be noticed in the depositions of CW 1 and CW 2, furthermore, the complainant has failed to show any document, agreement or receipt on record to prove the advancement of loan. In Vijay Vs. Laxman, 2013 (3) SCC 86, it has been observed by the Apex Court that " the absence of any detail of the date on which the loan was advanced and also the absence of any documentary evidence or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance". CW 3 and CW 4 were examined by the complainant to show that sum of Rs.10 lakhs was borrowed from her husband to be given to the accused, however, the testimonies of CW 3 and CW 4 fail to bring anything on record to show that sum of Rs.10 lakhs (Rs.5 lakhs each) was borrowed from them and even if borrowed, the same was given to the accused or the husband of the accused for advancing of loan as CW 3 and CW 4 show their lack of knowledge whether the loan given by them was for the personal usage of CW 2 or for advancement of loan to Babu Lal Yadav ie. husband of of the accused. They further stated that loan was not advanced before them. Even CW 2 admitted that loan was not given in his presence. Furthermore, legal notice dated 12.12.2019 Ex. CW 1/5 do not bear the fact that the loan of Rs.14 lakh was given from the complainant by taking money from Rahees Pal and Sunil Malik. The complainant has stated that her husband has taken loan of Rs.12.5 lakhs to return the amount borrowed from CW 3 and CW 4. However, the complainant alongwith CW 2 failed to show that the loan of Rs.12.5 lakhs was sanctioned from the bank to return the amount borrowed from CW 3 and CW 4 which was given to the accused. Once the accused has discharged CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 18 of 21 the burden of proof on the basis of preponderance of probabilities, then it is upon the complainant to prove his case beyond reasonable doubts. In the present case, complainant has not successfully verified her source of funding and also has not proved the alleged loan advancement. She has further failed to bring on record her ITR statement and any document to show that loan was advanced by her to the accused. It was held by Hon'ble Supreme Court in Kanhaiya Lal vs. Rajender Kumar Sharma, that it is incumbent on the complainant to have explained his financial capacity when by virtue of evidence on record, the lack of same i.e. financial capacity becomes apparent.
25. In the case of 'Kulvinder Singh vs Kafeel Ahmad', Cri.L.P.478 of 2011, decided on 04.01.2013, Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
26. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused ''must be'' guilty and not merely ''may be'' guilty. The mental distance between ''may be'' to ''must be'' guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of transaction. The accused has clearly presented a case which is superior in way. And as per the settled law, this is all what is required, as preponderance of CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 19 of 21 probabilities is not a rigorous standard of proof, but only so much evidence as makes the court learn in, in favour of one side and not the other. Consequently, the benefit of doubt must be given to the accused. The material on record does not suggest that the accused ''must be'' guilty whichever may one looks at it.
27. It is a settled position of law that the case of complainant should stand on its own leg. It cannot take advantage of the weakness of the defence, nor can the court, on its own, make out a case for prosecution and convict the accused on that basis. If the accused is not able to prove the defence taken by him, it does not mean the prosecution version is necessarily correct. Therefore, the contention of Ld. Counsel for complainant that no defence evidence has been led by the accused appears to be of no use in sailing as the complainant has herself failed to prove the necessary ingredients which are required to bring home the guilt of accused under Section 138 NI Act.
28. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, I hold that the complainant has failed to prove his case. The accused has been able to rebut presumption under Section 118 and 139 N.I Act arising in favour of complainant.
29. The complainant has been unable to prove the basic ingredients constituting an offence under Section 138 NI Act. Resultantly, the accused Sharmila Yadav stands acquitted of the offence under Section CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 20 of 21 138 Negotiable Instruments Act.
Digitally signedAnnounced in the open court on SHUBHI by SHUBHI
GUPTA
on this 16.08.2024 GUPTA Date: 2024.08.16
17:28:55 +0530
(SHUBHI GUPTA)
JUDICIAL MAGISTRATE FIRST CLASS,
(NI Act)-01, SOUTH WEST DISTRICT,
DWARKA, NEW DELHI
Note :-This judgment contains Twenty one pages and all the pages have been checked and signed.
CC No 1613 fo 2020 Babita Devi vs Babulal & Anr. 09.08.2024 Page no. 21 of 21