Delhi District Court
Sunil Kumar vs Sunita on 25 February, 2025
IN THE COURT OF MS. KAHKASHAN JABIN, JMFC (NI ACT)
DIGITAL COURT-03 SOUTH DISTRICT, SAKET COURTS
COMPLEX: NEW DELHI
1. Complainant case number 5032/2021
2. Name of the complainant Sunil Kumar
S/o Shri. Jawahar Lal
R/o House no. 91-B, Block J-1, Gali No. 1,
Sangam Vihar, New Delhi.
3. Name and address of the Sunita
accused W/o Shri. Anil Kumar Negi
R/o F-3/596, Gali No. 6, Sangam Vihar,
New Delhi -110062.
4. Offence complained of Section 138 of the Negotiable Instruments
Act, 1881
5. Plea of the accused Pleaded not guilty and claimed trial
6. Final order Acquitted
7. Date of institution 01.10.2021
8. Date of reserving the 10.02.2025
judgment
9. Date of pronouncement 25.02.2025
JUDGMENT
1. Vide this judgment, this court shall dispose of aforementioned complaint case filed by the complainant namely Sunil Kumar against the accused namely Sunita in respect of dishonour of cheque, bearing no. 420784 dated 14.03.2021 for an amount of Rs.2,00,000/- (Rupees Two Lakhs only), drawn on KAHKASHAN Canara Bank, Delhi Khanpur Branch-110062 (hereinafter JABIN referred to as "Cheque in question"). Digitally signed by KAHKASHAN JABIN Date: 2025.02.25 16:24:27 +0530
2. In a nutshell, the case of the complainant is that accused having CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.1 of 24 cordial relations with the complainant approached him in September 2020 for grant of loan of Rs.2,00,000/- for his personal needs and requirements. Thereupon, complainant arranged for the funds from his savings and granted friendly loan of Rs.2,00,000/- in cash to the accused. It is alleged that upon being approached by the complainant, accused issued the cheque in question to repay the loan amount. Upon presentation of the cheque in question by the complainant, it was retuned dishonoured with remarks "Funds Insufficient" vide return memo dated 23.03.2021. Consequently, complainant sent legal demand notice dated 09.04.2021 to the accused through speed post demanding the cheque amount. Since, the accused failed to pay the amount of the cheque in question within the statutory period of 15 days from the receipt of legal demand notice, hence, the complainant filed the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
3. Upon prima facie consideration of the complaint, evidence by way of affidavit and documents annexed therewith, accused was summoned vide order dated 28.10.2021.
4. Upon appearance of the accused, notice under Section 251 Cr.P.C. was served upon her on 20.05.2022, to which she pleaded not guilty and claimed trial. At this stage, accused admitted her signatures on the cheque in question and also admitted that she received legal demand notice. Additionally, KAHKASHAN JABIN accused stated that the complainant had given her loan of Digitally signed by Rs.34,500/- and had taken two cheques including the cheque in KAHKASHAN JABIN Date: 2025.02.25 16:24:32 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.2 of 24 question from the accused as security cheque. She further submitted that she has returned the loan amount of Rs.34,500/- to the complainant and has no liability towards the complainant. She further alleged that complainant has misused the cheque in question and has not returned the other security cheque.
5. Thereafter, an application under Section 145(2) NI Act moved on behalf of the accused was allowed vide order dated 02.07.2022 and complainant was cross-examined.
6. In post-summoning evidence, complainant examined himself as CW1 and tendered his evidence by way affidavit i.e. Ex. CW1/A and relied on cheque in question being Ex.CW1/1, return memo dated 23.03.2021 being Ex.CW1/2, legal demand notice dated 09.04.2021 being Ex.CW1/3, postal receipt being Ex.CW1/4(colly) and consignment report of speed post being Ex.CW1/5. CW1 was duly cross-examined by Ld. Counsel for the accused and discharged.
7. Since no other witness was sought to be examined by the complainant, complainant evidence was closed vide order dated 01.09.2022.
8. Statement of accused under Section 313 read with Section 281 Cr.P.C was recorded 01.09.2022 whereby entire incriminating evidence was put to her to which she denied the liability qua the cheque amount towards the complainant and stated that she did not take loan of Rs. 2,00,000/- from the complainant. The KAHKASHAN JABIN other defence disclosed by accused is that she issued two Digitally signed by KAHKASHAN JABIN security cheques to complainant and stated that the cheque in Date: 2025.02.25 16:24:35 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.3 of 24 question was issued as security cheque at the time when complainant granted loan of Rs.30,000/- to the accused and another cheque was issued at the time when accused took loan of Rs. 34,500/- from the complainant on 21.02.2020. Accused further submitted that despite the repayment of both these loans with interest, complainant did not return the security cheques. Since the accused chose to lead defence evidence, the matter was adjourned for the same.
9. Thereafter, an application under Section 315 Cr.P.C moved on behalf of the accused was allowed vide order dated 26.09.2022 and accused deposed as DW1. She was duly cross examined and discharged. During the course of her cross examination, she brought on record a notebook being Ex.DW1/1 showing the return of alleged previous loan amounts.
10.Accused also examined her husband Sh. Anil Negi as DW2. He also relied upon Ex. DW1/1. He was duly cross examined by Ld. Counsel for the complainant and discharged.
11. Accused also examined sister of complainant Ms. Anita as DW3. She was duly cross examined by Ld. Counsel for the complainant and confronted with Ex. DW1/1. DW3 was also cross-examined by Ld. counsel for the accused with the permission of the court. DW3 was further cross examined by Ld. Counsel for the complainant and discharged.
12.Since no further witness was sought to be examined in defence, DE was closed vide order dated 03.06.2024 and thereafter final Digitally signed by arguments were heard on behalf of both the parties on KAHKASHAN KAHKASHAN JABIN JABIN Date:
2025.02.25 16:24:39 18.01.2025 and 10.02.2025. +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.4 of 24
13.Rival submissions have been considered and record of the case has been perused.
Law Under Consideration
14.It is well settled position of law that to constitute an offence under S.138 NI Act, following ingredients are required to be fulfilled:
14.1. Drawing of the cheque by a person on an account maintained by him with a bank, 14.2. The cheque should have been issued for discharge in whole or in part of any legally enforceable debt or liability, 14.3. The cheque should have been presented to the bank within a period of three months from the date on which it is drawn; 14.4. The cheque is returned unpaid by the drawee bank because of the amount of money standing to the credit of the account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account; 14.5. That the payee or holder in due course issued notice in writing to the drawer of the cheque demanding payment of the cheque amount within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
14.6. The the drawer of the said cheque failed to make the payment of the cheque amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
KAHKASHAN It is only when all the aforementioned ingredients are JABIN Digitally signed by satisfied, that the person who draws the cheque is said KAHKASHAN JABIN Date: 2025.02.25 16:24:42 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.5 of 24 to have committed an offence under Section 138 of the NI Act.
15.Under the provisions of NI Act, the burden of proving foundational case by the complainant has been dispensed with by virtue of Section 118(a) and 139 NI Act which raises presumption of liability against the accused. Clause (a) of Section 118 NI Act provides that: "Until the contrary is proved, the following presumptions shall be made...that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration"; Further Section 139 NI Act provides that: "It shall be presumed, unless the contrary is proved, that the holder of a cheque received cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
16.Thus, where the complainant prima facie satisfies the court that cheque was issued by the accused and it has been returned dishonored, the court has to presume that the cheque was issued in discharge of legally enforceable debt or liability. Hon'ble Apex Court in Rajesh Jain v. Ajay Singh 2023 INSC 888 held that, "Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established". KAHKASHAN JABIN
17.The effect of the presumption is that it transfers the evidential Digitally signed by KAHKASHAN JABIN burden on the accused. And the party upon whom evidentiary Date: 2025.02.25 16:24:45 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.6 of 24 burden is put if that party fails to furnish evidence, he loses. Meaning thereby, Section 139 NI Act acts as a 'reverse onus' clause requiring the accused to prove that he is not liable or that there does not exist legally enforceable debt or legal liability to the tune of cheque amount towards the complainant. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. It has been observed by the Hon'ble Supreme Court of India in Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, that once accused admits the signature on the cheque, the presumption of liability is clinged to the case of complainant.
18.However, the evidentiary burden upon accused is very slight and is assessed on the measure of preponderance of probabilities. Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan AIR 2010 SC 1898 held that the standard of 'preponderance of probabilities' is akin to burden of proof in civil proceeding. Thus, accused can thwart the presumption either by giving independent direct evidences or by circumstantial evidence. It has been held in case of Rajesh Jain (supra) and Kumar Exports and Sharma Carpets (2009) 2 SCC 513 that in order to rebut the presumption of liability on the threshold of preponderance of probabilities accused can take aid of complainant's version in the original complaint, the case in the legal demand notice, complainant's case at the trial, as also the plea of the accused in the reply to KAHKASHAN JABIN demand notice, his statement under Section 313 Cr.P.C. or at Digitally signed by KAHKASHAN JABIN Date: 2025.02.25 CC NI ACT 5032/2021 16:24:48 +0530 SUNIL VS SUNITA Page No.7 of 24 the trial as to the circumstances under which the cheque was issued.
19.In the present case, in order to discharge the initial burden to prove the abovementioned ingredients of Section138 NI Act, the complainant relied upon his compliant, his evidence affidavit Ex.CW1/A and placed on record several documents being CW1/1 to CW1/5. Complainant submitted that the accused has already admitted her signatures on the cheque in question and hence the presumption that the cheque in question was issued in discharge of legally enforceable debt or liability arises in favour of the complainant in light of Section 118 (c) read with Section 139 of NI Act. It is further argued that the documentary evidence put forth in the form of cheque in question Ex.CW1/1, bank return memo Ex.CW1/2, legal demand notice Ex.CW1/3, postal receipt Ex.CW1/4(colly) and consignment report of speed post Ex.CW1/5 coupled with the fact that no payment was made within the period of 15 days after receipt of legal demand notice and also in light of admissions of the accused, the offence under Section 138 NI Act stands duly proved against the accused. It has been submitted that since all the ingredients of Section 138 NI Act are fulfilled, the accused should be convicted.
20.Since the complainant who deposed as CW1 discharged the initial burden on the basis of documents mentioned hereinabove and admissions of accused, all the other Digitally ingredients of offence under Section 138 NI Act stand signed by KAHKASHAN KAHKASHAN JABIN JABIN Date:
2025.02.25 successfully established. And since the accused has admitted 16:24:51 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.8 of 24 his signatures on the cheque in question and the fact of issuance of cheque in question from her account at the stage of framing of notice under Section 251 Cr.P.C., the presumption under Section 118 (a) and 139 NI Act shall come into play against the accused. The onus is now on accused to rebut the mandatory presumptions under NI Act by raising probable defence to show that the cheque in question was not issued in discharge of legally enforceable debt or liability.
21.In order to rebut the presumption accused has raised a sole defence that there is no legally enforceable debt or liability of the accused in favour of the complainant to the tune of amount mentioned in cheque in question as on the date of its issuance or presentation.
Defence of Non-existence of Legally Enforceable Debt/Liability
22.Ld. Counsel for accused argued that complainant had no financial capacity to advance the loan of Rs.2,00,000/- to the accused as complainant himself admitted during cross- examination that he was under financial stress during Covid19 lockdown and that he also took financial assistance from his friends when his leg was fractured in an accident. It is further argued that complainant has mentioned different versions about his source of funds as in his complaint, he stated that he secured funds from his savings to grant loan to accused while KAHKASHAN during cross-examination first he stated that he sold his auto to JABIN secure funds and later said that he took money from his father Digitally signed by KAHKASHAN JABIN Date: 2025.02.25 after sale of certain ancestral property whose details 16:24:54 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.9 of 24 complainant failed to disclose. It is further argued that complainant advanced previous loan of small amount of Rs.34,500/- to accused through cheque, however this time complainant advanced loan of Rs.2,00,000/- to accused in cash.
23.Per contra, Ld. Counsel for the complainant argued that upon cordial relations with the accused and her husband as they resided in the same locality, complainant advanced loan to accused. It is further argued that complainant had financial capacity as accused has admitted in cross-examination dated 29.03.2023 that complainant lent money on interest basis to 6-7 people.
24.Ld. Counsel for accused has further argued that complainant has not come to court with clean hands as he has concealed material facts in his complaint regarding advancement of previous loans of small amounts of Rs. 30,000/- and Rs.34,500/- by the complainant to the accused which were duly returned later.
25.Per contra, Ld. Counsel for complainant has argued that since accused himself admitted in his plea of defence under Section 251 Cr.P.C. and also at the stage of recording of statement under Section 313 Cr.P.C. that complainant had previously granted her loans of amount of Rs.30,000/- and Rs.34,500/-, hence it reflects that complainant often used to grant loans to accused on several occasions.
26.Moving ahead, Ld. Counsel for complainant has argued that Digitally signed by there are several discrepancies in the plea of defence disclosed KAHKASHAN KAHKASHAN JABIN JABIN Date:
2025.02.25 by the accused at various stages of trial. It is argued that in her 16:24:57 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.10 of 24 examination-in-chief dated 26.09.2022 accused stated she issued one cheque to the complainant however in his plea of defence at the stage of framing of notice under Section 251 Cr.P.C. accused stated she issued two security cheques to the complainant. Second discrepancy highlighted by the Ld. Counsel for the complainant is that accused stated in her examination-in-chief that she issued cheque in question as security cheque against loan amount of Rs.30,000/- advanced by the complainant, however, at the stage of framing of notice under Section 251 Cr.P.C. it is stated by the accused that she issued two security cheques against advancement of loan of Rs. 34,500/- by the complainant.
27.It is argued on behalf of the accused that during Covid period in December 2019 complainant's leg got fractured and therefore, complainant assigned the task of taking back the sum advanced to his sister 'Anita'. And pursuant to which Anita signed against the receipt of money from the accused which is reflected in notebook Ex.DW1/1 on which accused relies.
28.Per contra, Ld. Counsel for complainant has stated that accused has relied on notebook DW1/1 to fortify her defence that loan amount of Rs.30,000/- taken from the complainant was duly returned by accused with interest through complainant's sister, however it is argued that accused has created a new story to negate her liability by showing relation between complainant's sister and the accused. It is further argued that transaction KAHKASHAN reflected in Ex. DW1/1 is altogether a different transaction JABIN Digitally signed by pertaining to the 'committee' running between the accused and KAHKASHAN JABIN Date: 2025.02.25 16:25:01 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.11 of 24 complainant's sister and has no nexus with the present case as it is completely silent as to the transaction of loan amount, interest payable, fact of security cheque being issued by the accused and particularly, in light of the fact that accused admitted in her cross-examination dated 29.03.2023 that complainant has not signed any page of Ex.DW1/1.
29. Ld. Counsel for accused has argued that this case is a sheer example of misuse of security cheques where the complainant first advanced loans of small amount of Rs. 30,000/- and 34,000/- to the accused and took blank security cheques from the accused and even after their due return, complainant did not return the security cheques and misused them by filing the present complaint for an inflated amount of Rs.2,00,000/- in the cheque in question, which the accused was never liable to pay to the complainant.
30.Per contra, Ld. Counsel for complainant has argued that accused in her defence has merely alleged that complainant has misused the security cheque issued by the accused however, accused did not file any police complainant against the complainant regarding such misuse.
31.Accused has relied upon following judgments in support of his contentions:
(i) Badami v. Bhali, (2012) 11 SCC 574 by Hon'ble Supreme Court of India.
(ii) Dattatraya v. Sharanappa (2024) 8 SCC 573 passed by Hon'ble Supreme Court of India. KAHKASHAN JABIN
(iii) Basalingappa v. Mudibasappa (2019) 5 SCC 418 Digitally signed passed by Hon'ble Supreme Court of India. by KAHKASHAN JABIN Date: 2025.02.25 16:25:04 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.12 of 24
32.After perusal of the record and upon hearing the submissions of the parties at length, apropos the defence of the accused qua non-existence of legally enforceable debt or liability, this court has arrived at the following findings:
32.1. The accused tried to rebut the presumption of liability by averring that loan of Rs.2,00,000/- was never advanced by the complainant to her. To fortify her defence accused has challenged the financial capacity of complainant and highlighted his contrasting versions regarding source of funds that he alleged to arrange for advancing the loan. 32.2. Complainant has stated in the complaint that he arranged money through difficulty from his savings to grant loan to accused. However, during cross-examination complainant submitted that he advanced loan to accused after taking his share out of the sale proceeds of certain ancestral property from his father. Relevant extract from the complaint and testimony of complainant/CW1 is reproduced below;
Para 2 of Complaint: "On the cordial relation, the complainant had hardly arranged the money of Rs.2,00,000/- from his saving and granted the friendly loan in cash to her..."
*** Testimony of CW1:"I extended loan to the accused after asking for the money due to me Digitally by my father after the sale of certain property signed by KAHKASHAN KAHKASHAN JABIN JABIN Date:
2025.02.25 16:25:07 of which I was a share holder.....When the +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.13 of 24 accused approached me for loan, I sought time of 2-4 days for me to arrange the funds, and I approached my father at that time to give me my share of the sale proceeds of certain family property as aforesaid....My father gave me my share of sale proceeds of the family property as 400 currency notes in denomination of Rs. 500.
Said amount was given to me because I had to extend loan to the accused."
32.3. Complainant also failed to disclose the details of the alleged ancestral property and his exact share in alleged sale proceeds of that property making his version more doubtful qua the alleged source of funds. Relevant extract from the testimony of complainant/CW1 is reproduced below;
CW1:"My share in the sale of family property in question was more than Rs.2,00,000/-, but I do not know the exact share. I had only asked for Rs.2,00,000/-."
32.4. Further, there are not only contrasting versions of complainant qua the source of funds but also with respect to the timing of advancing the alleged loan amount of Rs.2,00,000/-. In the complaint, he has stated that when accused approached the complainant in September 2020 for grant of loan, he advanced the loan after arranging the money. However, during cross-examination, complainant Digitally signed by KAHKASHAN KAHKASHAN JABIN JABIN Date:
stated that he does not remember when he took money 2025.02.25 16:25:10 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.14 of 24 from his father for the purpose of advancing loan to accused.
CW1: "I do not remember the exact date when I had asked my father to bring me sum of Rs.2,00,000/-. Vol. the same was around the time I fractured my leg"
32.5. Abovementioned testimony also highlights complainant's admitted financial position around the time of advancement of loan which becomes clearer with the help of other part of his testimony. During cross-examination complainant admitted that at the time of his leg injury he asked for financial assistance of Rs.1,00,000/- from his friends. Complainant also admitted that he was under financial stress and had no income during Covid19 lock down. He also admitted that he is a driver and he sold an auto to procure a sum of Rs.3,00,000/- during the period of Covid lockdown. Relevant extracts of his testimony is reproduced below;
CW1:"It is correct that I was under financial stress during the Covid-19 lockdown. It is correct that some friends had loaned me some money at the time I sustained fracture in my leg. I had taken a sum of Rs. 50,000/- from Amar Pal R/o unknown, whom I had known KAHKASHAN since he was a fellow auto driver, and a sum of JABIN Rs. 50,000/- from Surender Kumar Gupta R/o Digitally signed by KAHKASHAN unknown, whim I had known since he was JABIN Date: 2025.02.25 16:25:13 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.15 of 24 fellow auto driver."
*** CW1:"I had once sold an auto and its sale proceeds amounting to almost Rs.3,00,000/- had been deposited in bank account around the time of Covid lockdown"
*** CW1:"During covid lockdown, I had no income."
32.6. Further, the Complainant failed to put forth a clear version of dates and events that has happened; as complainant has stated that he was under financial stress during Covid times, going on to the extent to admit the fact that he had no income during Covid lockdown and he took financial assistance from his friends at the time when he got fracture in his leg in an accident and he asked for Rs.2,00,000/- from his father around the same time when his leg was fractured. He admitted that fracture in leg happened after he advanced loan of Rs. 30,000/- to the accused but he failed to disclose the date or approx time when he advanced this loan of Rs. 30,000/-,except that he stated during cross-examination that "It is correct that I extended a loan of Rs.30,000/- to the accused, but I cannot say if the same was extended on 06.12.2019."
Digitally signed by KAHKASHAN 32.7. Nonetheless, these statements are atleast sufficient to cast KAHKASHAN JABIN JABIN Date:
2025.02.25 16:25:16 doubt on the version of the complainant. The cumulative +0530 effect of these statements makes it improbable, that a CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.16 of 24 person who is already undergoing financial stress and borrowing money for his needs will move ahead to advance loan of substantial amount to another person out of the sale proceeds of his ancestral property. 32.8. Further, the fact of selling of ancestral property by the father of complainant and subsequently giving of Rs.2,00,000/- by the father to the complainant is also shrouded in mystery as reflected in the testimony of DW3 who is sister of complainant; the relevant extract of which is reproduced below;
DW3: "No formal partition of my father's property in the village has taken place but my father sold some part of his property. I do not know when this part of the property was sold or to whom it was sold."
*** DW3:"I do not know if my other brother or my sister received any share from the property that my father sold."
*** DW3:"It is correct that the complainant had received his share from the consideration of ancestral property which was sold by my father." 32.9. It is further highlighted that complainant though admitted during cross-examination that he advanced loan of different sums to the accused previously, however he did KAHKASHAN JABIN not mention this fact in his complaint. Relevant extract Digitally signed by KAHKASHAN JABIN from the testimony of complainant/CW1 is reiterated Date: 2025.02.25 16:25:21 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.17 of 24 hereunder:
CW1: "I have extended loan to the accused on prior occasions also. I had extended loan of Rs. 17,500/- at one occasion, and another loan which I extend through cheque for amount of Rs.34,500/- which was duly repaid to me. It is correct that I extended a loan of Rs.30,000/- to the accused, but I cannot say if the same was extended on 06.12.2019."
32.10.Above testimony do affirm that complainant and accused used to lend and borrow money among themselves but the admitted facts also reflect that on previous occasions loan of small amounts were given by the complainant. It is also inconceivable that though the complainant gave loan of Rs. 34,500/- to the accused through cheque, however he gave loan of Rs.2,00,000/- in cash to the accused. Non-disclosure of these loan transactions leads to presumption that complainant deliberately concealed these facts as stating about pervious loan of small amounts would have made his case doubtful.
Presumption is drawn against the complainant under Section 114 Indian Evidence Act,1872 which says "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and Digitally public and private business, in their relation to the facts signed by KAHKASHAN KAHKASHAN JABIN JABIN Date:
2025.02.25 16:25:24 +0530 of the particular case."CC NI ACT 5032/2021
SUNIL VS SUNITA Page No.18 of 24 32.11.Complainant's version is further perforated by the accused by showing contradiction in his testimony and testimony of his sister/DW3. During cross-examination complainant said that he does not know whether his sister knows the accused, though admitting that she also lives nearby in same locality; however, DW3 in her testimony admitted that she knows accused and also admitted that certain monetary transactions happened between her and accused. Relevant extract of DW3 is reproduced below:
DW3:"I know the accused who is my neighbor."
*** DW3"I recognize notebook Ex. DW1/1...Page No. 2,3 and 4 have been prepared in my handwriting by me. I have signed wherever my name Anita is written and accused has signed wherever her name Sunita. I have signed where and when I have received from the accused. I have written the text mentioned at point 'B' at page 2 of Ex. DW1/1and the text at point 'C' on page 5 of Ex. DW1/1. The dates mentioned on page 2 are in serial order and in my handwriting." 32.12.However, the defence disclosed by the accused is also not consistent as pointed by Ld. Counsel for complainant. At the stage of framing of notice under Section 251 Cr.P.C.
accused stated that she issued two security cheques including the cheque in question to the complaint against KAHKASHAN JABIN the advancement of loan of Rs. 34,500/-, however in her Digitally signed by KAHKASHAN JABIN CC NI ACT 5032/2021 Date: 2025.02.25 16:25:28 +0530 SUNIL VS SUNITA Page No.19 of 24 statement recorded under Section 313 Cr.P.C. she stated that cheque in question was issued as security cheque at the time when complainant advanced loan of Rs. 30,000/-. In fact, accused altogether failed to disclose about the fact of previous loan of Rs. 30,000/- in his plea of defence at the stage of framing of notice under Section 251 Cr.P.C. and disclosed it only at the stage of at the stage of recording of statement under section 313 Cr.P.C. However, it needs to be highlighted that complainant has admitted the fact of advancement of above said loans and its due return 32.13.Further, the defence of the accused that due to fracture in complainant's leg, complainant's sister/DW3 used to visit the house of accused for taking back the sum of Rs.30,000/-, which was to be repaid in installments of Rs.300/- per day for 120 days, and DW3 signed against the receipt of money in a notebook Ex. DW1/1 is not tenable as it fails to show any connection with the transaction in hand. Further, complainant already admitted during his cross-examination the fact of advancement of loan of Rs.30,000/- and its due return and there is no dispute regarding that fact which accused is trying to prove through Ex.DW1/1. Secondly, in alleged notebook Ex. DW1/1 nothing is mentioned regarding the fact of advancement of loan of any amount by the KAHKASHAN complainant to accused, neither it bears the signature of JABIN Digitally signed by the complainant on any page, which fact has also been KAHKASHAN JABIN Date: 2025.02.25 16:25:31 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.20 of 24 admitted by the accused during her cross-examination. Moreover, accused has alleged that loan of Rs.30,000/- was advanced to accused on interest basis but nothing is mentioned regarding that aspect also. DW1 has affirmed this fact in her testimony; the relevant extract of which is reproduced hereunder;
DW1: "It is correct that the complainant has not signed any page of Ex. DW1/1. Vol. the complainant never came for collection of money and it was his sister who used to come to collect money on behalf of the complainant. It has not been written anywhere in the notebook Ex. DW1/1 that the complainant gave me money or that I m returning the money which complainant gave me."
*** DW1:"It is correct that it is not written in the notebook Ex.DW1/1 that there was any interest clause including the amount or rate of interest." 32.14.Thirdly, it has been alleged by Ld. Counsel for complainant that in the notebook Ex.DW1/1, transaction pertaining to 'committee' has been mentioned which used to run between accused and DW3 and suggestion was also put to the accused during her cross-examination regarding the same to which she answered in the negative. However, the fact of 'committee transaction' has been KAHKASHAN JABIN affirmed by DW2 during his cross-examination. Relevant Digitally signed by KAHKASHAN JABIN Date: 2025.02.25 16:25:33 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.21 of 24 extract of testimony of DW2 is reproduced below;
DW2: "It is wrong to suggest that the fact mentioned at point A in page 3 in Ex.DW1/1 has not been mentioned about '1300+600 committee me 21/1/2020 clear'(Vol. DW3 Anita has only clarified by writing the aforesaid statement in Hindi and in that Rs. 600/- includes interest amount installment of Rs.300/- of 2 days i.e. 20.01.2020 and 21.01.2020 to the complainant and Rs. 1300/- was paid to Anita for committee which was run by Anita.) "
32.15.Further, the defence regarding the repayment vide Ex.
DW1/1 through DW3 has come on record for the first time at the stage of defence evidence and accused did not mention about this plea of defence either at the stage of framing of notice under Section 251 Cr.P.C or at the stage of recording of statement under Section 313 Cr.P.C. Thus the plea of defence appears to be unreliable in light of discussion above.
33.This is a classic case where the versions of both the parties are contradictory at different stages of the trial and this court has to ascertain as to who has tilted the scales in his favour.
34.There are material contradictions, improvisations, lacunas, and dearth of quintessential details in the statements of the complainant on oath at different stages of the trial as pointed herein and his (hereinbefore) version also does not inspire the KAHKASHAN JABIN confidence of the court. The underlying principle remains that Digitally signed by KAHKASHAN JABIN Date: 2025.02.25 16:25:37 +0530 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.22 of 24 the case of the complainant has to stand on its own legs and if the accused through the material available on record, is able to show that converse is true, he can very well succeed in rebutting the mandatory presumptions.
35.Complainant has vehemently pressed for the conviction of the accused on account of his admissions at the stage of framing of notice under Section 251 Cr.PC. However, it is pertinent to note that out of the total alleged loan amount of Rs.2,00,000/-, only the liability of Rs. 34,500/- was accepted at the stage of framing of notice under Section 251 Cr.P.C., and the liability of Rs.30,000/- was accepted at the stage of recording of statement of the accused under Section 313 Cr.P.C. Interestingly, for both these liabilities complainant has himself admitted that the loan of these two amounts were duly returned by the accused. Thus, the factum of advancement of loan of Rs.2,00,000/- had to be established by the complainant independently after reasonable doubt was thrown by the accused on the version of complainant, qua his source of funds and the factum of advancement of loan in question to the tune of Rs.2,00,000/- to the accused. Even if the defence of the accused is kept aside, the case of the complainant should first stand firmly, but it is not the position in the case at hand. Hence, on the basis of preponderance of probabilities, the accused has created a doubt in the mind of the court regarding the case set up by the complainant. KAHKASHAN JABIN
36.Hence, this court has arrived at an irresistible conclusion that Digitally signed by the accused has been able to rebut the mandatory KAHKASHAN JABIN Date: 2025.02.25 CC NI ACT 5032/2021 16:25:39 +0530 SUNIL VS SUNITA Page No.23 of 24 presumption raised against her. Complainant on the other hand has utterly failed to prove its case beyond reasonable doubt qua the existence of liability of the accused to the tune of amount of the impugned cheque as on the date of its issuance or presentation. Since this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant, accordingly, no offence of dishonour of the impugned cheque under the said Section is made out.
37.It is 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. In the present case, the accused has clearly presented a defence that is more probable than the complainant's story and consequently, the benefit of doubt must go to him.
FINAL ORDER
38.In view of the aforesaid discussion, this court finds the accused Sunita W/o Sh. Anil Kumar Negi not guilty of the offence under Section 138 Negotiable Instruments Act, 1881 Digitally and acquits her accordingly. signed by KAHKASHAN KAHKASHAN JABIN Announced in the open JABIN Date:
2025.02.25 court on this 25.02.2025 16:25:43 +0530 ( Kahakshan Jabin) JMFC(NI Act)Digital Court-3 (South) Saket Courts: New Delhi/25.02.2025 CC NI ACT 5032/2021 SUNIL VS SUNITA Page No.24 of 24