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Delhi District Court

Cc No. 4856/19 Neeru Babbar vs . M/S W. Ainaa & Ors. Page No. 1/7 on 19 February, 2022

                          IN THE COURT OF ANKIT MITTAL,
                      METROPOLITAN MAGISTRATE - 04, N. I. ACT,
                 SOUTH­EAST DISTRICT, SAKET DISTRICT COURTS, DELHI.




                                          JUDGMENT

Ms. Neeru Babbar, D/o Late Sh. Balram Babbar R/o A/111, Amar Colony, Lajpat Nagar­4, Delhi­110024. ...................Complainant Versus M/s W. Ainaa Prop. Nitin Gautam, Regd. Office at:

MGF Metropolitan Mall, Saket, New Delhi­110017.

Nitin Gautam, S/o Laxmi Gautam, Proprietor, W.Ainaa Shop No. 43 and 44 MGF,Metropolitan Mall, Saket, New Delhi­110017.

..................Accused no. 2 PS - Amar Colony Under Section 138 of N. I. Act, 1881 CNR No. DLSE020144082019

a) Sl. No. of the case : CT No. 4856/2019

b) Date of filing of complaint : 11.04.2019

c) Name of the complainant : Ms. Neeru Babbar, D/o Late Sh. Balram Babbar CC No. 4856/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 1/7 R/o A/111, Amar Colony, Lajpat Nagar­4, Delhi­110024.

d) Name of the accused person(s) :1. M/s W. Ainaa Prop. Nitin Gautam, Regd. Office at:

MGF Metropolitan Mall, Saket, New Delhi­110017.

2.Nitin Gautam, S/o Laxmi Gautam, Proprietor, W.Ainaa Shop No. 43 and 44 MGF,Metropolitan Mall, Saket, New Delhi­110017.

e)          Offence complained of                            : Under Section 138 of N. I. Act,
                                                             1881
f)          Plea of accused                                  : Pleaded not guilty
g)          Final order                                      : Acquittal
h)          Date of such order                               : 19.02.2022



BRIEF STATEMENT OF THE REASONS FOR DECISION : ­

1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Ms. Neeru Babbar against accused Nitin Gautam. In gist, it is alleged in complaint that complainant had been working with the accused Nitin Gautam at his showrooms named and styled as the M/s W. Ainaa Showroom as a Showroom Manager at MGF, Metropolitan Mall Saket since, 01.12.2017. It is stated in the complaint that complainant in October 2018 was diagnosed with the Breast Cancer (at the end of third stage). It was further stated in the complaint that complainant had brought to the notice of the accused Nitin Gautam about her severe illness ie. Cancer and its treatment that the complainant had to CC No. 4856/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 2/7 undergo immediately to save her life. With persistent demand raised by the complainant to accused qua her outstanding dues on the account of amount borrowed ie. Rs. 3,00,000/­ by the accused. Accordingly, accused Nitin Gautam had issued cheque in question ie. cheque bearing no. 166200 dated 15.01.2019 for a sum of Rs. 3,00,000/­, drawn on IDBI Bank, Malviya Nagar which is Ex. CW1/2 . Complainant presented the cheque, but same was dishonored vide memo Ex.CW1/3 and Ex. CW1/4 with reasons 'funds insufficient'. The complainant sent a legal demand notice on 27.02.2019 vide Ex.CW1/5 via speed post Ex.CW1/6 which was delivered vide tracking report Ex.CW1/7 and Ex. CW1/7A and since no reply or payment was made within statutory period of legal demand notice, hence, this complaint. Further, she also annexed photocopies of medical records Ex. CW1/1, Ex. CW1/1a, Ex. CW1/1b, Ex. CW1/1c, Ex. CW1/1d, Ex. CW1/1e, Ex. CW1/1f, Ex. CW1/1g alongwith the complaint. Further, she also adopted her pre­ summoning evidence by way of affidavit which is Ex. CW1/A (page 1 &2) in her post summoning evidence. Further, complainant tendered the following documents:­ Complainant's bank statement of Central Bank of India Ex. CW1/8, Complainant bank statement of Punjab and Sindh Bank Ex. CW1/9. Print out of whatsapp chat screen shots of Ms. Neeru Babbar ie. complainant and accused Nitin Gautam Ex. CW1/10. Print out of whatsapp chat screenshots of Prem Babbar mother of complainant and accused Nitin Gautam Ex. CW1/11. Transcript of telephone conversation of Neeru Babbar, Prem Babbar, sister in law of complainant and Nitin Gautam Ex CW1/12. Audio CD of telephonic conversation of above transcript Ex. CW1/13. Certificate u/s 65­B, Indian Evidence Act Ex. CW1/14 alongwith additional affidavit Ex. CW1/A1 in her examination u/s 311 Cr.P.C. PRE­SUMMONING EVIDENCE & NOTICE

2. Pre­summoning evidence was led by the complainant side and after hearing CC No. 4856/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 3/7 complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was framed against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 05.09.2019 in which accused pleaded not guilty and claimed trial. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to cross­examine the complainant's evidence.

COMPLAINANT'S EVIDENCE

3. Complainant stepped in witness box as CW1 adopted her affidavit of pre­ summoning as her evidence reiterating almost all facts of complaint, stating all exhibits available on record.

4. Complainant evidence was closed vide order dated 14.10.2019 and thereafter, matter was fixed for recording statement of accused.

STATEMENT OF ACCUSED

5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately on 17.10.2019. Incriminating evidence was put to him. Accused denied all the allegations. In recording of statement of accused, accused opted to lead defence evidence.

Defence of Accused.

                                      Oral Evidence (DW1 Nitin Gautam)
                                    Documentary Evidence
      Ex.DW1/C1        ITR for assessment year 2019­20
      Ex.DW1/C2        Form of GSTR­3B for year 2018­19




CC No. 4856/19                  Neeru Babbar Vs. M/s W. Ainaa & Ors.           Page No. 4/7

6. Thereafter, defence evidence was closed vide order dated 27.02.2020.

7. Final arguments from both sides were heard at length and written synopsis/arguments were filed by both the parties. Case file perused. INGREDIENTS OF OFFENCE AND DISCUSSION­

8. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence, as highlighted below:­ First Ingredient: The cheque was drawn by a person on an account maintained by him/her 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; 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 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.

9. The accused can only be held guilty of the offence under Section 138 NI Act if the above­mentioned ingredients are proved by the complainant coextensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled CC No. 4856/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 5/7 In the case on hand, we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer and it is only the drawer of the cheque who can be prosecuted. In the case on hand, it is apparent, the accused is not a drawer of the cheque.

10. From the perusal of cheque in question i.e. Ex. CW1/2, it reveals that it was drawn on the account of one W.Square which is admittedly signed by the accused. However, the complainant has arrayed the accused Nitin Gautam Proprietor of W. Ainaa having shop no. 43 and 44 MGF, Metropolitan Mall, Saket, New Delhi which apparent from the careful perusal of memo of parties, complaint and re­summoning evidence of complainant. Further, the accused in his cross­ examination under 315 Cr.P.C placed on record Ex.DW1/C1 which is ITR return for assessment year 2019­2020 and GSTR­3B for year 2018­2019 of W.Square and perusal same reveals that the concerned firm is a partnership firm. Further, it is pertinent to mention here that on the behalf of complainant, it was suggested to the accused that whether the firm W. square is a partnership firm or not and was acknowledged by the accused that the concerned firm is a partnership firm. Further accused stated in his cross that apart from him, his mother is also a partner in the W. Square firm.

11. In the landmark judgment passed by the Hon'ble Apex Court in the case of Aparna A.Shah vs M/S Sheth Developers P.Ltd.& Anr on 1 July, 2013 wherein para 8 it was observed that " In order to constitute an offence under Section 138 of the N.I. Act, this Court, in Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC

683........... 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." Considering the language used in Section 138 and taking note of CC No. 4856/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 6/7 background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the "drawer" of the cheque who can be made liable for the penal action under the provisions of the N.I. Act. It is settled law that strict interpretation is required to be given to penal statutes......."

12. In the light of the above discussion and aforesaid decision, this court of considered opinion that under Section 138 of the Act, it is clear that for attracting Section 138 of the Negotiable Instruments Act,a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money from out of that of account.

Thus, it can safely inferred the drawer of cheque which is made from the account of W.square is not made accused in the present complaint, therefore accused cannot be prosecuted for the offence under Section 138 of the Negotiable Instruments Act.

13. Further, since Section 138 NI Act is a technical offence, all ingredients mentioned in paragraph stated above must be established for the accrual of cause of action in favour of the Complainant. In view of the above detailed discussion, the Complainant has failed to establish the essential ingredients of Section 138 of NI Act, hence no presumption under Section 139 is attracted in the present case. Since the Complainant has failed to discharge his initial burden under Section 138 NI Act, there is no requirement to delve into further evidence in the present case. Accordingly, the ingredients of Section 138 of NI Act, are not proved. Therefore, the Accused Nitim Gautam is held not guilty and is acquitted of the offence punishable under Section 138 of NI Act.

Announced in the open Court (ANKIT MITTAL) on 19th February 2022. M.M.­04/N.I.Act/SouthEast,Saket/Delhi 19.02.2022.

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