Delhi District Court
Basalingappa vs . Mudibasappa, (2019) 5 Scc 418 : 2019 Scc ... on 13 April, 2022
SWIN THE COURT OF METROPOLITAN MAGISTRATE (NI-03),
CENTRAL, TIS HAZARI COURTS, DELHI
Presided over by: Ms. Isha Singh
Case no. : 526945/2016
Unique Case ID no. : DLCT020056772014
In the matter of :
Sh. Purshottam
S/o Sh. Ram Das
R/o H.No. 288, Block-12
Kalyanpuri, Delhi-110091 ..................COMPLAINANT
Versus
Sh. Anil Kumar
R/o H. No. 333, Krishan Kunj,
Inderpuri, Delhi. ...........................ACCUSED
1. Name of the Complainant : Mr. Purshottam
2. Name of the Accused : Mr. Anil Kumar
3. Offence complained of or proved : Section 138, Negotiable Instruments
Act, 1881
4. Plea of the Accused : Not Guilty
5. Date of Filing : 31.05.2010
6. Date of Reserving Order : 11.04.2022
7. Date of Pronouncement : 13.04.2022
8. Final Order : ACQUITTED
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BRIEF STATEMENT OF REASONS OF DECISION
FACTUAL MATRIX
1. The present complaint was filed by Mr. Purshottam (hereinafter "complainant") against
Mr. Anil Kumar (hereinafter "accused") under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter "NI Act")
2. The substance of allegations, as contained in the complaint, are as follows:
(a) That the accused in discharge of his liability of debts, issued a cheque bearing no.
687081 dated 22.09.2009 for Rs.50,000/- drawn on Syndicate Bank, Maulana Azad
Medical College, Bahadurshah Zafar Marg, New Delhi in favour of the
complainant.
(b) The aforesaid cheque was presented by the complainant for payment in the bank
account of the accused - Syndicate Bank, Maulana Azad Medical College,
Bahadurshah Zafar Marg, New Delhi for its encashment, however the same was
returned as dishonoured vide cheque returning memo dated 18.03.2010 with the
remarks "No Balance".
(c) Thereafter, the complainant sent a legal notice dated 28.03.2010 by way of speed
post. It is the case of the complainant that despite service/deemed service of the
legal demand notice, the accused failed to repay the cheque amount within the
stipulated period and hence, the present complaint was filed before Ld. MM,
Karkardooma Court on 31.05.2010 under section 138 of the NI Act. Thereafter, the
present complaint was refiled before the present court on 27.11.2014 upon finding
that the bank account of the complainant lied within the jurisdiction of Tis Hazari
Courts.
PROCEEDINGS BEFORE THE COURT
3. Pre-summoning evidence was led by the complainant and upon finding a prima facie
case against the accused, he was summoned to face trial vide order dated 08.12.2014
and after his appearance, notice of accusation under Sec. 251, The Code of Criminal
Procedure, 1973 (hereinafter "CrPC") was served upon him on 29.05.2015 to which he
pleaded not guilty and claimed trial. After perusal of the cheque, the accused stated that
the cheque in question bears his signature. As regards the legal demand notice, he stated
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that he did not receive the legal demand notice. At the time of framing of notice under
Sec. 251 CrPC, the accused took the following plea of defence:
"I had taken a loan of Rs.20,000/- from the complainant in the year
2010(probably). The Cheque in question was given for repayment of
loan. I have also repaid Rs.20,000/- in cash to the complainant. I have
no liability towards the complainant."
4. Upon oral permission sought, accused was allowed the opportunity under Sec. 145(2)
NI Act, to cross-examine the complainant vide order dated 29.05.2015.
5. However, at the post-summoning stage, the complainant did not adopt his pre-
summoning evidence and chose not to enter the witness box for the purposes of cross-
examination. Only at the pre-summoning stage, the complainant had examined himself
as CW-1 and tendered his evidence by way of affidavit Ex.CW1/1; cheque bearing no.
687081 dated 22.09.2009 for a sum of Rs. 50,000/- drawn on Syndicate Bank, Maulana
Azad Medical College, Delhi Ex.CW1/A; Deposit slip for cheque bearing no. 687081
dated 22.09.2009 in the sum of Rs.50,000/- into the account bearing no.
90682210006937 on 17.03.2010 Ex.CW1/B; Legal demand notice dated 28.03.2010
Ex.CW1/C; Postal Receipts Ex.CW1/D; UPC Slip Ex. CW1/E; Certificate issued by
Syndicate Bank, Maulana Azad Medical College, Bahadur Shah Zafar Marg, New Delhi
dated 21.04.2012 to the effect that cheque bearing no. 687081 dated 22.09.2009 drawn
by accused in favour of the complainant was dishonoured due to "insufficient funds".
6. Nevertheless, after permission was granted to the accused u/s. 145(2) NI Act to cross-
examine the complainant, the matter was fixed for cross-examination of the complainant
to be held on 16.10.2015. However, due to the failure of the complainant to subject
himself for cross-examination, the right of the complainant to lead complainant
evidence was closed on 23.01.2019.
7. Statement of accused under Section 313 CrPC read with Sec.281 CrPC was recorded on
28.02.2019 wherein he stated that he did not take any loan from the complainant and
that the cheque was not issued for Rs.50,000/-. He stated that he had taken about
Rs.7000 to Rs.8000 only from the complainant and the same was repaid. Although the
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signatures were admitted on the cheque in question, however the accused stated that he
did not fill the details. As regards the legal demand notice, it was stated that the same
was not received as the same was addressed to his father, with whom he did not reside
and despite the legal demand notice also being addressed to his official address, he
stated that he did not receive the same.
8. The accused did not lead any defence evidence and the same was closed vide his
separate statement recorded on 02.09.2019.
9. Thereafter, final arguments were heard in the present case. I have heard the learned
counsels on both sides and given my thoughtful consideration to the material appearing
on record.
10. It has been argued by the Ld. Counsel for the complainant that all ingredients of Sec.
138 NI Act, have been fulfilled in the present case and that the complainant has duly
proved his case. It was argued that accused admitted his signatures on the cheque which
has given rise to presumptions in favour of the complainant. Ld. Counsel for the
complainant also argued that the defence taken by the accused at the time of framing of
notice under Sec.251 CrPC and his statement recorded under Sec.313 CrPC has been
inconsistent. Ld. Counsel submits that the accused has not led any evidence to rebut the
presumption under Sec.118 and Sec.139, NI Act. It was argued that accused failed to
raise the probable defence to disprove the case of complainant. As such, it is prayed that
the accused be punished for the said offence.
11. Ld. Counsel for the accused has argued that the complainant has failed to establish his
case beyond reasonable doubt. Ld. Counsel has submitted that the none of the averments
mentioned in the complaint have been proved as admittedly, the complainant never
entered the witness box and never subjected himself to cross-examination. He also
further argued that the complainant did not place on record any documentary proof in
support of the existence of legally recoverable debt/liability against the accused. It has
been contended that the accused has been denied the opportunity to raise his defence as
the complainant never stood the test of cross-examination and without the same, the
evidence of the complainant led by way of affidavit at the pre-summoning stage, cannot
be read. It has been contended that the accused has been falsely implicated in the present
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matter as there is no legally recoverable debt/liability towards the complainant. As such,
it is prayed that the accused be acquitted.
FINDINGS
12. 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. The constituents elements of an offence
u/s.138 NI Act are well laid out in the section itself and have been explained through
various pronouncements of the superior courts over a period of time. The Hon'ble Apex
Court summed them up again in, Himanshu v. B. Shivamurthy (2019) 3 SCC 797 as
below:
"The first condition is that the cheque ought to have 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. The second condition
is that the payee or the holder in due course of the cheque, as the case may
be, ought to make a demand for the payment of the said amount of money
by giving a notice in writing, to the drawer of the cheque, within thirty
days of the receipt of information by him from the bank regarding the
return of the cheque as unpaid. The third conditions is that the drawer of
such a cheque should have failed to make payment of the said amount of
money to the payee or as the case may be, to the holder in due course of
the cheque within fifteen days of the receipt of the said notice. It is only
upon the satisfaction of all the three conditions mentioned above and
enumerated under the proviso to Section 138 as clauses (a), (b) and (c)
thereof that an offence under Section 138 can be said to have been
committed by the person issuing the cheque."
(emphasis supplied)
13. In the defence raised by the accused u/s 251 CrPC as well as in his statement recorded
u/s 313 read with Section 281 CrPC, it is admitted that the cheque in question bears his
signatures and the accused has denied the receipt of legal notice. This assertion of non-
receipt of legal notice cannot help the accused in escaping liability under section 138
NI Act, especially keeping in mind that the accused entered appearance in the court
pursuant to service upon the same address as was mentioned in the legal demand notice.
It has been settled by the Hon'ble Apex Court in the judgement reported as, C.C. Alavi
Haji v. Palapetty Muhammed, (2007) 6 SCC 555 that an accused who claims that he
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did not receive the legal notice, can, within 15 days of receipt of summons from the
court, make payment of the cheque amount, and an accused who does not make such
payment cannot contend that there was no proper service of notice as required under
Section 138, by ignoring statutory presumption to the contrary under Section 27 of the
General Clauses Act and Section 114 of the Evidence Act.
14. Since the accused has admitted his signatures on the cheque in question, a presumption
shall be raised under section 139 read with section 118 of the NI Act against the accused
that the cheque in question was issued in discharge of a valid debt or liability. In this
regard, the Hon'ble Apex Court, having analysed all the concerned provisions in
Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at
page 432, came down to the following conclusion:
"25. We having noticed the ratio laid down by this Court in the above cases on
Section 118(a) and 139, we now summarise the principles enumerated by this Court
in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of theAct mandates
a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the
onus is on the accused to raise probable defence. The standard of proof for
rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence
led by him or the accused can also rely on the materials submitted by the
complainant in order to raise a probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in
support of his defence. Section 139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support
his defence."
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15. In addition to the above, in Kishan Rao V. Shankargouda, (2018) 8 SCC 165, quoting
Sharma Carpets [Kumar Exports v. Sharma Carpets,(2009) 2 SCC 513], the Hon'ble
Apex Court had held at para 20 as follows:
"The accused may adduce direct evidence to prove that the note in question
was not supported by consideration and that there was no debt or liability to
be discharged by him. However, the Court need not insist in every case that
the accused should disprove the non-existence of consideration and that by
leading direct evidence because the existence of negative evidence is entirely
possible nor contemplated. At the same time it is clear that bare denial of the
passing of the consideration and existence of that, apparently would not serve
the purpose of the accused. Something which is probable has to be brought
on record for getting the burden of proof shifted to the complainant. To
disprove the presumption the accused should bring on record such facts and
circumstances, upon consideration of which the Court may either believe that
the consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the case, act
upon the plea that they did not exist. Apart from adducing direct evidence to
prove that the note in question was not supported by consideration or that he
had not incurred any debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on the complainant."
16. To paraphrase the above, once presumptions u/s 118 and 139 NI Act are raised in
complainant's favour upon admission by the accused of the issuance of the cheques in
question, it is therefore upon the accused to rebut them by adducing evidence. If upon
preponderance of probabilities, the accused is able to do the same, onus once again shifts
back upon the complainant to prove its case beyond reasonable doubt. If the accused is
unable to do so, the complainant is entitled for a decision in his favour. It is pertinent to
note however, that the accused can rebut the presumptions raised against him by
flagging gaps in the complaint's version itself and he is not obliged to separately led
independent defence evidence always. He can show such circumstances to exist, from
the material placed on record by the complainant himself, that there exists a probably
defence in his favour. Considering this, the right of the accused to cross examine the
complaint is of paramount importance because by doing so, he can cast a dent on the
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complainant's narrative to probablise his own defence. Such an opportunity to be
provided to the accused is therefore crucial and non-affording the same, may well
amount to denying the accused to exercise his right to defend himself altogether. Such
a lapse on part of the complainant therefore, would in fact go against the grain of
constitutional jurisprudence that no person can be condemned unheard, as essentially
that is what happens if the complainant does not subject himself to be cross examined
by the accused.
17. In view of the above, the opportunity of cross examination of the complainant assumes
greatest significance.
18. In fact, in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) 4 SCC 46,
right of cross-examination has indeed been held to be one part of the principles of
natural justice. Para 24 of the judgment quotes the observations made by Hon'ble Mr.
Justice Gajendragadkar, speaking for the Constitution Bench in State of M.P.v.
Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623] and are reproduced as
below:
'24. A Constitution Bench of this Court in State of M.P.v Chintaman
Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of natural
justice require that a party must be given the opportunity to adduce all
relevant evidence upon which he relies, and further that, the evidence
examined of the opposite party should be taken in his presence, and that he
should be given the opportunity of cross-examining the witnesses examined
by that party. Not providing the said opportunity to cross-examine witnesses,
would violate the principal of natural justice.'
19. In the present case, the complainant, at the post-summoning stage did not even step once
into the witness box and never stood the test of cross-examination. It is a settled position
of law that when a party to the suit does not appear into the witness box and states his
own case on oath and does not offer himself to be cross examined by the other side, a
presumption would arise that the case set up by him is not correct. (Vidhyadhar vs.
Manikrao, AIR 1999 SC 1441).
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20. Similar views were expressed by Hon'ble Mr.Justice K.K.Sasidharan, as he then was, in
the case of D.F.Philips vs. Dhamayanthi Kailasam and Others, 2009 (4) TLNJ 217 :
"26. ...In ordinary circumstances, evidence not tested by cross examination
has no probative value. There should be an opportunity to the opposite party
to cross examine the witness..."
21. The case projected by the complainant in his complaint is based on introduction of facts
through plaint averments. It can be controverted only through cross examination and the
veracity of the evidence can be tested by the accused. Complainant being the dominus
litis spearheads the litigation. Onus is more on him to prove the case, unless the burden
is shifted to opposite side. In that process, the complainant must be ready and prepared
and must show that he is always available and willing to complete the evidence. The
evidence of the complainant, as such is very crucial to prove his case. Such evidence
shall be complete and it becomes complete only upon completion of cross examination
by the accused.
22. In the present case, request to cross-examine the complainant under Sec.145(2) NI Act
was allowed orally and the matter was fixed for cross-examination to be held on
16.10.2015. However, due to the failure of the complainant to subject himself for cross-
examination, the right of the complainant to lead complainant evidence was closed on
23.01.2019. The series of events leading to closure of the right of the complainant to
lead complainant evidence is noteworthy. After the matter was fixed for cross-
examination of the complainant on 16.10.2015, issue of jurisdiction was agitated by the
accused which was finally settled and decided on 27.08.2016. Thereafter, adjournments
sought by the accused on 19.01.2017 and 27.04.2017 were allowed with payment of
cost to the complainant and the matter was relisted for cross-examination of
complainant. Thereafter, on 25.09.2017 when the matter was called for complainant
evidence, the complainant expressed inability to subject himself to cross-examination
as his counsel was not available and on the same day, parties were referred for
mediation, where matter could not be settled due to which parties were asked to appear
before the Court. Thereafter, on two subsequent dates i.e., on 03.08.2018 and
11.10.2018, the complainant failed to appear and the matter was adjourned to
10.12.2018 for complainant evidence when the complainant took adjournment as his
counsel was not available, resultantly last opportunity was granted to both parties for
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concluding cross-examination of complainant positively on 23.01.2019. Finally, on
23.01.2019, complainant took adjournment again as his counsel was not present, so
considering the fact that despite last opportunity, complainant chose not to subject
himself to cross-examination again, therefore the right of the complainant to lead
complainant evidence was closed.
23. The conduct of the complainant of failure to subject himself to cross-examination
amounts to denial of opportunity to the accused to disprove the case of the complainant
and render the evidence of the complainant as incomplete. The law is trite that
incomplete evidence of a witness who has failed to subject himself for cross
examination shall not be retained on record (Rajendran Vs A. Swaminathan
C.R.P.(PD)(MD)No.246 of 2009 and M.P.(MD)No.1 of 2009 dated 1.12.2010 and
Antony Matilda vs. Vairamuthu in C.R.P.(PD) (MD) No.1132/2017 dated
08.09.2017).
24. The evidence of the complainant in the above case, not tested by cross examination on
account of his non-appearance, does not even have the probative value, for, the
incompleteness is attributable to the complainant himself. Had the complainant been
keen to complete his evidence, he would have offered himself for cross examination by
re-opening and recalling his evidence.
25. Considering the above, this court is constrained to note that in absence of the occasion
whereupon the complainant could be cross examined by the accused, the rights of the
accused were seriously prejudiced since the complainant himself did not subject for
cross-examination, which has prevented the accused from bringing out a credible
defence in his favour. The same in fact, raises an adverse inference against the case set
up by the complainant himself.
26. Further, even the case of the complainant is unsupported by any proof or basis of any
legally enforceable liability to the extent of Rs.50,000/-. The Complaint is shorn of
details of how the liability to the extent of Rs.50,000/- is made out against the accused.
There is absolutely no averment as to any loan or any other monetary transaction
between the parties, either in the complaint or in the evidence by way of affidavit or the
legal demand notice. The above deficiencies in the complainant's case go on to shake
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the veracity of the claim in the complaint. The law is trite that serious lacunae and
defects in the evidence of the complainant strike at the root of the complaint under
Sec.138 NI Act {John K. Abraham v. Simon C. Abraham & Anr. 206 (2014) DLT 234
(SC)}.
27. Similar views were expressed in Vijay v. Laxman and Anr. (2013) 3 SCC 86, wherein
the Hon'ble Supreme Court observed that:
"the absence of any details of the date on which the loan was advanced as
also the absence of any documentary or other evidence to show that any
such loan transaction had indeed taken place between the parties is a
significant circumstance."
28. The Hon'ble Delhi High Court in the case of Sanjay Verma v. Gopal Halwai, 2019
SCC Online Del 7572 upheld the judgement of acquittal taking into account the fact
that no date of extending the loan or rate of interest at which such loan was extended,
was mentioned in the complaint and neither was any document executed as regards the
loan nor any date as to the repayment of loan was mentioned in the complaint.
29. In light of the discussion as above, the conduct of the complainant has resulted in
shifting the burden of proof back upon him, which it in turn, not been discharged beyond
reasonable doubt. Neither has the complainant entered the witness box to subject
himself to cross-examination nor have the averments in the complaint been supported
with proper proof to prove the existence of a legally recoverable debt.
CONCLUSION
30. As a result, the complainant has failed to prove the offence beyond reasonable doubt
and as such, the complaint of the complainant is dismissed and the accused Anil Kumar
is hereby acquitted of the offence of Section 138 of the Negotiable Instruments Act,
ISHA
1881. Digitally signed
by ISHA SINGH
SINGH Date: 2022.04.13
ORDER:ACQUITTED 16:07:50 +05'30' (Isha Singh) Announced in open court MM / NI Act -03 / Central on 13.04.2022 Delhi /13.04.2022 Note: This judgement contains 11 pages and each page has been signed by me.
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