Delhi District Court
Jayanti Prasad Sharma vs . Billo Rani Page No. 1 Of 13 on 21 April, 2023
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 8665/2017
CNR NO.: DLND02-015355-2017
Sh. Jayanti Prasad Sharma
S/o Late Sh. Giri Raj Prasad Sharma
R/o H.No. B-86, Jain Colony
(Nanesh Enclave), Bawana Road,
Barwala, Delhi-110039.
......Complainant
versus
Ms. Billo Rani
W/o Sh. Satish Kumar
R/o Flat no.1296, Ground Floor
Type-2, Timarpur, Civil Lines,
North Delhi.
........Accused
JUDGEMENT
Date of Institution of Complaint : 07.06.2017 Police Station : Connaught Place Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 10.04.2023 Decision Qua Accused : Acquitted Date of Decision : 21.04.2023 BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgement, I shall decide the present complaint filed u/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) filed by the complainant CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 1 of 13 against the accused on account of dishonour of cheque bearing no.625540 dated 19.05.2017 for a sum of Rs.2,50,000/- drawn on State Bank of India allegedly issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
CASE OF THE COMPLAINANT
2. Brief facts of the case as per the complaint are that accused was an old acquaintance of complainant. It is further submitted that accused approached the complainant for a friendly loan in July, 2016, It is further submitted that complainant had given a friendly loan of Rs. 2,50,000/- to the accused through cheque and accused also executed a loan agreement with the complainant dated 02.08.2016. It is further submitted that after some time, complainant requested the accused for repayment of loan and accused in order to discharge her legal liability issued the cheque in question to the complainant.
3. It is further stated that on presentation, the cheque in question was returned dishonoured with remarks "Funds Insufficient" vide cheque return memo dated 23.05.2017. That thereafter, a legal notice was sent to the accused dated 24.05.2017 and since no payment was made within 15 days of the service of legal notice, then the present case has been filed.
4. In support of the case of the complainant, Ld. counsel for the complainant has relied on averments made in the complaint, the evidence by way of affidavit filed by the complainant, the presumption of law u/s. 118(a) r/w. 139 of the NI Act and the following documentary evidence:
CC No. 8665/2017Jayanti Prasad Sharma vs. Billo Rani Page No. 2 of 13
1. Copy of Loan agreement dated Ex.CW-1/1(OSR) 02.08.2016
2. Original Cheque in question Ex.CW-1/2
3. Original Bank return memo Ex.CW-1/3
4. Legal demand notice Ex.CW-1/4
5. Postal receipts Ex.CW-1/5 (colly)
6. Internet generated tracking reports Ex.CW-1/6 and Ex.CW-1/7
7. Cheque dated 02.08.2016 Mark-CW-1/8 CASE PROCEEDINGS
5. In the present matter notice of accusation u/s. 138 of the NI Act was served on the accused on 16.01.2019 and the accused pleaded not guilty and claimed trial. The plea of defence of the accused was also recorded by the court on the same day.
6. An oral application u/s. 145(2) of the NI Act moved on behalf of the accused was allowed vide order dated 18.04.2022 and the accused was granted an opportunity to cross-examine the complainant. The complainant was duly cross-examined and discharged and vide separate statement of the complainant dated 09.06.2022 the post-summoning evidence was closed.
7. Statement of accused u/s. 281 r/w. Section 313 CrPC was recorded on 21.11.2022 and all the incriminating evidence was put to the accused. During statement of the accused u/s 313 CrPC, the accused has admitted her signatures on the cheque in question but has denied having filled particulars on the same. She has further stated that she has not received the legal demand notice from the complainant, however, the address mentioned on the same is her correct address. She has further stated that she had given the cheque in question for security purposes and has CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 3 of 13 given a sum of Rs.10,000/- per month to one Mr. Jugal and the son-in-law of the complainant for approximately 15 months at the instance of the complainant.
8. Since the accused chose to lead Defence Evidence, matter was fixed for filing of appropriate application u/s. 315 CrPC along with list of witnesses, if required. Accused sought permission of this court to examine only one witness, Sh. Jugal Kishore for the defence and the same was allowed by this court vide order dated 21.11.2022 and he has been examined as DW-1. DW-1 was duly cross-examined by Ld. counsel for the complainant and discharged. Since no other witnesses sought to be examined on behalf of the defence, hence, vide order dated 23.02.2023, the defence evidence was closed and matter was adjourned for final arguments.
9. Final arguments were heard by this court on 10.04.2023.
10. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
11. At the very outset, it is pertinent to lay down the ingredients of the offence u/s. 138 of NI Act. In Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 4 of 13 discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, 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."
12. Before moving forward with the contentions of the accused, it is pertinent to note that as per the provisions of section 118(a) and 139 of the NI Act, in every case u/s. 138 of NI Act, there is a presumption of law that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability.
13. It is further pertinent to mention the relevant judgments on the point of presumption of existence of legally enforceable debt or liability. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 5 of 13 (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has been held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
14. In the facts of the present case, the signatures on the cheque in question have been admitted by the accused. Accordingly, this court raises presumption u/s. 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
DEFENCE OF THE ACCUSED
15. The accused has primarily taken two defences. The first defence taken by the accused is that the complainant is running a money lending business and accordingly, the loan cannot be said to be legally recoverable. The second defence taken by the accused is that there is no legally enforceable debt or liability in favour of the complainant equivalent to the amount of cheque in question as certain amount due towards the loan had already been CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 6 of 13 paid to the complainant by the accused, through one Sh. Jugal Kishore, who has been examined as DW-1.
FIRST DEFENCE
16. In regard to the first defence of the accused, Ld. Counsel for the accused has drawn the attention of this court towards the following portion of the testimony of the witness DW-1, Sh. Jugal Kishore, who has deposed as follows:
"The complainant does not possess any money lending license for advancing loan. I have helped the complainant in advancing loan to 31 persons. I am not aware as to how many other people have taken loan from the complainant"
17. Ld. Counsel for the accused has further submitted that during cross-examination of the complainant as CW-1, the complainant has clearly denied that he is running money lending business, however, his version is directly contradicted by one of his past employees, who has deposed before the court as DW-1. He has further submitted that from the above statement of witness DW-1, it is conclusively established that the complainant is running a money lending business.
18. Per contra, Ld. Counsel for the complainant has submitted that mere bald assertions in relation to running of money lending business of the complainant does not mean that the complainant runs any money lending business. He has further submitted that there is no proof on record to show, even on the basis of preponderance of probabilities, that the complainant is running money lending business.
19. I have heard the rival submissions on the above point and perused the statements of CW-1 and DW-1 in this regard. It is CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 7 of 13 pertinent to note that witness DW-1 has nowhere stated that the complainant is running any money lending business. Merely advancing loan to 31 unnamed persons does not mean that complainant is running any money lending business. The accused has failed to produce any proof of loan advanced by the complainant to any other person except the accused in the present matter or if such loan was given on interest or because of friendly relations between the parties.
20. Since this fact is being alleged by the accused that complainant is engaged in the money lending business, hence, the burden of proving was also on the accused to to prove the same. There is not a single statement in the entire examination of DW-1 wherein it is stated that the complainant is running money lending business.
21. In order to prove that the complainant was running a money lending business, the accused could either have examined certain other persons who have taken loan from the complainant on interest due to professional relations and not due to friendly relations between them, or the complainant could also have placed on record certain other documentary evidence in this regard, but merely putting suggestions in this regard during cross-examination of CW-1 or mere deposition of DW-1 that the complainant has also given loan to certain other persons cannot come to the aid of the accused.
22. In view of the above observations, I do not find merit in the statements made on behalf of the accused that the complainant is running a money lending business and the accused has failed to establish her defence that the CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 8 of 13 complainant is running a money lending business and hence, debt is not legally recoverable.
SECOND DEFENCE
23. The second defence of the accused is that there is no legally enforceable debt or liability in favour of the complainant equivalent to the amount of cheque in question. In this regard, Ld. Counsel for the accused has drawn the attention of this court towards the following portion of the testimony of witness DW-1, Sh. Jugal Kishore:
"The accused used to pay approximately Rs. 14,000/- per month towards interest and principal amount out of which the amount of principal was only Rs. 10,000/- and till date the accused has paid approximately 14 installments towards the repayment of the loan in question"
24. Ld. Counsel for the accused has further submitted that various doubts have been raised concerning the genuineness of the agreement which is Ex.CW-1/1 (OSR). He has further submitted that it is conclusively proved on the basis of following portion of of the testimony of witness DW-1, Sh. Jugal Kishore that the agreement Ex.CW-1/1 (OSR) does not narrate the actual transaction between the parties:
"It is incorrectly mentioned in the agreement that the loan in question was interest free. The accused told me about the purpose of the obtaining loan as she was in need of money for marriage of her daughter. It is incorrectly mentioned in the agreement that the accused required money for construction of her house. Vol. The accused was occupying a Government accommodation provided by Railway Deptt"
25. On the basis of the testimony of witness DW-1, Sh. Jugal CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 9 of 13 Kishore, Ld. Counsel for the accused has submitted that the accused has clearly been able to prove that there has been repayment of part of the loan, i.e., a sum of Rs.1,40,000/- towards principal and a sum of Rs.56,000/- towards interest to the complainant and hence, the accused cannot be said to have been responsible for the entirety of the amount of the cheque in question i.e. Rs.2,50,000/-. Ld. counsel has further submitted that even if the entire case of the complainant is admitted to be true, then also the accused is liable only for the sum of Rs.1,10,000/- remaining to be paid to the complainant.
26. Per contra, Ld. Counsel for the complainant has submitted that there is not even a single suggestion during the entire cross- examination of CW-1 that there has been certain repayment towards the loan in question to the complainant by the accused. He has further submitted that this defence has been taken by the accused for the first time at the stage of recording her statement u/s. 313 Cr.P.C. and before this stage, this defence had not been taken by the accused at any point of time.
27. Ld. counsel for the complainant has further submitted that since witness DW-1, Sh. Jugal Kishore is an interested witness, hence, he has deposed falsely against the complainant and his testimony cannot be relied upon by this court.
28. Ld. counsel for the complainant has further submitted that in regard to the defence of part repayment of the accused, there is an apparent contradiction in the statement of the accused u/s. 313 CrPC, wherein she has stated that the she has paid 15 installments of Rs. 10,000/- to DW-1 and the son-in-law of the complainant and the statement of DW-1, when he has stated that CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 10 of 13 he has received a sum of Rs.14,000/- (Rs. 10,000/- towards principal and Rs. 4,000/- towards interest) in 14 installments from the accused. He has thus submitted that neither the amount of one single installment is proved nor the total number of installments given by the accused are proved.
29. I have heard the rival submissions on the above point and perused the record of the case including the statements of CW-1 and DW-1 in this regard.
30. The cross-examination of DW-1 by ld. counsel for the complainant reads as follows:
It is wrong to suggest that I am deposing falsely for the reason that I am the interested witness.
31. Mere giving of a suggestion by the counsel for the complainant that the witness is deposing falsely cannot help the complainant in rebutting the testimony of DW-1. On the one hand, ld. counsel for the complainant is stating that the no suggestion in regard to the repayment has been given to CW-1 in his cross-examination and on the other hand, he himself has not given any suggestion to witness DW-1 in regard to his deposition.
32. It is further to be noted that DW-1 has not given testimony only in favour of the accused and has also given testimony in favour of the complainant, where he has identified the loan agreement, Ex.CW-1/1 (OSR) and has also deposed that the accused has received the loan amount from the complainant. Ld. counsel for the complainant has not explained even one reason as to why the witness DW-1 may be deposing falsely, when the CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 11 of 13 accused admittedly does not have a personal or professional relation with the complainant. The complainant has not denied that Sh. Jugal Kishor was an employee of the complainant. There is nothing on record to suggest that the complainant and Sh. Jugal Kishor were having sour relations. Hence, in such circumstances, it cannot be said that DW-1 is an interested witness.
33. In my considered opinion, the contradictions pointed out by the complainant in the statements made by the accused and DW-1 cannot be said to be contradictions in material particulars. The testimony of DW-1 has clearly gone unrebutted and proved.
34. Reliance is placed by this court on the judgments of Hon'ble High Court of Delhi in Starkey Laboratories India Pvt. Ltd. vs. Sanjay Gujral decided on 24.09.2019 in Crl.L.P. 492/2017 and in Alliance Infrastructure Project Pvt. Ltd. v. Vinay Mittal, 2010 SCC OnLine Del 182, wherein it has been held that if the liability as on the presentation of the cheque is not equivalent to the amount of cheque in question, then the accused cannot be held liable for offence u/s. 138 NI Act. In this regard, reliance is also placed by this court on the judgment of Hon'ble Supreme Court of India in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel, (2023) 1 SCC 578.
35. In view of the above discussion and since the testimony of DW-1 has gone unrebutted and proved, hence, the accused has successfully been able to prove that she has made part repayment of loan in question and that there is no legally enforceable debt or liability in favour of the complainant equivalent to the amount of cheque in question.
CC No. 8665/2017Jayanti Prasad Sharma vs. Billo Rani Page No. 12 of 13 FINAL ORDER
36. It is also imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
37. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has been able to raise a probable defence and has been able to prove her defence on the basis of preponderance of probabilities that there is no legally enforceable debt or liability in favour of the complainant and against the accused equivalent to the amount of cheque in question as on the date of its drawal or on the date of its presentation.
38. Thus, the accused has been able to rebut the presumption u/s. 118 r/w. section 139 NI Act. Furthermore, the complainant has failed to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question.
39. In view of the aforesaid, accused, namely, Ms. Billo Rani, w/o Sh. Satish Kumar, is hereby acquitted of offence under section 138 Negotiable Instruments Act.
Announced in Open Court (Anshul Singhal) on 21.04.2023 MM(N.I. Act)-03/NDD/RACC/ND
Note: This judgment contains 13 signed pages and each page has been signed by the undersigned.
(Anshul Singhal) MM(N.I. Act)-03/NDD/RACC/ND 21.04.2023 CC No. 8665/2017 Jayanti Prasad Sharma vs. Billo Rani Page No. 13 of 13