Delhi District Court
Monika Sabharwal vs Rajni Bagga on 27 April, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE (NI04), WEST, TIS
HAZARI COURTS, NEW DELHI (Presided Over by SH. KARANBIR SINGH)
Case No. Ct. Cases/696/2019
Unique Case ID No. DLWT020013712019
In the matter of :
Monika Sabharwal ...Complainant
VS.
Rajni Bagga ... Accused
Name of Complainant : Monika Sabharwal
Name of Accused : Rajni Bagga
Section 138, Negotiable Instruments Act,
Offence complained of or proved :
1881.
Plea of Accused : Not Guilty
Date of Filing : 24.01.2019
Date of Reserving Order : 28.03.24.
Date of Pronouncement : 27.04.24.
Final Order : Acquitted.
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.04.27
14:52:49
+0530
1/13
Argued by: Sh. Satish Chand Sharma, Ld. Counsel for the complainant.
Sh. OM Prakash Shukhla, Ld. Counsel for the accused.
A. FACTUAL MATRIX
1. The present complaint has been filed under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter "NI Act") by Ms. Monika Sabharwal (hereinafter "complainant")
against Sh. Rajni Bagga (hereinafter "accused").
2. The substance of allegations, as contained in the complaint, are as follows:
1. That the accused Smt. Rajni Bagga is one of the friend of the complainant and the
complainant has visiting terms with her.
2. That the accused approached the complainant in the ist week of August, 2018 and
shown her urgent need of Rs.3,50,000/(Rupees Three Lac Fifty Thousand Only) and promise
to repay the same up to 315 October, 2018 without interest, hence the complainant felt the
urgent need of the accused and believing on the promise of the accused the complainant paid
Rs.3,50,000/ to the accused in the 1st week of August, 2018 foi a period of three months i.e.
up to 31.10.2018.
3. That in the last week of October, 2018 the complainant demanded the amount of
Rs.3,50,000/ from the accused as a period of three months was expired and the accused
requested the complainant to pay the same on 01.11.2018, accordingly the accused issued a
cheque of amounting Rs. 3,50,000/ bearing no.081101 dated 01.11.2018 drawn on Canara
Bank, Tagore Garden Branch, New Delhi.
4. That on 02.11.2018 the complainant made contact to the accused and informed her
that she is going to put the aforesaid cheque for clearance before her bankers on 02.11.2018,
hearing these the accused requested the complainant to put the aforesaid cheque for clearance
before her bankers on 12.11.2018 instead of 2.11.2018 and promised her to make
arrangement for clearance of the aforesaid cheque in her account positively, believing on the
request and promise of the accused the complainant agreed to put the aforesaid cheque for
clearance before the bankers of the accused on 12.11.2018.
5. That the complainant put the aforesaid cheque for clearance before the bankers of the
accused on 12.11.2018 through her bank i.e. Axis Bank Limited, Shadley Public School,
Rajouri Garden Branch, New Delhi but the same returned back uncleared from the bankers of
the accused on 14.11.2018 with the remark "Funds Insufficient", accordingly the cheque
returning memo was issued by the bankers of the complainant on 14.11.2018 showing the
reason of bouncing the cheque i.e.
"Funds Insufficient".
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.04.27
14:53:05
+0530
2/13
6. That after receiving back the aforesaid cheque uncleared from the bankers of the
accused, the complainant made contact to the accused and requested her to pay the amount of
Rs.3,50,000/against the aforesaid bounced cheque either in cash or through bank draft but
the accused again requested the complainant to put the aforesaid cheque again for clearance
before her bankers on 27.11.2018 and promised to make arrangement for clearance of the
aforesaid cheque in her account positively, believing on the promise of the accused the
complainant agreed to put the aforesaid cheque for clearance before her bankers on
27.11.2018.
7. That the complainant put the aforesaid cheque for clearance before the bankers of the
accused on 27.11.2018 through her bank i.e. Axis Bank Limited, Shadley Public School,
Rajouri Garden Branch, New Delhi110027 but the same returned back uncleared again
from the bankers of the accused on 28.11.2018 with the remark " Fund Insufficient",
accordingly the cheque returning memo was issued against the aforesaid bounced cheque to
the complainant from her bankers on 28.11.2018 showing the reason of bouncing the cheque
i.e. "Funds Insufficient".
8. That after receiving back the aforesaid cheque uncleared from the bankers of the
accused the complainant approached the accused from time to time and demanded the
amount against the aforesaid bounced cheque. But the accused avoided to make payment
against the aforesaid bounced cheque with false promises and paid nothing to the
complainant up to 24.12.2018, hence the complainant served a legal notice upon the accused
and accused on 24.12.2018 through her counsel SH. ARUN NAGAR ADVOCATE, office at
A335, Ground Floor, Defense Colony, New Delhi 110024 wherein the complainant called
upon the accused in the following manner: "I hereby call upon you the addressee to make
payment against the bounced cheque bearing no. 081101 dated 01.11.2018 amounting Rs.
3,50,000/ drawn on Canara Bank, Tagore Garden Branch, New Delhi through bank draft
within a period of 15 days on receipt of this notice, failing which my aforesaid client will be
at liberty to file criminal proceedings against you the addressee under the provisions of
section 138/142 of Negotiable Instrument Act, entirely at your risk and cost, you are also
called upon that my aforesaid client will also be at liberty to file suit for recovery of the
aforesaid amount along with interest @ 24% w.e.f. from the service of the notice till its
realization, entirely at your risk and cost which you please note. Copy kept". The aforesaid
notice was duly served upon the accused but the accused failed to make payment of
amounting Rs.3,50,000/ to the complainant within the stipulated period of 15 days given in
the aforesaid notice as well as till date despite of repeated demands and requests made by the
complainant to the accused from time to time, hence this complaint case.
9. That the accused failed to make payment against the aforesaid bounced cheque till
date, hence is liable to be prosecuted under the provisions of section 138/142 of Negotiable
Digitally
signed by
KARANBIR 3/13
KARANBIR SINGH
SINGH Date:
2024.04.27
14:53:18
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Instrument Act along with provision section 420 of IPC and is liable to be punished
accordingly. That the aforesaid friendly loan of amounting Rs. 3,50,000/ was taken by the
accused from the complainant without interest in the 15 week of August, 2018 with the
promise to repay the same up to 31st October, 2018, accordingly the loan amount was paid to
the accused by the complainant at her residence i.e. RGB552, DDA Flats, Raghubir Nagar,
New Delhi 110027 and the account of the complainant is maintained at Axis Bank, Shadley
Public School, Rajouri Garden, New Delhi 110027 which lies under the jurisdiction of this
Hon'ble court, Hence this Hon'ble court has jurisdiction to try and entertain the present
complaint of the complainant.
10. That the accused issued cheque bearing no. 088101 dated 01.11.2018 amounting
Rs.3,50,000/ drawn on Canara Bank, Tagore Garden Branch, New Delhi 110027 and the
complainant firstly put the aforesaid cheque for clearance before the bankers of the accused
on 12.11.2018 and the same was received back uncleared from the bankers of the accused
with remark "Funds Insufficient" and cheque returning memo was accordingly issued from
the bankers of the complainant on 14.11.2018. The complainant again put the aforesaid
cheque for clearance before the bankers of the accused on 27.11.2018 and the same received
back uncleared from the bankers of the accused and accordingly the bankers of the
complainant issued cheque returning memo to the complainant showing the reason of
bouncing the cheque is " Funds Insufficient", when the accused failed to make the payment
against the aforesaid bounced cheque up to 24.12.2018 despite of repeated demands and
requests made by the complainant, the complainant served a legal notice dated 24.12.2018
upon the accused through her counsel SH. ARUN NAGAR, ADVOCATE calling upon her to
make payment against the aforesaid bounced cheque within a period of 15 days on receipt of
the notice, the notice was duly served upon the accused but the accused failed to make
payment to the complainant till date, hence the present complaint is being filed by the
complainant within the stipulated period provide under law and the same is within time.
B. PRESUMMONING EVIDENCE & NOTICE
3. Presummoning evidence was led by the complainant and on finding a prima facie case,
the accused was summoned to face trial vide order dated 03.04.2019. Notice against the
accused was framed on 19.12.2019. She took the following plea of defence at the stage of
framing of notice:
A probate case was going in the Delhi High Court between accused and the husband
of the complainant. Property documents of complainant were submitted as security in that
case. For the above purpose, the cheque in question was handed over to the husband of the
complainant, but the cheque in question was blank signed cheque. After making the
correction in the registry of the complainant, I made a demand for repayment of the cheque
amount but the complainant denied. Thereafter, my husband expired on 21012019, then I
got busy in daily household work and forgot to ask for the payment. Now, complainant is
denying to make the payment. Registry has been returned. I have no liability towards the
complainant.
Digitally
signed by
KARANBIR
4/13
KARANBIR SINGH
SINGH Date:
2024.04.27
14:53:27
+0530
She admitted the signatures on the cheque in question.
C. COMPLAINANT'S EVIDENCE
4. During the trial, the complainant has led the following oral and documentary evidence
against the accused to prove its case beyond reasonable doubt:
Oral & Documentary Evidence
Ex.CW1/1 The cheque in question
Ex. CW1/2 & Ex. CW1/3 Return memos dt. 14.11.2018 and 28.11.2018.
Ex.CW1/4 Legal demand notice
Ex.CW1/5 & Ex. CW1/6 Postal receipt and tracking report
Ex.CW1/8 Evidence by way of affidavit
CW1 Testimony of complainant
D. STATEMENT OF ACCUSED
6. Thereafter, before the start of defence evidence, in order to allow the accused to
personally explain the circumstances appearing in evidence against him, his statement under
Section 313 CrPC was recorded without oath. In reply, the accused denied all the allegations
against him. The accused submitted the following in his statement under section 313 CrPC:
I know the complainant for 1012 years. I did not take any loan of Rs.
3,50,000/ from complainant.
The signatures on the cheque is mine. The other particulars have not been
filled by me.
However, the address is my correct address.
A probate case was going in Delhi High Court b/w the accused and the
husband of the complainant. Property documents (registry) of complainant
were kept as security in that case. For the above purpose, the cheque in
question was handed over to the husband of the complainant. The cheque in
question was a blank signed cheque. I never gave the cheque in question to the
complainant. In March 2018, the registry was released from the Hon'ble High
Court. Thereafter, I asked for return of my cheque but the complainant kept
delaying on one pretext or the other. The complainant also stopped talking to
me. I got to know about the present case when I received the court notice. I do
not owe any legal liability towards the complainant. The complainant has filed
a false and frivolous case against me.
7. The accused led her DE and she exhibited the copy of order dt. 21.11.2013 as Ex.
CW1/1. The copies of order dt. 05.09.2014 and 16.03.2018 as Ex. DW1/2. She further
exhibited order dt. 20.03.2018 in the probate case no. 77/2012 as Ex. DW1/3. She exhibited
Digitally
signed by
KARANBIR 5/13
KARANBIR SINGH
SINGH Date:
2024.04.27
14:53:35
+0530
the counterfoil of her passbooks and her bank statements as Ex. DW1/4 to Ex. DW1/7. She
also examined the bank witness who brought the status of cheque leaves issued to her which
was exhibited as Ex. DW2/1 alongwith her bank statement. Thereafter, the matter was listed
for final arguments. After listening to final arguments from both sides, the matter was
reserved for pronouncement. I have heard the learned counsels on both the sides and have
given my thoughtful consideration to the material appearing on record. Ld. Counsel for
complainant also filed written arguments and relied upon following judgments:
(a) K. Bhaskaran Vs. Shankaran Vaidhyan Balan, appeal (Crl. No. 1015/1999) (SC)
(b) Shripati Singh Vs. State of Jharkhand, LL 2021 SC 606
(c) P.Rasia Vs. Abdul Nazer, Crl. Appeal NO. 1233/1235/2022 (SC)
(d) Sumeti Vij Vs. M/s Paramount Tech Fab Industries (AIR 2021 SC 1281)
(e) M/s Kalamani Tex and Anr. Vs. P. Bala Subramanyam Crl. Appeal No. 123/2021
(SC)
I have gone through the above judgments and I have given my due consideration to
the written arguments filed by the complainant.
E. INGREDIENTS OF OFFENCE UNDER SECTION 138 OF NI ACT
8. Before dwelling into the facts of the present case, it would be pertinent to discuss the
legal standards required to be met by both sides. In order to establish the offence under
Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence,
as highlighted below:
• The cheque was drawn by a person on an account maintained by him/her 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;
• The cheque was drawn by the drawer for discharge of any legally enforceable debt or
other liability;
• 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;
• A demand of the said amount has been made by the payee or holder in due course of
the cheque by a notice in writing given to the drawer within thirty days of the receipt of
information of the dishonour of cheque from the bank.
• The drawer fails to make payment of the said amount of money within fifteen days
from the date of receipt of notice.
9. In addition to the above, the conditions stipulated under Section 142 NI Act have to
be fulfilled.
Digitally
signed by
KARANBIR 6/13
KARANBIR SINGH
SINGH Date:
2024.04.27
14:53:42
+0530
10. ANALYSIS OF VARIOUS INGREDIENTS OF THE OFFENCE
• The complainant has proved the original cheques, Ex.CW1/1, which the accused has
not disputed as being drawn on the account of the accused. She has also admitted his
signatures on the cheque.
• The cheque in question was returned unpaid vide Ex. CW1/2 and Ex. CW1/3. The
same has also been proved by the complainant. As per Section 146 of NI Act, Bank's slip is
prima facie evidence of proof of dishonor. The accused has not disputed the same.
• The complainant has proved on record legal notice Ex. CW1/4. The accused has
admitted that the address mentioned in the legal notice in her correct address during her
statement u/s313 Cr.P.C. Further, she has mentioned the same address on her vakalatnama
and her bailbonds. Thus by virtue of presumption u/s 27 General Clauses Act RW 114 IEA,
the legal notice is deemed to be served upon her. In fact during her crossexamination, she
has admitted that legal notice was received by the husband as she had gone to Vaishnodevi.
Hence, the legal notice stands proved. Further, in CC Alavi Haji Vs. Palapetty Muhammed
& Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that " 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 u/s. 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 from the court alongwith the copy of the complaint u/s. 138 of the Act, cannot
obviously contend that there was no proper service of notice as required u/s. 138, by
ignoring statutory presumption to the contrary u/s 27 of the General Clauses Act and Section
114 of the Evidence Act".
• The fact that the payment was not made within 15 days of the receipt of the legal
notice is also not disputed. As such, on the basis of the above, the first, fourth and fifth
ingredient of the offence under Section 138 NI Act stands proved against the accused.
11. The controversy in the present complaint case pertains to second ingredient.
PRESUMPTIONS UNDER NI ACT
12. As far as the proof of second ingredient is concerned, the complainant is required to
prove that the cheque in question was drawn by the drawer for discharging a legally
enforceable debt. As per the scheme of the NI Act, once the accused admits signature on the
cheque in question, certain presumptions are drawn, which result in shifting of onus on the
accused.
13. The combined effect of section 118(a) NI Act and section 139 of the NI Act is that a
presumption exists that the cheque was drawn for consideration and given by the accused for
the discharge of debt or other liability. In Hiten P. Dalal v. Bratindranath Banerjee (2001)
6 SCC 16), their Lordships of Hon'ble Supreme Court observed as follows:
Digitally
signed by
KARANBIR
KARANBIR
SINGH
SINGH
Date:
7/13
2024.04.27
14:53:49
+0530
Because both Sections 138 and 139 require that the Court "shall presume" the liability of the
drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of
Madras vs. A. Vaidyanatha Iyer AR 1958 SC 61, it is obligatory on the Court to raise this
presumption in every case where the factual basis for the raising of the presumption had
been established. "It introduces an exception to the general rule as to the burden of proof in
criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a
presumption of law, as distinguished from a presumption of fact which describes provisions
by which the court "may presume" a certain state of affairs. Presumptions are rules of
evidence and do not conflict with the presumption of innocence, because by the latter all that
is meant is that the prosecution is obliged to prove the case against the accused beyond
reasonable doubt.
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."
Further, it has been held by the Hon'ble Apex Court in Rangappa v. Sri
Mohan, (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act
includes the presumption of existence of a legally enforceable debt.
14. In order to discharge the aforesaid burden, it has been contended by learned counsel
for the accused that there are inherent inconsistencies in the version of the complainant, as
listed below, which lead to a probable defence in favour of the accused:
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.04.27 8/13
14:53:56
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Contention I That the complainant has not proved source of funds.
15. Ld. Counsel for the accused argued that the complainant has not proved her source of
funds and that she has not proved her financial capacity. The same was rebutted by the Ld.
Counsel for the complainant on the ground that the accused has admitted the cheque in
question and hence the presumption is already in the favour of the complainant and it is the
onus of the accused to rebut the presumption.
16. It is a settled position of law that showcasing that complainant did not have adequate
financial capacity to lend money to the accused amounts to a probable defence and can help
in rebutting the presumption that is accrued to the benefit of the complainant in cheque
dishonour cases. The relevant case laws in this regard have been reproduced hereunder for
reference:
(a) In Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : AIR 2019 SC 1983, the
Hon'ble Supreme Court has observed as follows:
During his crossexamination, 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". (emphasis added)
(b) In APS Forex Service Private Limited v. Shakti International Fashion Linkers :
AIR 2020 SC 945, the Hon'ble Supreme Court has clarified and explained the issue as
follows:
Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused
on the decision of this Court in the case of Basalingappa (supra), on going through the said
decision, we are of the opinion that the said decision shall not be applicable to the facts of
the case on hand and/or the same shall not be of any assistance to the accused. In that case
before this Court, the defence by the accused was that the cheque amount was given by the
complainant to the accused by way of loan. When the proceedings were initiated under
Section 138 of the N.I. Act the accused denied the debt liability and the accused raised the
defence and questioned the financial capacity of the complainant. To that, the complainant
failed to prove and establish his financial capacity. Therefore, this Court was satisfied that
the accused had a probable defence and consequently in absence of complainant having
failed to prove his financial capacity, this Court acquitted the accused. In the present case,
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.04.27 9/13
14:54:02
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the accused never questioned the financial capacity of the complainant. We are of the view
that whenever the accused has questioned the financial capacity of the complainant in
support of his probable defence, despite the presumption under Section 139 of the N.I. Act
about the presumption of legally enforceable debt and such presumption is rebuttable,
thereafter the onus shifts again on the complainant to prove his financial capacity and at that
stage the complainant is required to lead the evidence to prove his financial capacity, more
particularly when it is a case of giving loan by cash and thereafter issuance of a cheque.
(emphasis added)
(c) The crux of the aforesaid decisions of the Hon'ble Supreme Court has been
summarized by the Hon'ble Kerala High Court in Sunitha v. Sheela Antony, 2020 SCC
OnLine Ker 1750
In my view, the crux of the decisions referred to above is the following :
The complainant has no obligation, in all cases under Section 138 of the Act, to prove his
financial capacity. But, when the case of the complainant is that he lent money to the accused
by cash and that the accused issued the cheque in discharge of the liability, and if the
accused challenges the financial capacity of the complainant to advance the money, despite
the presumption under Section 139 of the Act, the complainant has the obligation to prove his
financial capacity or the source of the money allegedly lent by him to the accused. The
complainant has no initial burden to prove his financial capacity or the source of the money.
The obligation in that regard would arise only when his capacity or capability to advance the
money is challenged by the accused. (emphasis added)
It has been held in the case of Kulvinder Singh v. Kafeel Ahmad 2013 SCC OnLine Del
34 of Hon'ble High Court of Delhi as well as K. Prakashan v. P.K. Surenderan 2008 (1) SCC
258 that acquittal is proper on prosecution in complaints under section 138 of NI Act, 1881
where complainant is not able to show the source of friendly loan or solvency for the same. In
other words, it was held that presumption of cheques gets dislodged where complainant is not
able to give source of the amount loaned to accused.
Hon'ble Delhi High Court in Sheela Sharma v. Mahendra Pal 2016 SCC OnLine Del 4696
held that:
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signed by 10/13
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.04.27
14:54:11
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"31. In cases where the Complainant claims to have advanced a friendly loan in cash, and
where the transaction of loan is not evidenced by any other documentary or other reliable
evidence, no doubt, the aspect whether the availability of funds in cash with the
Complainant/lender, and its advancement as loan to the Accused have been reflected in the
income tax returns of the Complainant/lender, or not, become relevant. If, the availability of
funds, and the loan transaction itself is not so reflected, that factor is taken note of by the
Court as relevant to hold that the presumption under Section 118 and 139 of the NI Act
stands rebutted. However, these considerations would not be relevant, where loan
transaction itself is otherwise established, either through documentary evidence such as, a
receipt or a loan agreement, or acknowledgement executed by the Accused, or by oral
evidence of an independent witness who is found to be credible". (emphasis supplied).
17. In the present matter, the complainant has advanced Rs. 3.50 lakhs to the accused.
During the crossexamination of complainant, the complainant admitted that she made a
payment in cash. Hence, when her financial capacity was questioned, it was her onus to prove
the same. During the crossexamination dt. 23.12.2021, she deposed that she is a housewife
and she does tuition work. She further deposed that she earns around 3000035000/ per
month from the said tuition work. She deposed that she has one son who is aged about 17
years and is still in class 12th. She further deposed that her family is dependent on her. She
stated that she has not filed any ITR for her income. She further deposed that she did not
execute any written agreement. She deposed that she has not withdrawn the aforesaid amount
from her bank account. She testified that she did not arrange money from any other relative.
Thus, in the absence of showing the loan in ITRs, the complainant has not been able to
establish the loan transactions itself. It is quite unbelievable that a house wife earning Rs.
30000/ to 35000/ per month could advance a huge amount of Rs. 3.50 lakhs to another
person especially when her family is dependent on her. It is well known that the standard of
living in Delhi is High and accordingly the accused has been successful in raising doubt in
the mind of the Court that the complainant might not have sufficient funds at her disposal to
advance such an amount to the accused. Accordingly, the present contention stands decided
in the favour of accused and against the complainant.
ContentionII That the cheque in question was given to the husband of complainant in
the year 2016.
18. Ld. Counsel for the accused argued that the cheque in question was not given to the
complainant in the year 2018 as mentioned in the complaint but it was given to the husband
of the complainant in the year 2016. It was submitted that a probate case was going on b/w
the husband of accused and her sistersinlaw. It was submitted that in the the said probate
case, the husband of complainant stood as surety for the accused's husband. It was further
submitted that when the health of husband of complainant suffered, he requested the accused
to give a cheque as security. It was further submitted that the cheque in question was handed
over in the year 2016 and never to the complainant. The said arguments was rebutted by the
Ld. Counsel for the complainant on the ground that if the probate case and its proceedings
were ended in the year 2014 then why the accused handed over the cheque in the year 2016.
Digitally
signed by
KARANBIR 11/13
KARANBIR SINGH
SINGH Date:
2024.04.27
14:54:21
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It was further submitted that the husband of accused could have given his own cheque but he
chose to him the cheque of the accused which is quite unusual. It was submitted that the
friendly relation b/w the parties are admitted and hence, the theory of the accused is an
afterthought.
19. Perusal of the record reveals that the accused took the same defence at the stage of
framing of notice, during the crossexamination of complainant, at the stage of framing of
statement of accused u/s 313 Cr.P.C. and during her defence evidence. Due suggestions were
given to the complainant during her crossexamination that the cheque in question was
handed over in the year 2016. It was further suggested that the cheque was not given for the
loan but was given as surety in the year 2016. During the defence evidence, the accused has
led evidence on all the suggestions given by her. It is admitted position b/w both the parties
that the husband of complainant stood as a surety for the husband of accused in the probate
case. In fact the document/ order sheets of probate case have not been questioned by the
complainant during the crossexamination of accused on 07.07.2023. Hence, the aforesaid
fact stands proved.
20. The accused has also led evidence to show that the cheque in question was issued in
the year 2016. She has further brought on record Ex. DW1/4 to show that in the year 2018
she was issued a cheque book bearing different series of cheques and hence the cheque
belonging to the cheque book in the year 2016 could not have been issued in the year 2018.
Ld. Counsel for the complainant argued that the DW2 has clearly deposed in his cross
examination that even when a new cheque book is issued to the customer, some blank
cheques remain with the customer. However, the perusal of bank statement Ex. DW1/6 shows
that the accused has used the cheque bearing no. 081116 on 10.07.2017. The said cheque
bears the number which is after the cheque in question. The same indicates that the accused
could not issued the cheque bearing no. 081101 in the year 2018 whereas she would have
already used the cheque bearing no. 081116 in the year 2017. The same is not possible as it is
quite unbelievable to presume that accused would keep the cheque in question bearing no.
081101 with her so that she can give the same to the complainant in future but she would
already use the other cheques of the same series in the year 2017. Thus the aforesaid fact
raises an inference that the cheque in question could not have been issued in 2018. It leads to
probable doubt in the mind of the Court that the version of accused is probable on
preponderance of probability. It is pertinent to note here that the standard for accused to rebut
the presumption is only preponderance of probabilities. The accused has to show that her
version is probable. In the present matter, the Court is of the view that the accused has
successfully raised the probable doubt in the mind of the Court that her defence is probable
and that the cheque could have been issued in the year 2016 but it could not have been issued
in the year 2018. Accordingly, the argument advanced by the Ld. Counsel for the
complainant stands rejected and the present contention stands decided in the favour of
accused and against the complainant.
21. In Kumar Exports v. Sharma Carpets,(2009) 2 SCC 513], the Hon'ble Apex
Court had held as follows:
Digitally
signed by
KARANBIR
KARANBIR SINGH 12/13
SINGH Date:
2024.04.27
14:54:28
+0530
"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."
CONCLUSION
22. In conclusion, I am of the view that accused has been able to raise probable defence in
the present case.
23. Resultantly, the complaint of the complainant is dismissed and the accused,
Ms. Rajni Bagga is hereby acquitted of the offence under Section 138 of the Negotiable
Instruments Act, 1881.
24. This judgment bears 13 pages and each page bears my digital signatures.
Judgment be uploaded on the website forthwith.
Pronounced in open court.
Digitally signed by
ORDER : Acquitted.
KARANBIR KARANBIR SINGH Date: 27.04.24.
SINGH Date: 2024.04.27 14:55:06 +0530 (SH. KARANBIR SINGH) Metropolitan Magistrate West DELHI 13/13