Delhi District Court
Anupam Sharma vs Namita Sharma on 30 August, 2022
IN THE COURT OF MS AISHWARYA SINGH KASHYAP,
METROPOLITAN MAGISTRATE (MAHILA COURT),
KARKARDOOMA COURTS, DELHI
(Pronounced in compliance of Note 2 of the Transfer Order dated 24th
August, 2022 issued by the Hon'ble High Court of Delhi)
Anupam Sharma vs Namita Sharma
CC No. 762/2013; 46929/2016 [Preet Vihar]
Sh. Anupam Sharma
S/o Sh. Vijay Sharma
R/o 403, Swasthya Vihar Apartment,
Delhi-110092 ........ Complainant
Vs
Ms. Namita Sharma
W/o Sh. Rajesh Sharma
R/o, C-19, Preet Vihar, Vikas Marg,
Delhi-110092 .......Accused
Complaint Case No.: 46929/2016 (Old CC 762/2013)
Date of Institution: 21.08.2013
Offence alleged: Section 138 Negotiable Instruments Act,
1881
Plea of the accused: Pleaded not guilty
Final Order: Acquitted
Date of Reservation: 06.08.2022
Date of Decision: 30.08.2022
Argued by:
Ld. Counsel for the Complainant: Sh. Anilendra Pandey
Ld. Counsels for the Accused: Senior Advocate Sh. Vivek Sood and Sh.
B.K.Pandey
1 of 27
AISHWARYA SINGH Digitally signed by AISHWARYA
SINGH KASHYAP
KASHYAP Date: 2022.08.30 21:12:50 +05'30'
Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016
Note: The undersigned was transferred from MM-NI-Act, East to MM-03,
Mahila Court, Shahdara, Karkardooma Courts, New Delhi after the
judgements were reserved for pronouncement in all four connected files.
However, in compliance of order of the Hon'ble Delhi High Court bearing
no 24/DHC/Gaz/G-7/VI.E.2(a)/2022 dated 24.08.2022, the same have been
pronounced while working as MM-03, Mahila Court, Shahdara,
Karkardooma Courts in compliance of the aforesaid order.
JUDGMENT
Factual Matrix
1. The complaint is based on alleged facts that Mr. Anupam Sharma (hereinafter 'the complainant') was unemployed however, in July 2012, he commenced jewellery business with the assistance of family and friends whilst investing the money already in his possession. It is alleged that the complainant utilized 21 lakhs received from the sale of agricultural land and accumulated further 50 lakhs to commence his jewellery business with Ms. Namita Sharma (hereinafter 'the accused') who is also the aunty of the complainant and engaged in similar jewellery business. It is further alleged that out of the four connected matters arising between the parties, in three matters, upon the request of the accused, the complainant supplied gold and diamond jewellery to the accused and in lieu thereof, she issued three post dated cheques in favour of the complainant worth Rs 24 lakhs (subject matter of the present case).
2. Further, in the course of business, the accused took a friendly loan of Rs 22 lakhs from the complainant and in lieu thereof, in order to discharge her liability, the accused issued three post dated cheques in favour of the complainant. Against the alleged supply of diamond and gold studded jewellery, the accused issued a post dated cheque in favour of the complainant 2 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:13:06 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 bearing no. 462810 dated 15.06.2013 for Rs.8,0,000/- drawn on the Nainital Bank Limited, 4, Jagriti Enclave, Vikas Marg extensions, New Delhi-110092 (hereinafter, 'the cheque in question'). However, upon presentment, the said cheque was dishonoured with remarks "Payment Stopped by drawer" vide return memo dated 18.06.2013. The complainant served legal demand notice on the accused dated 25.06.2013 demanding the payment of the total cheque amount. On failure of the accused to pay the said amount within 15 days, the complainant filed the instant complaint under Section 138/142 of the Negotiable Instruments Act, 1881 (hereinafter 'The Act').
Pre-summoning Evidence, Cognizance and Notice
3. Ld. Predecessor condoned the delay in filing the present case vide order dated 06.12.2013 whereby pre-summoning evidence was led by the complainant on the same day and the Ld. Predecessor took cognizance and issued summons to the accused. The accused entered appearance and notice under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC') for the offence under Section 138 of the Act was served upon accused on 27.10.2014, to which the accused pleaded not guilty and claimed trial. In plea of defence, the accused pleaded as under:-
Plea of Defence of the accused.
1. It is correct that cheque in question bears my signature, name of my bank and my account number. I have filed the amount in digits and words as appearing on cheque in question. However, I did not fill any other content of the cheque in question.
2. I know the complainant as he is the son of my husband's elder brother. I had handed over six cheques including cheques in question to the complainant in respect of deal of supply of gold and diamond jewellery which was never completed as the jewellery was never supplied by the 3 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:13:26 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 complainant to me. I demanded the said cheques back from the complainant on several occasions. However, the complainant refused to return the same on one pretext or other. I have also issued one notice to the complainant with respect to return of my cheques in question in April, 2013. However, neither the complainant replied to the said notice nor did he return my cheques in question.
Thereafter, on 15 th June, 2013, I had sent another notice to the complainant. However, even after the second notice, the complainant did not return my cheques. Resultantly, I stopped the payment of all the six cheques with my bank on 17.06.2013. I have no liability towards the complainant.
3. On 13.06.2013, an altercation took place between complainant, complainant's father and my family including my husband and my daughter. A police case with PS Preet Vihar was also registered in this regard and in order to avenge the said case, present complaint case has been filed.
4. I have received legal demand notice issued by the complainant and I have replied to the same.
Complainant's Evidence
4. During the trial, the complainant has led the following documentary evidence against the accused to prove the case.
Oral Evidence
1. CW1: Complainant on 10.08.2015, 31.10.2015, 30.01.2016, 16.02.2017.
Documentary Evidence
1. EX.CW1/A: Evidence by Way of Affidavit
2. EX.CW1/1: Cheque in Question
3. EX.CW1/2: Return Memo
4. EX.CW1/3: Legal Demand Notice
5. EX.CW1/4: Postal Receipt
6. EX.CW1/5: Tracking Report
7. Ex. CW1/10: Copy of Sale Deed
8. Ex. CW1/11: Original Diary
9. Ex. CW1/12: Copy of Bank Statement 4 of 27 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.08.30 21:13:44 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 Statement of Accused
5. Thereafter, in order to allow the accused to personally explain the circumstances appearing in evidence against her, the statement under Section 313 CrPC was recorded by the Ld Predecessor without oath on 17.03.2017 Therein, the accused denied all the allegations against her and stated as hereunder:
1. It is correct that cheque in question bears my signature, name of my bank and my bank account number. I have filled the column of amount in digits and words on the cheque in question. I did not fill the remaining contents of the cheque in question.
2. I admit that I have stopped the payment of cheque in question.
3. I received the legal demand notice issued by the complainant and I replied to the same.
4. Document Ex. CW1/11 is forged and fabricated and it does not bear my signature.
5. I have received Rs. 3,00,000/- from the complainant as reflected in the bank account statement Ex. CW1/12 but that does not have any concern with transaction in question.
6. I have never purchased any jewellery from the complainant. I had handed over six cheques including cheque in question as security as the complainant was supposed to supply jewellery to me but the same was not supplied. Later the complainant misused my cheques in question by filling the present complaint case. I have no liability towards the complainant with respect to cheques in question. I have demanded my cheques including cheques in question from the complainant telephonically as well as by way of written notice.
However, the complainant did not return my cheques and rather came to my house and had an arguments with me in June, 2013 with respect to which a police case was also registered with PS Preet Vihar. As the complainant did not return my cheques including cheque in question, I stopped the payment of cheques in question. Present complaint case is false and fabricated.
7. Yes, I want to lead evidence in my defence.
Defence Evidence
Oral Evidence
I. DW: DW-1 on 29.07.2019 & 23.11.2019
Documentary Evidence
I. Ex. DW1/1 (colly): Demand Letters to the complainant demanding the return of the cheques in 5 of 27 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.08.30 21:14:01 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 question dated 10.04.2013.
II.Ex. DW1/2: Postal Delivery Proof III.Ex. DW1/3(colly): Reminder Demand Letter dated 15.06.2013.
IVEx. DW1/4: Postal Delivery Proof
V Ex. DW1/5: Letter to Bank Chief Manager for
request to stop payment dt 17.06.2013
VI Ex. DW1/6: Reply to Legal Demand Notice
VI Ex. DW1/7: Police Complaint against complainant
DD No. 39B dated 27.10.2016.
VIII Ex. DW1/8: Public Notice re: complainant being
disowned by his parents
6. The accused, upon her application, led the aforementioned evidence in her defence. Further, an application under Section 45 Indian Evidence Act, 1872 (hereinafter 'The Evidence Act') read with Section 311 & 311A CrPC was moved on behalf of the accused qua Ex CW1/11 seeking expert opinion which was allowed by the Ld. Predecessor vide order dated 04.07.2017 however, the FSL report was received as late as 05.12.2019. Defence evidence was closed on 21.12.2019, final arguments were heard before the Ld. Predecessor and the matter was listed for judgement.
7. Subsequently, during the Covid-19 Pandemic, the undersigned took charge on 17.11.2020 and the present case was listed before the undersigned for the first time on 11.12.2020 wherein the accused move an application under Section 311 CrPC in order to challenge the FSL Report whilst requesting to take on record the Report of Handwriting Expert chosen by the accused. On account of the aforesaid private report being based 6 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:14:19 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 on copies instead of original documents, the application was dismissed vide order dated 16.03.2021 after hearing rival submissions on the application. Written submissions on behalf of parties were taken on record and final arguments were also heard however, the case was protracted on account of the second wave of the Covid-19 Pandemic and on account of proceedings being stayed by the Hon'ble Delhi High Court whereby order dismissing the aforesaid application under Section 311 was challenged and remained stayed until May as per order dated 26.05.2022 whereby said petition was dismissed as withdrawn, granting opportunity to the accused to adduce arguments before the trial court. Thus detailed arguments on behalf of both the parties were heard afresh and matter was listed for judgement on 06.08.2022 after hearing rival submissions.
8. Ld. Counsel for complainant submitted that the statutory presumptions under Section 118 and 139 of the Act were in his favour as the signatures on the cheques in question were duly admitted by the accused juxtaposed with the FSL Report qua Ex. CW1/11 i.e. the Diary. It was submitted that the defence of cheques being given as security was sham since during her cross- examination, the accused deposed that she was not aware of the meaning of security cheques when they were handed over. The complainant has also raised questions regarding the failure of the accused to lodge a police complaint regarding the cheques in question other than her demand notice.
9. Per contra, Ld. Counsel for the accused submitted that the complaint was liable to be dismissed on many counts such as the legal demand notice being defective, lack of financial capacity of 7 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:14:38 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 the complainant, failure to mention the transactions in ITR, producing a forged and fabricated document Ex. CW1/11 i.e. the diary at a belated stage of the trial, contradictions in pleadings and evidence of the complainant qua material facts like date of advancement of amount etc. Reliance placed on Basalingappa vs Mudibasappa (2019) 2 SCC (Cri) 571; Indus Airways Private Limited & Ors vs Magnum Aviation Private Limited (2014) 6 SCC (Cri) 845; M/s Kumar Exports vs M/s Sharma Carpets; K. Subramani vs K Damodara Naidu; S K Jain vs Vijay Kalra; Satish Kumar vs State NCT of Delhi and Sanjay Mishra vs Kanishka @ Nikki & Anr.
Legal Position
10. In order to establish the offence under Section 138 of the Act, the prosecution must fulfil all the essential ingredients of the offence, as highlighted hereunder.
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in 8 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:14:58 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 writing given to the drawer within thirty days of the receipt of information of the dishonour of the cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
11. Further, all the conditions stipulated under Section 142 of the Act must be satisfied. The complainant claims in the present case that he prima facie satisfies all the aforesaid conditions. However, the accused has disputed the fulfilment of the second ingredient. The same is being considered hereinafter. However, at the outset, the objection of the accused with respect to the alleged invalidity of the legal demand notice for demanding additional Rs 25,000/- against the cheque amount of Rs 8 lakhs holds no water in light of the fact that both are clearly severable and distinguishable thus in consonance with the principles laid down in Suman Sethi vs Ajay K Churiwal & Anr 1. This has been further fortified in the case titled Rahul Builders vs Arihant Fertilizers & Chemicals & Anr (2008) 2 SCC 321. In-fact, the same principles were reiterated in the authority relied upon by the accused herself in K.R. Indira vs Dr G. Adinarayana2 which is also distinguishable on facts wherein the legal demand notice was with respect to the demand of loan amount instead of the cheque amount unlike the present case. Therefore, no infirmity is found in the legal demand notice and the same is found valid.
1 (2000) 2 SCC 380.
2 (2003) 8 SCC 300.
9 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:15:16 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 Appreciation of Evidence Standard of Proof
12. The scales of degree of proof required in a cheque dishonour case have been set by the Hon'ble Supreme Court in Rangappa vs Sri Mohan (2010) 11 SCC 441 holding that once the cheque and signatures are admitted, presumptions in favour of the complainant are raised. However, said presumptions are rebuttable in nature and the 'standard of proof' required on part of the accused is that of 'preponderance of probabilities'. This can be achieved either by adducing evidence in defence or by raising probable defence whilst relying on the evidence already on record.
13. 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. It is not necessary for the accused to come in the witness box in support of his defence.3 The accused has successfully put a challenge qua the existence of legally enforceable liability/ the version put forth by the complainant in the instant case for reasons discussed hereunder.
Absence of Legally Enforceable Debt/Liability and Adducing Probable Defence
14. The second ingredient is the primary point of contention in the present case wherein, the accused has denied the existence of a legally enforceable liability towards the complainant. Her 3 Basalingappa vs Mudibasappa (2019) 5 SCC 418; M/s Kumar Exports vs M/s Sharma Carpets AIR 2009 SC 1518.
10 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:15:36 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 defence remained consistent throughout the trial whereby accused claims that all the six signed cheques in question were given to the complainant as security against proposed business transactions (in the instant case as well as the other connected matters between the same parties) that did not materialise as the complainant failed to deliver goods. In order to corroborate her defence, the accused put reliance on the demand letters issued to the complainant for the return of her cheques given prior in time (i.e. prior to dishonour of cheques in question), instructions to the bank to 'stop payment' when the complainant failed to return the cheques in question, as well as copy of complaint filed against the complainant. It is also pertinent to mention that the parties are related to each other. It is also an admitted fact that the complainant admitted being unemployed at the relevant time as well as the fact that he was disowned by his family via public notice4 - yet in other connected matters, a similar liability has been imputed against the accused in addition to the claim of advancement of friendly loan of Rs 22 lakhs to the accused around the same time when the complainant alleged to have commenced the jewellery business with the assistance of sale of agricultural land and loan from friends.
15. Therefore, despite signature on the cheque in question being admitted--raising the presumptions under Section 118 read with Section 139 of the Act in favour of the complainant; the accused has raised a probable defence on account of failure to prove delivery of goods, material discrepancies juxtaposed with the abject lack of financial 4 Public Notice in Dainik Jagran Ex. DW1/8.
11 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:16:08 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 capacity of the complainant to prove that he was a man of means capable of trading in a capital intensive jewellery business at the relevant time whilst also allegedly having advanced a significant loan of Rs 22 lakhs to the accused in 2012 itself, and among other relevant facts, admitting to the fact that he was unemployed and disowned by his family. These facts are further fortified by the averments made by the complainant himself in other connected matters between the same parties wherein the transaction is based on the delivery of goods (gold/diamond jewellery) which is unsupported by proof of delivery and denied by the accused in addition to advancing a loan amount of Rs 22 lakhs to the accused. Therein, the complainant stated that the amount was advanced to the accused as a friendly loan whereas in the instant matter, the same amount is said to have been used for the purchase of jewellery in the business. Thus, foremost reliance is placed on the inconsistencies in the complaint as well as challenge to the financial capacity of the complainant, casting the existence of a legally enforceable liability/debt in grave doubt. It is clear that a person cannot be compelled to produce negative evidence in his/her defence. Thus, the accused must rebut the statutory presumptions on the basis of preponderance of probabilities in order to raise doubt over the existence of debt/liability. This view was reinforced by the Hon'ble Supreme Court in M/s Kumar Exports vs M/s Sharma Carpets AIR 2009 SC 1518 wherein, the court held as under:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory
12 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:16:26 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial....However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, 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 presumptions, 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 to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Section 118 and 139 of the Act will not again come to the complainant's rescue.5
16. This has further been elaborated in Rangappa (supra) holding that:
Under Section 118(a) of the NI Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."6 5 Paras 11 and 12.
6 Para 23.
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AISHWARYA Digitally signed by AISHWARYA
SINGH KASHYAP
SINGH KASHYAP Date: 2022.08.30 21:16:45 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 Therefore, the existence of legally enforceable liability has been challenged by the accused on the grounds discussed hereunder by challenging the fulfilment of the essential ingredients of the offence.
Failure to Prove Delivery Of Goods/Jewellery to the Accused
17. Against the aforesaid backdrop wherein the accused has confronted the complainant with the existence of any transaction/liability between them, the proof of supply of jewellery is germane to the existence of liability in the instant case. Evidently, the complaint itself is silent on details of the alleged order placed by the accused, or the details of the alleged order/jewellery or the statement of accounts or the proof of delivery of jewellery. The only details mentioned in the complaint and the legal demand notice are the supply of "diamond and gold studded jewelry". During cross-examination, the complainant admitted that he did not have any proof of purchase of jewellery nor could remember the details of their purchase, he did not have any bills with respect to the transaction and deposed that he did not maintain any accounts or have a TIN against supply of goods among other things. He deposed as under:
I was doing the business work of jewellery in the year 2012 without any name and style (vol. as I had just started my business of jewellery). I have not mentioned my dealing with respect to jewellery in year 2012-2013 in my ITRs. I am an income tax payee....Prior to 2012, may be in year 2011, I do not exactly remember the year, I had sold my agricultural land for an amount of Rs. 21 lakhs and received the entire amount through demand draft and thereafter, I started my jewellery business. After 2012, I have not joined any job. I do not have any bill with respect to transaction in question....I am having a list of items supplied to the 14 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:17:04 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 accused by me which bears my signatures. I am not having any original receipt with respect to transaction in question.7 I have brought today the list of items supplied to the accused and the same is Ex. CW1/11 (OSR). I have also brought today my bank account statement reflecting payment of Rs.
3,00,000/- to the accused through cheques no. 4322 on 19.11.2011 and the same is Ex. CW1/12 (OSR). It is correct that document Ex. CW1/11 bears my handwriting. It is wrong to suggest that I have forged the signature of the accused on document Ex. CW1/11.8 ...I do not remember the exact date when the accused had signed document Ex. CW1/11 but the same was signed in the year 2012. My dealing with the accused started in 2011 but I do not remember the date till which it continued. Accused has never given me any other cheque apart from cheques in question. Apart from the transactions in question, I also had other transactions with the accused but the same has already been updated.9 ...No books of account have been maintained with respect to my transactions with the accused or any other person. I was not having any TIN no. or VAT payment proof at the time of transaction in question.10 No eye witness was present at the time of handing over of jewellery by me to the accused. The jewellery with respect to the transactions in question was given to the accused on different dates. I do not remember the date, month and year of handing over of jewellery to the accused. The jewellery that I had provided to the accused included solitaires, diamond bangles, etc. but I do not remember their specifications. I have purchased the jewellery from the market in Karol bagh whose name I do not remember. I do not have any proof for the same or the price of purchase. I had made payment of the said purchase of jewellery from the money received from the sale of my agricultural land and I had also taken some loans from my friends and family. The names of my friends from whom I had taken loan for the aforesaid purpose include Sushma Gupta, Ritu Barua and Anupama Barua from whom I had taken Rs. 10,00,000/-, Rs. 5,00,000/- (approx) and Rs. 5,00,000/- (approx) respectively. However, these loans were in the form of gold and not hard currency.11
18. Therefore, the claim put forth by the complainant is found suspect in view of the abject lack of evidence with respect to supply of precious goods such as diamonds and gold. It is 7 Cross Examination of CW1/Complainant on 30.01.2016. 8 Cross Examination of CW1/Complainant on 16.02.2017. 9 Ibid.
10 Ibid.
11 Ibid.
15 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:17:24 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 improbable to believe that a person engaged in the business of precious stones and metals would not keep a single documentary evidence of the goods allegedly purchased and supplied/inventory with specifications of gold and diamond traded. It is further uncommon to trade such goods without authenticity certificates or paperwork assuring their future exchange or warranty with respect to subsequent sale/value. Therefore, when the complaint is hinged on any liability based on delivery of goods, it is imperative to prove such delivery. The court dismissed the complaint for failure on the part of the complainant to produce relevant books of accounts in case titled Ghanshyamdas Lalchand Chandak vs Sheikh Hamid Sheikh Gulab12. A similar view was taken by the court in M/s Hi-Tech Automation vs J.K.Sharma13wherein the complainant failed to adduce cogent evidence with respect to delivery of the delivery of goods to the accused; the court held as under:
When a person claims that no material has been supplied to him, it is impossible for him to give evidence of such a negative fact. The burden was upon the complainant to duly prove the supply of material to the accused qua invoice Ex.C2.... A bill is a document which is capable of being prepared unilaterally by one party and the mere production of a bill is not sufficient to prove the supply of material and some more evidence is required. The complainant has neither produced any purchase order nor any goods receipt in respect of their supply.... Furthermore, no stock register has been produced by the complainant in order to show that indeed he was in possession of the material shown in the bill Ex.C2 as on the relevant date i.e. 4.11.2008 and the stock register of subsequent dates to show that such material was taken out of his firm. .... In this respect, it may be noted that apart from his own interested testimony, the complainant has not examined any other independent witness who could have duly proved and corroborated the said fact. Resultantly, the complainant has failed to duly establish the supply of material to the accused qua bill 12 2018 (4) LRC 488 (Bom).
13 2014 SCC OnLine P&H 17317.
16 of 27 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.08.30 21:17:43 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 Ex.C2 and the accused has succeeded in rebutting the presumption under Section 139 of the Act and consequently, it cannot be said that the cheque in question had been issued by the accused in favour of the complainant in discharge of his existing debt or liability.14
19. Pertinently, the only proof of supply of goods furnished by the complainant is Ex. CW1/11 i.e. a diary maintained in his own handwriting regarding supply of goods to the accused allegedly bearing the signature of the accused. Firstly, the complainant has failed to explain why such an important piece of evidence was not mentioned in the legal demand notice and/or his complaint or even during the trial until the last leg of cross-examination on 16.02.2017, and Secondly, the diary i.e. Ex. CW1/11 itself is unreliable for several reasons. Upon careful scrutiny of the diary Ex. CW1/11, it is noteworthy to mention that no other page of the diary bears anyone else's receiving or signature. In-fact, all the other pages of the diary mention random details regarding diesel/petrol/paint/ etc i.e. do not mention any details of jewellery/supply of jewellery. The page bearing the alleged signature of the accused is the first and sole page of the diary mentioning jewellery (without clear specifications like carat/cut/color/clarity of the solitaires or make of gold i.e. coin/bullion etc) with a clear receiving and signature and such details are sordidly missing from the remaining parts of the diary. It is highly improbable that a man who has just commenced a jewellery business after being unemployed would keep account of such significant transactions in such a callous and cavalier manner in a diary that does not reflect any other 14 Para 25.
17 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:18:02 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 details of jewellery whatsoever but tracks details of sundry items. The diary Ex. CW1/11 does not reflect the supply of jewellery/precious goods maintained in the ordinary course of business and is extremely unreliable.
20. Further, though the FSL Report No. FSL2018/D-2164 states that "As such, the possibility of the person who wrote blue enclosed admitted signatures stamped and marked as A1 to A7 also wrote the red enclosed questioned signature similarly stamped and marked as Q1 cannot be ruled out.", after careful scrutiny and comparison by the court, the alleged signature on the diary Ex. CW1/11 prima facie differ from the admitted signatures of the accused available on the judicial record. None of the admitted signature specimens of the accused on the judicial record bear a backstroke/line under the signature. The application of the accused under Section 311 to take on record another FSL report based on private opinion was dismissed as the said private report was based on photocopies of specimen signatures instead of originals thereby being inadmissible in law. However, it is apposite to mention herein that expert opinion is an 'opinion evidence' alone and is not conclusive in nature as held in S.P.S. Rathore vs CBI and Anr15 wherein the court held that expert evidence is of probative value i.e. only an opinion evidence and is not conclusive. It cannot be relied upon unless corroborated by clear direct evidence or by circumstantial evidence. Thus it is an extremely weak evidence and must be corroborated either by clear, direct evidence or by circumstantial evidence. Therefore, the court warned against 15 AIR 2016 SC 4486.
18 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:18:19 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 any conviction or acquittal solely based on expert opinion without substantial corroboration. Since the diary itself does not seem to be a true and proper account of jewellery purchased/supplied between the parties in addition to the fact that the signature against receiving are disputed and upon scrutiny by court, also seem to differ from the admitted signatures of the accused on judicial record, juxtaposed with the weak financial position of the complainant unable to share any documentary evidence with respect to the details of purchase of goods/jewellery himself, the complainant has failed to prove the supply of delivery of goods/jewellery to the accused. Improbable Transaction: Inconsistencies in the Timeline and Prior Complaint filed by the Accused
21. As per the version put forth by the complainant himself, he was unemployed yet commenced jewellery business with the assistance of family members and friends in July 2012 wherein he received Rs 21 lakhs from the sale proceeds of agricultural land through DD and further Rs 50 lakhs collected from others. The complaint simply states that three PDCs, including the cheque in question, were given by the accused aunty in lieu of supply of gold and diamond jewellery totalling to Rs 24 lakhs and three PDCs for the alleged friendly loan of Rs 22 Lakhs during the course of business commenced in 2012. No material details with respect to date(s) of giving of the significant cash loan of Rs 22 lakhs or handing over of the cheques in question has been shared by the complainant. This is further convoluted by the fact that the legal demand notice claims the relevant period to be November, 2012. However, during his cross-
19 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:18:38 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 examination on different dates, the complainant deposed as under
with respect to the details of the transaction as well as the alleged date of advancement of loan amount:
The accused handed over three cheques for an amount of Rs. 8,00,000/-, Rs 8,00,000/- and Rs. 6,00,000/- (total amounting to Rs. 22,00,000/-) to me in October 2012 and three cheques for an amount of Rs. 8,00,000/- each in November 2012.16 ...I do not remember whether I was dealing with the accused in the year 2011 or not.17 ...I had given around Rs. 20-22 lakhs to the accused in the year 2012 but I do not remember the exact date and month. The said amount of Rs. 20-22 lakhs were given by me to the accused in 2-3 installments in the year 2012. I do not remember the said installments amount. ...For the remaining installments paid to the accused, there was no eye witness. I can not bring my bank account statement on record to show the receiving of income after sale of agricultural land. It is correct that my father has disowned me. (Vol. However, I am still living with my parents).18
22. In view of the aforesaid material inconsistencies in timeline, juxtaposed with the fact that the complaint is entirely silent on the details of alleged supply of goods, and said missing details subsequently vacillated/improved during cross-
examination, the version of the complainant does not instil any confidence before the court. This is further exacerbated with the fact that the complainant admitted being unemployed and dependent on his parents prior to being disowned by them and relied on unsubstantiated sale proceeds (Rs 21 lakhs) and financial assistance from family and friends to commence his jewellery business. As per the version of the complainant himself, he used his available monies to kick-start the jewellery business and supply goods to the accused around the same time. In the given circumstances, it is improbable to believe the 16 Cross-Examination of Complainant/CW1 on 10.08.2015. 17 Cross-Examination of Complainant/CW1 on 31.10.2015. 18 Cross-Examination of Complainant/CW1 on 16.02.2017.
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SINGH KASHYAP Date: 2022.08.30 21:18:57 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 capacity of the complainant to have been engaged in the business of jewellery especially on account of lack of any cogent evidence to support the purchase and supply of jewellery to the accused.
23. In addition to the facts underscored so far, the complainant also admitted that a complaint was filed by the accused against him.19 He deposed as under:
It is correct that there is a dispute between the family of the accused and my family pertaining to some financial issues. It is wrong to suggest that I alongwith some other persons of family attacked the accused and her family on 14.06.2013. However, I admit that a kalandra dt. 14.06.2013 was registered with respect to an incident which had taken place between me and my family as well as family of the accused. It is wrong to suggest that only because of this kalendra and misused the cheques of the accused and filed the present complaint cases.20 The defence of the accused has remained consistent during the trial that upon the failure of the complainant to return the cheques in question despite demand letters, 21 the accused instructed the bank to 'stop payment' of the cheques in question (prior to the dishonour of cheques in question). 22 Therefore, the accused has successfully raised a probable defence based on the material already available on record.
Lack of Financial Capacity of the Complainant
24. Against the aforesaid backdrop, the second ingredient with respect to existence of legally enforceable liability is pivotal in the present case wherein, in addition to an 19 Ex. DW1/7.
20 Cross-Examination of Complainant/CW1 on 16.02.2017. 21 Ex. DW1/1 to Ex. DW1/4.
22 Ex. DW1/6.
21 of 27 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.08.30 21:19:16 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 alleged friendly loan of Rs 22 lakhs, the complainant claims to have cumulatively supplied jewellery worth Rs 24 Lakhs to the accused in three connected matters of Rs 8 lakhs each around the same time. Thus, the accused has challenged the financial capacity of the complainant. Herein, juxtaposed with the backdrop discussed so far, the complainant has failed to furnish any cogent evidence, oral or documentary, in order to support his claim since he has not revealed his exact source of funds. The complainant, upon being cross-examined, admitted that he was unemployed and disowned at the relevant time.23 He further claimed that some amount was accumulated with the assistance of friends however, said details were never revealed during the trial, including the proof of receiving Rs 21 lakhs as sale proceeds from the sale of agricultural land through Demand Draft.
I was unemployed prior to 2012 and I was dependent on my parents. Prior to 2012, may be in year 2011, I do not exactly remember the year, I had sold my agricultural land for an amount of Rs. 21 lakhs and received the entire amount through demand draft and thereafter, I started my jewellery business.24 I can not bring my bank account statement on record to show the receiving of income after sale of agricultural land. It is correct that my father has disowned me. (Vol. However, I am still living with my parents).25
25. Interestingly, the complainant (in other connected matter between the same parties) claimed to have advanced a friendly loan of Rs 22 lakhs to the accused whereby he received Rs 21 Lakhs from sale proceeds and remaining through loan from friends. The complainant by his own admission claimed 23 During cross-examination and Public Notice Ex. DW1/8. 24 Cross-Examination of Complainant/CW1 on 30.01.2016. 25 Cross-Examination of Complainant/CW1 on 16.02.2017.
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SINGH KASHYAP Date: 2022.08.30 21:19:37 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 that the loan amount received from friends was in the form of gold and not currency. Thus, it becomes improbable to believe that the complainant had the capital to invest in a jewellery business whereby not only he advanced a loan of Rs 22 Lakhs to the accused, he also supplied jewellery worth Rs 24 Lakhs to the accused aunty around the same time. He deposed as under:
I do not remember the date, month and year of handing over of jewellery to the accused. The jewellery that I had provided to the accused included solitaires, diamond bangles, etc. but I do not remember their specifications. I have purchased the jewellery from the market in Karol bagh whose name I do not remember. I do not have any proof for the same or the price of purchase. I had made payment of the said purchase of jewellery from the money received from the sale of my agricultural land and I had also taken some loans from my friends and family. The names of my friends from whom I had taken loan for the aforesaid purpose include Sushma Gupta, Ritu Barua and Anupama Barua from whom I had taken Rs. 10,00,000/-, Rs. 5,00,000/- (approx) and Rs. 5,00,000/- (approx) respectively. However, these loans were in the form of gold and not hard currency.
Therefore, the claim that the available amount/capital was used for purchase of jewellery and its subsequent supply to the accused becomes susceptible to doubt.
26. Once the accused rebuts the presumptions in favour of the complainant with respect to existence of enforceable legal debt/liability by creating doubt over the version put forth by the complainant/fulfilment of all the essential ingredients of the offence and/or challenging the financial capacity of the complainant, she raises a probable defence in her favour. Thus, in line with the mechanism of the reverse onus clause, once probable defence is raised, the onus shifts upon the complainant and it becomes incumbent upon him to furnish cogent evidence in support of his case/discharge his burden to prove his financial
23 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:19:57 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 capacity. Herein, the existence of enforceable liability/debt is rendered improbable as evident from the admission of the complainant himself as discussed aforesaid. Therefore, on this count, the version of the complaint fails and existence of liability is rendered improbable based on the material available on record.
27. The legal position on this point has been delineated elaborately by a Division Bench of the Hon'ble Supreme Court in Basalingappa vs Mudibasappa26 noting the discrepancies in the complaint and the cross-examination of the complainant along with the fact that the complainant had admitted advancing loan to other people, in addition to the accused and "..there was a burden on the complainant to prove his financial capacity." 27 The court held as under:
Elaborating further, this court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant-accused cannot be expected to discharge an unduly high standard of proof.28 Thus, during the period from 2009 to November, 2011, amount of Rs 18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity...
...During his cross-examination, when financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.29 We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs 6 lakhs given to the accused, within 02 years, amount of Rs 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.
26 Basalingappa vs Mudibasappa (2019) 2 SCC (Cri) 571. 27 Para 24 and 26.
28 Para 20.
29 Para 24 and 25.
24 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:20:15 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 The observation of the High Court that trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence.30
28. On the point of financial capacity of the complainant, a varying opinion has been expressed by another Division Bench of the Hon'ble Supreme in a case titled Rohitbhai Jivanlal Patel vs State of Gujarat.31However, the case is distinguishable on facts since the complainant's version was corroborated by the unimpeached testimony of an independent eye- witness;32 signature of the accused on the stamp paper was admitted33 and, unlike the instant case at hand, the complainant in the aforesaid case was not unemployed and/or disowned without any means to substantiate claims to significant wealth for proving the capital to commence a jewellery business. Further, the ratio held in Basalingappa is in consonance with the ratio held by the Hon'ble Supreme Court in K Prakashan vs P K Surendran34wherein, noting the fact that the complainant was not a man of means,35 the Hon'ble Apex court upheld the Ld. Trial Court's acquittal order reiterating the standard of proof applicable in a cheque dishonour case as well as the susceptibility of complainant's financial capacity when it is admitted that complainant himself borrowed from others. It was held thus:
30 Para 28.
31 2019 (5) SCALE 138.
32 Paras 18.2 and 18.3.
33 Para 18.6.
34 2008 (1) SCC 258.
35 Para 14.
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SINGH KASHYAP Date: 2022.08.30 21:20:34 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 It is further not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.36
29. In the present case, after considering the totality of the facts and circumstances along with the evidence available on record, it becomes clear that the accused has successfully raised a probable defence in her favour by rebutting the assumed presumptions in favour of the complainant (keeping in mind that the second ingredient has not been fulfilled). Whereas, the complainant has not been able to fulfil all the essential ingredients of the offence i.e failed to rebut the onus shifted upon him vis-a-vis proving his financial capacity. On account of the aforesaid, the complaint cannot be sustained in the eyes of law. No justification is forthcoming with respect to the failure of the complainant to bring on record cogent evidence in his support. On the contrary, glaring loopholes in the version of the complainant do not inspire any confidence before the court; his testimony rests on shaky grounds and his version cannot be relied upon. The complainant has not approached the court with clean hands and has failed to satisfy the second ingredient essential for the prosecution of complaint under Section 138 of the Act.
Therefore, the complainant has failed to successfully prosecute his complaint under Section 138 of the Act.
Decision
30. In view of the aforementioned discussion, the accused has successfully raised a probable defence on the touchstone of 36 Para 13 and 20.
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SINGH KASHYAP Date: 2022.08.30 21:20:55 +05'30' Anupam Sharma vs Namita Sharma CC 762/2013; 46929/2016 preponderance of probabilities and the complainant has failed to prove the existence of legally enforceable liability/the second essential ingredient of Section 138 of the Act. Accordingly, the complaint is dismissed and the accused is hereby acquitted of the charge of the offence punishable under Section 138 of the Act.
ORDER: Acquitted Accused shall furnish personal bond and surety bond as per the mandate of Section 437A CrPC upon which previous bonds shall be cancelled and previous surety shall be discharged.
Announced in Open Court on 30.08.2022.
(This judgement contains 27/Twenty Seven signed pages.) AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2022.08.30 21:21:25 +05'30' Aishwarya Singh Kashyap) MM-03, Mahila Court, Shahdara/KKD Courts, Delhi 30.08.2022 (Earlier Aishwarya Singh Kashyap) MM/NI Act(East)/KKD Courts/Delhi) 27 of 27