Delhi District Court
Shri Tej Gangwar vs Mrs. Bharti on 2 June, 2023
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC NO. 7537/2018
CNR No. DLSW02009629/2018
SHRI TEJ GANGWAR VS MRS. BHARTI
P.S JANAK PURI
s.no
1 Name and address of the Sh. Tej Gangwar S/o Sh. Mewa
complainant Ram Gangwar, R/o RZ-96-A,
Vashistha Park, Gali No. 25,
Pankha Road, New Delhi-110046.
2 Name and address of accused .. 1. Mrs Bharti w/o Sh. Shanker R/o
RZ-62,Vashistha Park, Pankha
Road, New Delhi -110046
3 Name and address of accused 2. Sh. Ashok Kumar S/o sh.
persons Deleated vide order Suresh Baboo R/o RZ-B-4/215, J
dated 24.02.2015 Block, West Sagarpur, New Delhi
3. Sh. Girdhari @ Banti s/o Sh.
Bhagwan Dass R/o RZ-62, Gali
No.24 Vasahistha Park, Pankha
Road, New Delhi -110046
4 Offence complained of u/s 138 of NI Act
CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 1 / 28
2
5 Plea of accused Pleaded not guilty.
6 Date of institution 22.04.2014
7 Final Order Acquittal
8 Date of such order 02.06.2023
JUDGMENT
INTRODUCTION
1. Initially, the present case was filed by complainant Sh. Tej Gangwar against three accused persons namely Mrs. Bharti W/o Sh. Shanker as accused no. 1 and two other person Sh. Ashok Kumar and Sh. Girdhari @ Banti as accused no.2 and 3 for offence u/s 138 of Negotiable Instrument Act,1881. Later on vide order dt. 24.2. 2015 name of accused no.2 Ashok Kumar and sh. Girdhari @ Banti as accused no. 3 were deleated from array of parties, on the statement of the complainant. Thus, the trial proceeded against present accused namely Mrs. Bharti ( herein called as accused).
FACTUAL MATRIX OF THE CASE
2. In brief, as per averments made in complaint are that the complainant wasdoing his business for gain with accused no. 2 and 3 as they ere running partnership firm for doing the work of building construction, CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 2 / 28 3 collaboration etc under the name and style of M/S ABS Groups located at RZ-24, Pankha Road, New Delhi -110046. The complainant has been invest his money in such business for taking profit through accused no.2. Vide mutual agreement 3.9.2013 executed between accused no.2 and 3 both the accused agreed to repay the amount towards discharge of their liabilities and Rs.7000/- per month towards profit/interest ( exclusively) since 3.9.2013 to 28.2.2014 and also gave a post dated cheque bearing no. 656897 dated 28.2.2014 for a sum of Rs.6,19,000/- drawn on State bank of Patiala, Janak Puri, C-3 Cmmunity Centre, New Delhi which was issued in the name of accused no. 1 i.e Bhabi of accused no. 3 on behalf of accused no. 2 and 3 which on presentation by the complainant, it was dishonoured with remarks of "Account Closed" vide returning memo dated 3.3.2014. Thereafter, complainant sent a legal demand notice dated 27.3.2014 but accused failed to pay the cheque amount. Thus, the present complaint case filed.
Pre-summoning evidence.
3. On 28.4.2014 complainant tendered his pre-summoning evidence by way of affidavit as Ex CW1/1 relying on supporting documents ex CW1/A to Ex. CW1/G. Thereafter, the complainant examined CW2 Sh. Abhishek Gupta official of PNB bank Nangal Raya who had brought statement of account of complainant and proved cheque returning memo as Ex. CW2/A of dishonour cheque no. 656897. Thereafter, complainant closed his pre-summoning evidence.
CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 3 / 28 4 Summoning order
4. Considering pre-summoning evidence, documents and statement of the complainant name of accused no.2 and 3 deleted from array of parties and accused no.1 was summoned to face trial u/s 138 of Negotiable Instrument Act. ( herein after called as NI Act) FRAMING OF NOTICE.
5. On 06.09.2016, notice u/s 251 cr.p.c was framed to which she pleaded not guilty and claimed trial. In defence, she stated that she has no legal liability towards the complanant she did not issue any cheque to the complainant . Further stated that she does not know how the cheque in question came in possession of the complainant. The cheque in question also does not bear her signature nor other particulars are in her handwriting. The said cheque has been misused by the complainant. She also denied having received any legal notice.
6. On 15.2.2017, application u/s 145 (2) NI Act was allowed and matter was listed for cross examination of complainant.
COMPLAINANT EVIDENCE.
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7. On 21.4.2015 complanant adopted her pre-summoning evidnce and documents which he relied on and there after cross- examined at length on 7.7.2018 & on 2.3.2019.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE.
8. On 20.12.2019 Accused was examined u/s 313 cr.p.c. In reply to the question, accused took consistent plea stating that she did not issue any cheque to the complainant and she has no idea how the cheque reached to the complanant. She has not received any legal notice nor cheque in question bears her signature and she did not fill any other particular on the cheque in queston. The accused opted to lead defence evidence.
9. Accused examined herself as DW1 on 20.7.2022 and reiterated her defence as taken in reply to notice u/s 251 cr.p.c and statement u/s 313 cr.p.c. In addition to that stated that she is a house wife and do not know the complainant. She came to know about the present false case when her mother-in-law handedover to her summon of the court on 17.7. 2015. She do not even know whether the cheque in question belongs to her account or not and her husband only used to look after her bank account.
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10. During cross examination accused stated that her husband has two brothers namely Sh. Suresh Kumar ( now deceased) and Sh. Girdhari @ Bunty and four sisters. Her two brother in law also resided in same property i.e RZ 62, Gali no.24, Vashistha Park till 2016 and after 2016, she alongwith her husband shifted on second floor of same property. Her husband is a carpainter since she married. She denied all the suggestion put to her by ld. Counsel for complainant. She do not now about any firm in the name of ABS Group form by her husband in partnership with Girdhari @ Bunty and Ashok Kumar. Further testified that she used to sign in English and as such, she signed all the documents of her bank account in English. She again stated that she do not know if cheque in question belongs to her account which does not bear her signature. She also denied the suggestion that signature on notice u/s 251 Cr.P.C , statement u/s 313 cr.p.c and on the cheque in question are same. However, she admitted address mentioned on legal demand notice Ex. CW1/D is her correct address. She also denied document / agreement Ex. CW1/A. She also testified that she did not file any complaint after came to know about the dishonour of cheque after receiving notice from the court. She denied all the suggestion put by the counsel of complainant. Thereafter defence evidence was closed vide separate statement made by the accused and matter was listed for final arguments.
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11. Having heard the submission of learned counsel's and pursued the material on record as well as considered the judgemnt cited. Ld. Counsel for parties also filed written submissions and certaiin judgments.
CONTENTIONS OF COMPLAINANT
12. Ld. Counsel for complainant submitted that accused admitted that her husband Shnakar had two brothers namely Girdhari ( Bunty), suresh Kumar (now deceased) and living in joint family at property no. RZ 62, Gali No.24 Vasisth Park till 2016 and after 2016 she alongwith her husband shifted to 2nd floor of said property and the accused intentionally denied her signature on the cheque in question but in cross examination, she admitted that she used to sign in English. She also signed in English on notice u/s 251 cr.pc as well as statement u/s 313 cr.p.c The cheque in question was bounced due to the reason 'Account closed' and not differ to signature. The transaction in question between the complainant and the accused alongwith her family members took placed on 03.09.2013 vide Ex. CW1/A and by that time accused Girdhari @ Bunty who is one of the partner of M/S ABS Group which is run by her husband in partnership of accused Girdhari @ Bunty and Ashok Kumar. It is CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 7 / 28 8 further contended that the signature of the accused on cheque as well as notice and statement u/s 313 Cr.P.C. are same and identical.
13. (ii) It is further submitted that the accused also admitted her correct address mentioned on legal notice Ex. CW1/D where she was residing at the time of issuance of demand notice and even the address mentioned on bail bond and notice u/s 251 cr.p.c is the same. However, it shows that she intentionally deliberately denied to receive the legal notice. Accused took consistent plea that cheque in question has been misused by the complainant but the accused also admitted that no complaint was filed, for misusing of the cheque, against the complainant.
14. It is further argued by counsel for complainant hat the signature of the accused on notice framed against the accused and in statement u/s 313 cr.p.c during the court proceedings are same as on the cheque in question and cheque dishonored due to" Account closed"
and not for the reason "differ signature". Her relationship was normal of her husband, with his brothers and accused herein as they were living in the joint family and the cheque was issued to the complainant during partnership of accused and her jeth Girdhari @ Bunty and Ashok Kumar.
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15. Ld. Counsel for complainant submitted that As per Section 139 of NI act, it shall be presumed unless the contrary is proved that the holder of a cheque received the same of the nature mentioned in Section 138 for discharging any debt or other liability. Even as per Section 118 of NI Act until the contrary is proved, that the Negotiable Instrument was made or drawn for consideration. Therefore, it is settled proposition by the Apex Court in AIR 2008 SC 2898, "that the burden lies upon the accused to prove non- existence of the consideration by bringing on record such facts and circumstances, which would make the court to believe about non- existence of consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable , doubtful or illegal."
16. Hence, the legal presumption about non-issuance of cheque in question towards legal debt and liability is to be discharged by accused on preponderance of probability either by inference of preponderance from the materials brought on record by the parties or from circumstances upon which the accused also placed reliance on judgment title as "Rangappa Vs. Sri Mohan AIR (SC) 2010 1898 submitting that in the present case, the accused has failed to rebut the said legal presumption during cross examination and even in her evidence as such, it is clearly proved that the accused alongwith her jeth Girdhari were partners of M/S ABS Group and to discharge the CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 9 / 28 10 legal liability of firm, she issued the Post dated cheque in favour of complainant and said fact is duly proved from contents of Agreement EX CW1/A in which as per condition no. 4, the accused herself issued the cheque in question. Reliance has also been placed on Supreme Court judgment AIR 1978 SC 1091 ( Inder Singh Vs. State ) by observing that:
" An unmerited acquittal does no good to the society. Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefits thereof where none reasonable exists. A doubt has to be a reasonable doubt and not an excuse for a finding in favour or acquittal . The court should display a greater sense of responsibility and have to be more sensitive."
17. It is submitted by ld. Counsel for complainant that notice was sent to the correct address of accused and even presumption of service is proved as per section 27 of General Clause Act and despite that, no reply of legal notice was given nor payment was made thus, in view of submission and legal proposition of law, complainant has proved the service of legal notice upon the accused as such she may be convicted for offence u/s 138 of NI Act by imposing maximum CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 10 / 28 11 sentence and also pass the award of compensation amount in favour of the complainant from the date of cheque in question as per section 80 of NI Act.
CONTENTIONS OF ACCUSED.
18. Per contra ld. Counsel for accused also file written submissions and submitted that the present case is false case. The name of the accused was included in the case as scape goat on false and fabricated facts. The case was filed by complainant against accused Ashok Kumar and Girdhari @ Banti, however on later stage the complainant himself deleted name of two accused persons namely Ashok Kumar and Girdhari @ Bunti as cheque in question was issued by the present accused Bharti in this case. As per case of the complainant all the allegations are against proposed accused no.2 and 3 with whom the agreement vide Ex. CW1/A was executed and not against present accused except cheque in question and that all the business transaction including the loan/ investment were incurred between complainant and Ashok and Girdhari @ Bunti. Even the complainant has no where mentioned name of accused Bharti in his complaint from page no.1 to 6 with regard to business term thus the version of complainant is false that he had taken the cheque in question from accused Bharti with whom he has never any business/ money transaction.
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19. It is further submitted that the accused Ashok Kumar and Girdhari @ Banti were doing building construction and developer of properties in M/S ABS Group and the complainant invest his money in his business of building construction and developer of properties in partnership. The agreement was executed between complainant and Ashok and Girdhari on 03.09.2013 As per agreement both are agreed to repay the amount as well as Rs. 7,000/- per month towards profit/interest since 03.09.2013 to 28.02.2014 and in order to clear their liability, they entrusted a post dated cheque bearing no. 656897 dated 28.02.2014 for a sum of Rs. 6,19,000/- of the present accused of their own which is returned with remarks 'account closed' and thereafter the complainant wrongly had raised allegation against the accused Bharti for non-payment of amount intentionally and deliberately and not against two accused to whom he has given the money. The mutual agreement was executed between Ashok Kumar and Girdhari @ Banti as well as the complainant. The clause no.3 of the said agreement clearly shows where it has been mentioned that if the said cheque ( entrusted by them) was dishonored due to non- payment, the first party i.e Ashok Kumar and Girdhari @ Bunti will be liable and responsible for legal action as per law but strangely, the complainant failed to take action against those two accused as per law and the complainant made scape goat to Bharti to whom the complainant never paid single penny. It is the duty of the CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 12 / 28 13 complainant to take action against those accused with whom he had transaction for investing money for gain profit but the complainant has failed on this point and with wrong intention had named Bharti as main accused. The mutual agreement is not bearing the signature of accused Bharti hence it shows that said mutual agreement was executed without knowledge of Bharti and the said cheque was misused without putting information in this regard with accused Bharti and in this way name of Bharti as accused in the complaint case has been dragged with malafide intention and deliberately named without any liability to pay the said amount to the complainant.
20. Allegations against the accused in the complaint are based on cheque in question alleging that same was handed over by accused Bharti are false, as accused Bharti was not present at the time of execution of agreement nor it bear her signature. Even in mutual agreement itself no where mentioned presence of accused Bharti or handing over the cheque in question by Bharti herself. Apart from this as first party to the mutual agreement are Girdhari @ Banti and Ashok Kumar are mentioned and not name of accused Bharti. Accused no. 2 and 3 had given cheque of accused Bharti without her knowledge. The cheque in question was never handed over by the accused Bharti. The complainant has also not brought on record witness Manoj, Vijay and Dinesh who are witness to the alleged CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 13 / 28 14 Mutual Agreement to prove that the cheque in question was executed by accused Bharti to discharge liability of her family members. The accused no. 2 and 3 or that to bring on record that the said agreement was executed in presence of accused Bharti and the alleged cheque was entrusted in her presence.
21. It is further contended that accused Bharti had opened the account in State bank of Patiala Janak Puri Branch in 2004 and after doing some transactions, it was lying ideal being not operated and when in year 2009, accused tried to deposit some amount, she came to know that her account was closed due to non performance and could not be excess. It is further contended that cheque in question does not bear her signature. After came to know that cheque in question was misused, she searched her old cheque books and found missing many cheques leaves from the cheque book including cheque in question and on being asked from Girdhari @ Banti, accused Bharti was threatened by him for not to make any complaint nor to take any action for the misuse of cheque.
22. It is further submitted by ld. Counsel for accused that complainant never brought any account details on record and postal track record to prove that said amount of Rs.6,19,000/- was invested by him in the business of accused no.2 and 3 or legal notice was delivered to accused no. 2 and 3 or not. Even otherwise, it was CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 14 / 28 15 accused no.2 and 3 who had entrusted the cheque in question and it is the duty of the complainant to check the reliability of the cheque and the complainant should take action against accused no.2 and 3 who had entrusted the cheque with malafide intention but for the reason best known to complainant. The complainant opted to delete their names from array of parties. Perusal of mutual agreement is mentioned in Clause no.4 that "Smt. Bharti shall never claim or lodge complaint for the said cheque, she/he issued it on behalf of first party." itself shows that this clause has been mentioned with some ulterior motive of their own otherwise in normal course this type of clause never been written in any agreement that the person who handover any security/ cheque towards liability would not object or claim for the same in future or shall never claim or lodge any complaint against the said cheque/ security" itself shows something is being played foul by complainant in connivance with accused no 2 and 3. Further, on being perusal of said agreement it reflects that neither any name nor signed by anyone on the portion lying blank on the place where " guarantor of amount and issue cheque on behalf of first party." is mentioned. Even accused is also not shown as guarantor for the claimed amount nor her signature is anywhere on the said agreement which is an admitted fact. This also proves that accused Bharti did not issue cheque in question in favour of the complainant on behalf of first party nor amount of guarantor is mentioned. Thus, Ex.CW1/A is forged and fabricated if the same CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 15 / 28 16 would have been executed in presence of accused, there would be signature of accused on the same. The present complaint filed in wrong prosecution by bringing name of accused Bharti when she was not having any business transaction with complainant at any point of time which is also admitted fact by complainant. As per deposition of complainant that he has no proof of the firm of accused Ashok and Girdhari nor produced any copy of such partnership on record nor produced any other person who were partners of the alleged firm, who could prove that accused was one of partner thus, the complainant falsely implicated the accused Bharti by using her cheque entrusted to him by accused no.2 and 3 with their connivance and conspiracy of complainant regarding deletion of names of accused no.2 and 3 which reflect that complainant filed the present case with some ulterior motive. In the light of above submission, it shows that neither accused was partner of the alleged firm, nor she had taken any money from the complainant, nor she entrusted her cheque to discharge any liability even no legal notice was served to her thus, prayed that accused may be acquit by all --from and the complainant may be penalized.
23. Having considered the rival submissions, material on record and judgment relied upon.
LEGAL DISCUSSION CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 16 / 28 17
24. Before adjudicate the present complaint, I would like to reproduce section 138 of NI Act, 1881 which says as under :
Section 138 of Negotiable Instruments Act, 1881 ['NI Act'] provides for criminal provision regarding a cheque bounced due to insufficiency of funds. When a cheque bounces due to insufficiency of funds in the drawer's amount, it is punishable under Section 138 of the NI Act.
25. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
" ... The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 17 / 28 18 though it is not positively proved to be true, the accused would be entitled to acquittal"
Burden of prove
26. Further in judgment titled as Kumar Exports Vs Sharma Carpets ,(2009) 2 SCC 513, " This court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted."
27. In the present case, the accused has taken consistent stand that he did not take any money from the present complainant in any point of time nor she had given any cheque by signing the same for any liability nor she received any legal notice nor having any liability towards the complainant. The accused has also taken plea of defence that her husband deals in business of construction of building and collaboration with her brothers in law Gidhari @ Bunty and Ashok ( since deceased) and she do not know the complainant therefore, the onus of proof which is only preponderance of probability upon the accused is very well discharged.
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28. So far as investing money by the complainant or handing over money to accused or member of partnership M/S ABS Group run by accused no.2 and 3 i.e Girdhari and Ashok is concerned, the complainant could not prove the same. As the complainant has not filed any statement of account showing he was having capacity to invest the money nor disclosed from where he used to arrange money for investing the same in the said firm , nor filed any copy of ITR showing that money invested in the said firm. The complainant also failed to prove the mutual agreement without corroborating the same by way of oral or cogent evidence. Even complainant could not prove his financial capacity for investing such huge amount nor could produce any cogent evidence on record in this regard.
29. A bare perusal of relevant portion of cross examination of complainant where he stated that "... I am not aware whether the accused no. 1 Ms. Bharti is partner in M/S ABS Group or not. I have invested in M/S ABS Group and there were 5-6 partners in that firm ..." . ".....It is correct that the name of the accused Bharti is not mentioned in the agreement Ex. CW1/A . ....It is correct that agreement Ex. CW1/A has not been signed by accused bharti. I have not placed on record any document to show whether the accused Bharti owe any liability towards me.."
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30. In cross examination on 2.3.2019, complainant stated that "... I have not invested in M/S ABS Group Partnership firm. Immediately he stated I have given money to the accused Bharti, Ashok Kuamr and Girdhari @ Bunty as they were working in group. I do not have any documentary proof to show that I have given any amount to accused Bharti..." Immediately , he made contradictory statement by stating " I rememebr name of some partners i.e Bunty @ Girdhari, Ashok , Accused Bharti, Sudhir , Manoj..." ".... The accused has issued cheque in question Ex. CW1/B for discharging the liability of M/S ABS Group..."
31. From the above line of deposition of complainant , it is crystal clear not only the complainant failed to meet out the ingredients of section 138 of NI Act to bring home the guilt of accused but also unable to prove that he ever give the alleged cash amount to accused Bharti directly at any point of time. In crossexamination CW1 on 2.3.2019 stated that "... I have not invested in M/S ABS Group Partnership firm.." "... I am not aware whether the accused no. 1 Ms. Bharti is partner in M/S ABS Group or not. "... I rememebr name of some partners i.e Bunty @ Girdhari, Ashok , Accused Bharti, Sudhir , Manoj..." Like wise, he also given two statement regarding handing over the cheque in question , once he said " .... The accused has issued cheque in question vide Ex. CW1/B for discharging the liability of M/S ABS Group..." On CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 20 / 28 21 other hand , he averred in his complainat that " accused no. 2 and 3 entrusted a post dated cheque" In Ex. CW1/A mutual Agreement " first party have deposit ed a post date cheque no. 656897 dt. 28.2.2014 of Rs.6,19,000/-" meaning thereby it were the accused no.2 and 3 who were first party and who deposited the cheque in question with second party i.e complainant. If accused Bharti would have given the cheque in question, then said mututal agreement true as well as signed by accused no.2 nd 3 to discharge their liability which is not so mentioned. Otherwise also, EX CW1/A reflect that Ashok Kumar signed as first party and Girdhari as second party and at the place of guarantor nonesigned and issue cheque on hehalf of first party is blank. This also shows that it is a fabricated document.
32. Further as per final submission filed on behalf of accused it is mentioned that in the year 2009, accused approached to bank to open account in the name of children and at that time she tried to deposit some amount in her account but she could not deposit due to closure of her account due to non performance. This submission has been corroborated by CW2, witness of complainant who stated that cheque in question was dishonoured due to account closed. Thus, accused has rebutted the allegation made by the complainant during cross examination of complainant.
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33. Reliance can be placed of judgement Rangappa Vs. Sri Mohan (2010) 11 SCC 441 wherein it is held that:
" i. Presumption under Section 118 (a) and 139 N.I Act, as once the execution of cheque is admitted Section 139 of the Act, mandates a presumption that cheque was for the discharge of our debt or other liability ( through in this case execution is not admitted, however, signatures were admitted) ii The presumption u/s 139 N.I Act is rebuttable pre-sumption and onus is on accused to raise the probable defence. The standard of proof for rebutting presumption is that of pre- ponderance of probabilities.
iii. To rebut the presumption, it is open to accused to reply on evidence led by her or the accused can also rely on the materials submitted by the compainant in order to raise probable defence. Inference of preponderance of probabilities can be drawn not only from material brought on record by the parties but also by reference to the circumstances upon which they rely.
Iv It is not necessary for accused to step into witness box in support of his defence Sec. 139 imposed on evidentiary burden CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 22 / 28 23 and not a persuation burden, as held by Hon'ble Apex cout from time to time.
34. Accused relied upon on the material submitted by the complainant in order to raise dount in the complainant case and complainant could not prove his financial capacity for investing money in the business. Even otherwise, complainant himself make a hole in his own case stating that "....I have not invested in M/S ABS Group partnership firm." later on deposition of CW1 that "
I also do not have any proof regarding the partnership of Ashok and Girdhari @ Bunty in M/S ABS Group." corroborate the plea of defence of accused who stated that she is house wife and she do not know about any group in the name of ABS Group formed by her husband in partnership with Girdhari @ Bunty and Ashok Kumar . It is admitted fact that accused no. 2 and 3 were residing in same building where accused Bharti and legal notice might have reached at the said address but could not receive by accused. However, summon of the court was also received by her through her mother in law as she is residing on the same floor where ( accused Bharti ) resides. Complainant neither in his complaint, legal notice or pre- summoning evidence stated that he had given money to accused Bharti in cash only first time during cross examination he stated that ".... I have given the amount in cash to the accused Bharti.
CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 23 / 28 24 Some amount was also given by me to Ashok by way of cheque. Ihave not shown the amount given by me to Bharti in my balance sheets and ITRs...." The complainant has filed any statement of account or source of fund or date of disbursing cash amount to accused , every thing he stated in air without any cogent evidence. It clearly proves that no amount was disbursed to the accused in absence of any reliable trustworthy evidence. In fact, it is conceivable that in some cases, the accused may not need to adduce own evidence. Rebuttal can be done by cross examination of complainant and by showing contradictions and inconsistencies in the case of the complainant itself and from the material placed by the complainant. Once rebuttal evidence is adduced and accepted by the Court, the evidential burden shifts back to the complainant and thereafter, the presumptions under Section 118 and 139 NI Act would not come to the aid of the complainant.
35. The complainant has not been able to prove its case by way of ocular, corroborative, trustworthy evidence. The ingredient of section 138 NI Act, as discussed in the preceding para, could not be complied under the facts and circumstances of the present case. The burden of proof on accused is not as high as that of complainant. The reference of Kamla S vs. Vidhyadharan MJ 2007 III AD SC 184.
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36. It stand established on record that as there is no incriminating evidence has been adduced on record against the accused in order to prove that the accused had issued the cheque towards liability. Even deposition of complainant himself prove that the accused was not having any liability towards the complainant when he stated that " It is correct that the accused donot owe any personal liability towards me." So far as cheque in question that accused issued the cheuqe towards liability of ABS group is concerned, here also complainant make a hole on his own averments by stating during cross examination conducted on 2.3. 2019 that " I have not invested in M/S ABS Group partnership firm." When he has not invested in the said firm, then for what purpose the accused issued the cheque in question thus, here also the complainant has not been able to prove that the cheque in question was issued by the accused for discharge of legally enforceable liability or debt as on the date of the cheque and hence the foremost ingredients of offence punishable u/s 138 of NI Act is not established and same are missing as per material brought on record by complainant.
37. It reflects that there is every possibility of malafide intention of complainant towards the accused to implicate in false case by taking cheque leaf by Ashok or Girdhari in connivance with complainant for reason best known to them and his malafide intention also reflect when complainant opted to delete their name from array of accused CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 25 / 28 26 and there is no criminal proceding pending against the accused herein. Thus the averments of complainant are not reliable without any cogent evidence.
SERVICE OF LEGAL NOTICE
38. In the instant case, the accused has denied receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and statement of the accused u/s 313 Cr.P.C. Reliance can also be placed on C.C.Alavi Haji vs Palapetty Muhammad (2007) 6 SCC 555 it was held by the Hon'ble Supreme Court:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 26 / 28 27 from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously 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 G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
39. However in the instant case, there is no tracking report . The acknowledgment has been signed by one Anju but not shown her relationship with the accused. It stand established on record in the form of evidence documents exhibited , and statement of accused recorded u/s 313 Cr.P.C or notice u/s 251 cr.p.c the accused never received any cash amount from the complainant. The complainant himself that he did not invest in ABS Group nor he received cheque from the accused herein Bharti or accused have any concerned with the ABS firm. The complainant has not been able to prove that the cheque in question was for discharge of legally enforceable liability as on the date of the cheque and hence the foremost ingredients of offence punishable u/s 138 of NI Act is not established beyound reasonable doubt.
40. In view of the aforementioned facts and circumstances, this court reached to the definite conclusion that complainant has not CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 27 / 28 28 been able to duly prove its case u/s 138 of NI Act beyond shadow of any reasonable doubt. Accordingly, accused Mrs Bharti w/o Sh. Shanker is hereby acquitted for offence punishable u/s 138 NI Act qua the cheque in question.
41. This judgment contains 28 pages in number and every page of this judgment is signed by me with dated.
Announced in the open Court On 02 June, 2023.
( Dr. Satinder Kumar Gautam) PO Special Court (NI Act) S-W Dwarka 02.06.2023 CC NO. 7537/2018 Sh.Tej Gangwar Vs. Mr.s Bharti 28 / 28