Delhi District Court
Priya Aggarwal vs Naresh Kumar on 20 June, 2024
IN THE COURT OF SHRADDHA TRIPATHI, METROPOLITAN
MAGISTRATE - 02, N.I.ACT, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CT Cases 7736/2017
PRIYA AGGARWAL Vs. NARESH KUMAR
A. CNR No. DLST02-014293-2017
B. Date of Institution 19.07.2017
C. Date of commission of offence 23.06.2017
D. Name of complainant Priya Aggarwal
W/o Shri Hanuman Aggarwal
R/o A-26, Block A, Krishna Park,
Khanpur, New Delhi
E. Name of the accused, his Naresh Kumar
parentage and address
S/o Sh. Radhey Shyam
R/o A-148 Near State Bank of India
Road, JJ Tigri, New Delhi-110062
Also at:-
C-1241, Tigri, New Delhi
F. Offence complained of Under Section 138 Negotiable
Instruments Act, 1881
G. Plea of the accused Pleaded not guilty and claimed trail
H. Judgment reserved on 30.05.2024
I. Date of judgment 20.06.2024
J. Final Order Acquittal
CT Cases7736/2017 Page 1 of 19
PRIYA AGGARWAL Vs. NARESH KUMAR
Factual Background
1.These proceedings have been initiated by the complainant under section 138 of Negotiable Instruments Act, 1882 (hereinafter 'NI Act'). It is the case of complainant that the accused approached her to sell two properties of the following description: 1) C-1341, Tigri, New Delhi and 2) Gupta Juice Corner, Shop No 1, NDMC Market, Yusuf Sarai, New Delhi for a total sale consideration of Rs 40,00,000/-. In lieu of this, the complainant paid a sum of Rs 19,00,000/- to the accused in cash as bayana/advance payment. However, as averred by the complainant, after a month the accused receded from the transaction. Upon complainant's persistent demands to return her bayana/advance payment, the accused issued two cheques which are the cheques in question of the following description which upon presentation got dishonoured vide return memo dated 08.05.2017.
Sr. Cheque No. and Cheque amount Reason for dishonour
No date
1. 285832 dated 2,00,000/- Payment stopped by drawer
28.03.2017
2. 285833 dated 2,00,000/- Payment stopped by drawer
28.04.2017
2. Upon receiving the knowledge of dishonour of the above cheques, the complainant served a legal demand notice dated 07.06.2017 upon the accused requiring him to make the necessary payment. However, upon the failure of the accused to pay the cheque amount within 15 days, the present proceedings under section 138 NI Act were initiated by the complainant against the accused.
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3. To fortify her case, the complainant tendered her evidence by way of affidavit which is Ex CW 1/1 and relied upon the following documentary evidences:
Sr. No Document Exhibit Number
1. Agreement cum bayana receipt Ex CW1/A
2. Cheque bearing no. 285832 Ex CW1/C
dated 28.03.2017
3. Cheque bearing no. 285833 Ex CW1/D
dated 28.04.2017
4. Return memo dated 08.05.2017 Ex CW1/E
5. Return memo dated 08.05.2017 Ex CW1/F
6. Copy of legal notice Ex CW1/G
7. Postal Receipt Ex CW1/H
8. Tracking Report Ex CW1/I
9. Complaint Ex CW1/J
10. Bank Statement of complainant Mark A
Case Proceedings
4. Upon the appearance of accused, notice of accusation under section 251 of the Code of Criminal Procedure, 1973 (hereinafter 'CrPC') was framed on 27.09.2017 and substance of allegations against the accused was accordingly explained to him to which the accused pleaded not guilty and claimed trial. The same was duly recorded alongwith his plea of defence.
5. Thereafter, upon permitting the accused to cross-examine CW1 under section 145 (2), NI Act, however, upon repeated adjournments being sought by CT Cases7736/2017 Page 3 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR the accused for the complainant's cross-examination, his right was closed vide order dated 22.12.2022.
6. On 30.01.2023, the Statement of Accused was recorded as per the terms of Sec 313 CrPC r/w Sec 281 CrPC explaining the incriminating substances, that appear in evidence against him. The accused explained that he never had any property transaction with the complainant but occasional transactions with her husband namely Hanuman Aggarwal would take place for Rs. 20,000/- to 25,000/-. He states that the signatures on the cheque in question are his but that on Ex CW1/A are not. The accused also explained that whenever he took money from the husband of the complainant, he would duly return the same. Post the recording of statement of accused, the matter was fixed for leading Defence Evidence. However, prior to leading his evidence, the accused chose to move an application under section 311 CrPC for cross-examination of complainant which was allowed and CW1 was duly cross-examined on 24.05.2023. Thereafter, the accused moved an application under section 315 CrPC to examine himself as witness which was allowed on 06.06.2023. Further, a list of additional witnesses was also moved by the accused and arguments of both the parties to delineate the relevance of witnesses were heard & considered, in pursuance of which he was permitted to examine witness at serial no. 1 namely Vijay Kumar and witnesses at serial no. 2 & 3 were dropped. Vijay Kumar appeared as DW 1 and was examined, cross-examined and discharged and Defence Evidence was closed on 25.07.2023. The matter was later fixed for final arguments.
Submissions on behalf of Complainant
7. Ld counsel for the complainant submitted that the cheques in question were handed over to the complainant in return of earnest money advanced by CT Cases7736/2017 Page 4 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR the complainant relating to sale of two immovable properties. The same were dishonoured for reasons, "Payment stopped by drawer" and despite service of legal notice, the accused failed to return the cheque amount and the complainant was compelled to initiate the present proceedings against the accused.
8. Ld counsel also submitted that the accused had admitted his signatures on the cheque in question and on the bayana receipt in his statement alongwith admitting the fact that he used to have occasional transactions with the complainant's husband. It has also been submitted by Ld counsel that in lieu of the presumptions of Sec 139, NI Act in favour of the complainant and the fact that the same remain unrebutted, all the ingredients under section 138 NI Act have been duly met and the liability of the accused has been established and thus he be convicted of the offence.
9. Ld counsel for the complainant further submitted that the accused had also entered into a mediation settlement between the parties which tantamounts to admission of his liability towards the complainant.
10 To fortify his submissions Ld. Counsel for the complainant has relied upon "Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 (1) JCC (NI) 50; K Bhaskaran v. Sankaran Bala, 1999 (7) SCC 510 and Basalingappa v. Mudidasappa, AIR 2019 SC 1983".
Submissions on behalf of Accused
11. Ld counsel for the accused has submitted that Ex CW1/A is false and fabricated.
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12. He submitted that the complainant has stated that she has no knowledge of the transaction and also that the entire transaction has occurred between the accused and her husband.
13. He has submitted that the entire amount of Rs 19,00,000/- is stated to have been paid in cash however she has failed to prove her source of funds. Ld counsel submitted that the properties alleged by the complainant to have been proposed for sale by the accused are not even in the name of the accused which destroys the possibility of purchase of property and the complainant has never attempted to obtain any property papers as well.
14. Ld counsel submitted that the complainant claims to have been in possession of two more cheques of Rs. 12,00,000/- and Rs 3,00,000/-, however the same have not been produced before the court by her.
15. Ld counsel submitted that no witness to Ex CW1/A has been examined by the complainant and that Ex CW CW1/A is not even registered and thus the same is void and inadmissible in evidence.
16. Ld counsel further submitted that the cheques in question were given for the purposes of committee run by the husband of complainant and therefore there is no legal liability of the accused against the complainant. The fact of committee business has been admitted by the complainant herself.
17. Ld counsel has also submitted that the accused had entered into the mediation settlement due to force and not voluntarily.
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18. Ld counsel for the accused submitted that the accused has successfully rebutted the presumption under section 139 NI Act to the extent of preponderance of probabilities. Ld counsel submitted that due to insufficiency of evidences of the complainant, she has failed to prove the existence of a legally enforceable debt and thus the accused be acquitted.
Analysis and findings
19. Learned counsels of both the parties have been heard at length and documents on record have been perused.
20. Section 138, NI Act was introduced with the objective of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The provision intends to discourage people from not honouring their commitments by way of payment through cheques. To attract liability under section 138, NI Act, the following ingredients are required to be fulfilled:
First Ingredient: The cheque was drawn by a person 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 and the same be 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;
Second Ingredient: The cheque was drawn by the drawer for discharge, in whole or in part, of any legally enforceable debt or other liability;
Third Ingredient: The 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.
Fourth Ingredient: A demand of the said amount has been made by the payee or the holder in due course of the cheque by CT Cases7736/2017 Page 7 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR 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 dishonour of cheque.
Fifth Ingredient: 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.
21. The fulfilment of first, third, fourth and fifth ingredient is not disputed. The cheques dated 28.03.2017 and 28.04.2017 were presented for honour within the stipulated time and the same were returned as dishonoured vide return memos dated 08.05.2017 for reasons "Payment stopped by drawer". The said reason for dishonour as held by the Hon'ble Apex Court in "Modi Cements Ltd. Vs. Kuchil Kumar Nandi (1998) 3 S.C.C. 249" is duly covered under section 138 NI Act. Upon receipt of the same, the complainant served a legal demand notice dated 07.06.2017 within 30 days and upon the failure of the accused to make good the payment within 15 days, the complainant instituted the present proceedings within the stipulated time. Thus, the fact of fulfilment of first, third, fourth and fifth ingredient is decided in favour of the complainant and against the accused.
Defence of Accused: Non-existence of a legally recoverable debt
22. What remains for judicial scrutiny before this court is whether there existed a legally recoverable debt. The accused contests the case on this second ingredient.
23. It is pertinent to note that once signatures on the cheque are admitted by the accused presumptions under Sec 118 and Sec 139 NI Act take the forefront. The presumption under Sec 118 and Sec 139 NI Act relate to the fact that the cheque in question was issued in lieu of consideration and for a legally CT Cases7736/2017 Page 8 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR recoverable debt/liability. The stipulated provisions incorporate the word 'shall', thereby making the presumption a mandatory presumption. However, loading the provision with the phrase "unless the contrary is proved" clarifies that albeit the presumption is a mandatory presumption, it is rebuttable and the onus to rebut the presumption lies upon the accused.
24. Regarding the strength and nature of presumption raised under section 139 NI Act, it is worthwhile to peruse the ruling of the Hon'ble Apex Court in "Rangappa vs Sri Mohan (2011 (1) SCC (CRI) 184)" wherein it ruled:
"As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As CT Cases7736/2017 Page 9 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
25. Thus, it is a settled legal position that in order to rebut the statutory presumption under section 118 and Sec 139 NI Act, the accused ought to take the responsibility on his shoulders and clear himself of the cloud of legal liability cast upon him by the complainant to the extent of preponderance of probabilities. The accused can choose to do so either by cross-examining the complainant and complainant witnesses or by leading his defence evidence or both. The instant case is one where the accused has adopted both the avenues to establish his innocence.
26. The defence of the accused that there is no legally recoverable debt stands on two limbs: First, that the cheque in question was issued for the purposes of a committee run by the husband of complainant namely Hanuman Aggarwal and not in lieu of return of any bayana/advance payment and secondly, that the bayana/advance receipt, i.e. Ex CW1/A is a false and fabricated document and no such property transaction ever took place between the complainant, complainant's husband and the accused.
27. Examining the first limb of his defence, the accused alleges that the cheques in question were given as a security cheques in lieu of a committee run by the husband of the complainant. During her cross-examination, the complainant has admitted that her husband runs a committee business however nothing has come on record which establishes that the cheques in question has any relation with the committee business run by complainant's husband. Albeit, the accused while deposing before this court asserts that the cheques in question CT Cases7736/2017 Page 10 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR were issued for the purposes of the aforesaid committee to the husband of the complainant, no other proof of the same has been placed on record to affirm his claim. Even when DW 2 stepped into the witness box, he testified that two signed cheques and one blank signed paper was given by the accused to the husband of complainant in his presence but he is unaware of the purposes for which the same were handed over. Nothing on record establishes a link between the said committee business and two cheques in question. Thus, the accused has failed to prove the first limb of his case, i.e. the cheque in question was issued for the purposes of the committee.
28. Adverting to the second limb of his argument that the bayana receipt is false and fabricated and no transaction pertaining to the properties has ever taken place. The burden to prove the same lies upon the accused as he alleges this fact. The accused categorically states that he has not entered into any transaction pertaining to the properties as claimed by the complainant and also that those are his joint family properties which he has no authority to sell. The accused has admitted his signatures on the cheque at all stages of the proceedings right from notice framing, followed by his statement as well as at the defence evidence stage. The accused has also admitted his signature on Ex CW1/A during his deposition as DW 1 but states that he had given a blank signed paper as security for the purposes of committee business. The contention of Ld counsel for the accused that Ex CW1/A ought to be registered falls flat on the ground as U/Sec 17 of the Registration Act, 1908 only those instruments that create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, in any immovable property ought to be registered and Ex CW1/A is a mere bayana receipt, i.e. an acknowledgement of payment of earnest money and by itself does not transfer any right, title and interest and CT Cases7736/2017 Page 11 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR does not require any registration. To establish his innocence, the accused subjected the complainant to cross-examination which has revealed crucial facts in the matter.
29. However, prior to that, attention must be drawn to Ex CW1/A which is the bayana receipt which reads as:
"I, Naresh Kumar S/O Radhey Shyam R/O A-148, Near State Bank of India JJ Tigri, New Delhi receipt a sum of Rs, 19,00,000/- (Nineteen lac only) out of total sale consideration of Rs. 40,00,000/- of Property No- C-1341 Tigri, New Delhi and one shop i.e. Shop No-1, NDMC Market, situated at Yusuf Sarai, New Delhi from Priya Aggarwal W/O Shri Hanuman Aggarwal R/O A-26, Block A, Krishna Park, Khanpur, New Delhi. Remaining payment i.e. 21,00,000/- may be pay within 1 month."
30. In the same breath, para 4 of the evidence by way of affidavit must be referred to wherein the complainant has deposed:
"On 24.04.2015 the husband of the deponent had withdraw the cash from his account and had paid a sum of Rs. 19,00,000/- (Nineteen lac only) as a bayana/advance payment of above said properties to the accused."
Similar averment has been raised by the complainant in her complaint.
31. During her cross-examination, the complainant stated:
"I and my husband advanced a sum of Rs 19 lakhs to the accused."
32. Glaring discrepancies have surfaced in the above reproduced versions of the complainant. It is categoric to note that the same complainant has three different versions at three different instances regarding the same transaction and it is this transaction upon which she relies to establish a legally enforceable debt CT Cases7736/2017 Page 12 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR against the accused. It is an averment in para 3 of the complainant and deposition in para 4 of the evidence by way of affidavit in Ex CW 1/1, that the amount of Rs 19,00,000/- was paid by the complainant's husband to the accused in cash. In contrast to this if Ex CW 1/A, i.e. the bayana receipt is carefully read, it provides that the payment of Rs. 19,00,000/- has been made by the complainant namely, Priya Aggarwal herself. By the time, the complainant is subjected to cross-examination, she has a completely different version to place before the court that the payment of Rs. 19,00,000/- was made by her husband and herself in different transactions and the payment was made partly in cash and partly through direct transfer in the bank account of the accused. Material discrepancies on the most crucial fact arise which remain unexplained/unjustified by the complainant. The fact of payment of Rs. 19,00,000/- forms the foundation of the complainant's case and due to the cracks formed by the above noted material discrepancies, the foundation of the case falls weak.
33. The complainant further goes on to depose in Ex CW 1/A that, "...the deponent had entered in an agreement cum Bayana/receipt and signed the same. The agreement cum Bayana /receipt is Ex CW1/A." However, if Ex CW1/A is perused, there is no signature of the complainant on the same and the deposition of the complainant is outrightly contradicted by the documentary evidence of Ex CW1/A.
34. Cross-examination of CW1 i.e. the complainant herself, targets at certain other crucial areas as well. Upon being quizzed regarding the perusal of property documents, the complainant has answered that she has not perused the same herself and it could be that her husband has seen them. Thus, lack of due diligence of the complainant comes to the forefront and the fact that emerges for CT Cases7736/2017 Page 13 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR consideration is whether a reasonable person who is entering into a transaction of two properties for a huge amount of Rs. 40,00,000/- would turn a blind eye towards the most important aspect of property transaction i.e. the confirmation of title of the seller of property. Even if the deposition of complainant is believed to be true, the second issue that arises for consideration is that upon entering into such a hefty transaction would she be unaware of the fact that her husband has perused the property documents till date, more so when she has instituted an entire proceeding against the accused relying on this transaction. Even if the complainant is given a benefit of her version, it is her duty to have been able to justify through her diligence that the transaction which forms the backbone of her case has actually taken place. From the perspective of a reasonable person, the court is of the opinion that it is improbable that had there been an actual property transaction, the complainant would have remained entirely clueless towards the details of property documents which form the premise of her complaint.
35. Another poignant discrepancy that catches the sight is regarding the mode of payment. In para 4 of Ex CW1/1, the complainant deposes that the payment of Rs 19,00,000/- was made by her husband in cash. By the time she is subjected to the test of cross-examination, a slight divergence on this point is taken by her wherein she states, "Payment was given to the accused in separate transactions (some was already with him, Rs. 5 lacs were paid on the said day). He had asked for more cash as he required money. Some amount was transferred Rs. 1,00,000/- were transferred to the account of the accused." The reason for divergence regarding the mode of payment remains unexplained throughout the proceedings.
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36. To establish the factum of payment, the complainant has also placed on record the Bank Account statement of her husband namely Hanuman Prasad Aggarwal maintained with Kotak Mahindra Bank bearing A/C No 2211206943 which is Mark A. Firstly, the said bank account statement is that of the husband of the complainant and does not directly establish the liability of the accused against the complainant. Secondly, the bank account statement is a print out of the original information contained in the 'computer system' or 'computer network' of the concerned bank and thus is a reproduction of an electronic record. The Hon'ble SC has clarified in "Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantayal, (2020) 7 SCC 1", that electronic evidence shall be admissible in evidence only when accompanied with a certificate U/Sec 65B, Indian Evidence Act, 1872 (hereinafter 'IEA'). The relevant paragraph from the ruling is reproduced below:
"If the original digital device in which original information is first stored is physically produced in court with its owner/ operator stepping into the witness box, no certificate under Section 65-B(4) is necessary as the original document itself stands is produced in the court, but if the original digital device in which original information is first stored is part of a "computer system" or "computer network" incapable of being physically produced before the court, the only way of proving the said information is in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4)."
37. In the present case also, the bank account statement should have been accompanied with a Sec 65 B, IEA certificate for it to be read in evidence. Since, such is not the case, the bank account statement (Mark A) is inadmissible in evidence and cannot be considered for any purposes whatsoever.
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38. Pertaining to the factum of execution of bayana receipt, cross- examination of CW 1 must again be resorted to wherein she has stated that Ex CW1/A was not written by her and that it might have been written by her husband. She has also stated that signatures on CW1/A were put by the accused in her presence and her husband Hanuman Aggarwal and one Pankaj was also present at the relevant time. In conjunction to this, it must be noted that the accused has admitted his signatures on the same, however he remains firm on his contention that he gave a blank signed paper to the husband of complainant in lieu of a committee run by him as security. It is his contention that Ex CW1/A is a false and fabricated document. To affirm his stand, DW 2 namely Vijay Kumar has also deposed that he accompanied the accused to the office of complainant's husband wherein the accused gave two blank signed cheques and a blank signed paper. The complainant has not examined any witness, even her husband to support her testimony. The complainant has stated in her testimony that during the execution of Bayana receipt her husband namely Hanuman Aggarwal as well as one Pankaj was also present. Their names also appear as witness in Ex CW1/A (Bayana Receipt). However, none of them has been examined to establish the fact of payment, mode of payment, fact of transaction regarding the two properties as averred in the complaint and corroborate the testimony of the complainant. The said corroboration was required as her testimony does not remain unimpeached for reasons stated above and Ex CW1/A is not registered. Thus, a perusal of the testimony of CW1, DW1 and DW2 casts a serious doubt on the execution and credibility of Ex CW1/A. It is re-iterated that the present transaction is a property transaction involving a sale consideration of Rs 40,00,000/- and it is highly improbable that such broad details about the same have missed the sight of complainant this entire time.
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39. The complainant has also stated in her cross-examination that the accused had issued two other cheques of Rs 3,00,000/- and Rs 12,00,000/- in the name of her husband which are still in her possession however no criminal proceedings under Section138 NI Act or a civil recovery suit has been instituted by her despite the fact that these two cheques as stated to have been issued cover a substantial part of debt of Rs 19,00,000/- as alleged by the complainant. And the cheques in question pertain to Rs 4,00,000/- only. This casts a serious doubt upon the existence of liability upon the accused of Rs 19,00,000/-.
40. Thus, what evinces from three different instances as stated above is that the complainant has laid before this court three different versions regarding the payment of Rs 19,00,000/-. The three versions remain unsupported by any cogent evidence proving the factum of payment. Instead, by placing before this court, three different versions, the deposition of the complainant emerges as self-destructive altogether.
41. It is apposite to mention the observation of Hon'ble SC in "Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54":
"45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section 139 should be delicately CT Cases7736/2017 Page 17 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
42. It can be deduced that the presumption as well as the burden of proof of the accused is to be delicately balanced and the balancing scale, undoubtedly must rest on the principles of reasonableness, non-arbitrariness, justice and equity. The accused in order to discharge his burden of proof subjected the complainant to cross-examination and in doing so has punched multiple holes in the complainants' case. By doing so, a serious doubt is cast upon the execution of Ex CW1/A and the factum of payment by the complainant and thus the accused has successfully established his defence to the extent of preponderance of probabilities that Ex CW1/A is false and fabricated.
43. To establish the legal liability of the accused, the complainant also relies on the fact that the accused had entered into a settlement at the mediation centre and the same was settled on 29.01.2018. However, later due to stark difference in the amount claimed to be due between the parties, the complainant expressed her desire to proceed on merits and the mediation settlement was accordingly revoked vide order dated 06.09.2022. It is the contention of the accused that he entered into a mediation settlement due to force. Be that as it may, since the matter proceeded on merits, the mediation settlement stood revoked forthwith and the same has no bearing upon the merits of the case. Moreover, conversations, concessions that took place in the mediation proceedings were private and held between the parties and the mediator. Liability cannot be established on the basis of negotiations that occurred during mediation. Therefore, the fact that the accused entered into a mediation settlement does not CT Cases7736/2017 Page 18 of 19 PRIYA AGGARWAL Vs. NARESH KUMAR imply an admission of his liability and shall in no case supplement the complainant's case.
44. In lieu of the above observation, the court is of the opinion that the fact of fulfilment of the second ingredient is decided in favour of the accused and against the complainant.
45. Thus, accused has been able to successfully rebut the presumption of law and discharge the burden of proof by raising a probable defence that the cheque in question was not issued in discharge of his liability as the lending of Rs. 19,00,000/- by complainant and execution of bayana receipt, i.e. Ex CW1/A has not been proved.
Conclusion
46. All the legal requirements constituting an offence under Section 138 NI Act are cumulative in nature. As the second legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused Naresh Kumar is hereby held 'not guilty' and consequently acquitted of the offence under Section 138 NI Act.
47. This judgment contains 19 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
48. Let a copy of the judgment be uploaded on the official website of District Courts, Saket, forthwith.
Announced in open court
on 20th June, 2024 (SHRADDHA TRIPATHI)
MM-02/NI ACT(S) DISTRICT
SAKET/NEW DELHI/20.06.2024
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PRIYA AGGARWAL Vs. NARESH KUMAR