Delhi District Court
Rm Group Of Education vs Kakoli Palit on 19 February, 2024
iN THE COURT OF Prowse sl STRATE ~ Ol, NEACT, DIGITAL Si, TIS NAZART COURTS, DELHI 'Presided by : Sh. Gaurav Katariya MRS. RAROLT PALTT cos Areused a) OC number af the case: By ONE af She case: 2}. Dare of inetinitien a) Narne, parentage and ACERS ¢ Conia inanr i} Offence complained AS OPH OEP f DEAT HIGOAR OE SoS. S021 BLM Group of Education, Regd. Oleg at N70, Sectom63, Naida, Evstrict ~ Gautam Budh Nagar ra} Bharth, S/o Sh. OMip Kumar Yada, Auther! zed | Represe UAVS, Ro 108.8. Near Shiv Mandi, XN v Village, Sector-7, Rohini, Nath Wast District, Esdhi-7. LOVES warking as Business Associates af - RM. Group of Echuctiags having its Regd. Office at W790, Sertang3. Naida, [Netrict ~ Gantam Buel 201301, -
Msc RaWolt Bal Wie Sh. pislale Samar Palit Wo G1290, Chittaranjan Park, Near Che snderiok Cinema, Delhi.
PSs NEA am os Conaplainant mG SHOE | Rs L0G, 000% hj} Bisse of dus accused : Plearled not guilty Agquitted Binalosder-
BRIE' STATEMENT OF PACTS POR THE DECISION Vide (iis fuderent, [ shall decide the present complaine fled under Section ISS of the Negntable Instruments Act, 188i (hereinafter referred ta as 'NY Act') by the complainant against the accused, Factual Background Shom af unnecessary details, the facts of the case are chat the complainant is dealing In the business of providing carnieradmission counseling. The accused and her husband approached the complainamt oon dated O2.UL2E for carrierfadmission counseling regarding aimission in MBES course and the complainant had promised to give bis services on the cost of Rs. 1, SQ.000% as service charge in which accused has deposited a sum of Rs.50,000/- in cash and Rs. 1,00,000% through cheque in question drawn on State Bank of India. That the complainant presented the cheque in question for encashment at HCL Bank, Tilak Nagar, New Delhi Branch (oe. within che jurisdiction of this court) on 22UN.202] and same wes dishonoured with the remarks "payment stopped by drawer" vide refirning memo dated 25.01.2021. The cheque in question got OF No SF bG dishonoured and remained tupaid even after issuance of legal demand mofice deted 24.02. 2021. Legal demand notice was issued to the accused In regular course, however, he failed to pay the total cheque amount within 1S days thereof and hence the present Trial & Proceedings before the Court Upon @ prime face censileration of pre-suammoning evidence, cognl eance of offence under section (88 Ni Act was taken and the actised was surnmoned. Thereafter, separate notice explaining the gccusagion was put to the accused under section 257 of The Cade f Criminal Procedure, 1973 (hereinafter referred to as "Cy BO? Fito e Pag beac °% which she pleader not guilty and claimed trial Ar this stage following aspects were admitted/denied by her:-
Si. Issuing the cheque in question - Admitted. 3.2. Receiving the legal demand notice ~ Denied 3.3. Discharge of legal Hability qua accused with respect to "sais os Denied In his defence the accused bas stated that she understand the accusation explained over to her from the complaint in respect of the offence ander section 138 NL Act. $ is stated by the accused that che does not plead guilty. His stated by the accused that the atic tn question bears her signatures. It is stated by the accused that she does not remember if she received the legal demand notice in question from the complainant, however, the same bears hey correct address. 1 {9 stated by the accused that the ae Ife queadion belongs to her account. ft is stated by the accused that they had approached the complamant for carrler counseling for college admission of her daughter Ie is stated by he accused thar it was a BITS 08h POM. Graug of Bidesgion we. maka Pair Page agreed that she hadi fo pay Rs SOOO0)~ in advance and Rs.i Lac after the Gullege gduiission is secured in terms of the agreement entered into between them. ft is stated by the accused that as per the agreement, (ere was @ term that complainant would be entitled tc fees af Re] Lac only if admission is secured in the colleges which are mentioned in the agreement Tt is stated by the accused that complainant tald them to give blank signed post dates cheque for ey.
Raid Lac in advance. Tf is stated bh y TOS arcuise d that complainant was nat able to secure college adsrission as per the agreement. 1 is stated by Ue accused thet finally, they got admission for her daughter in Sharda University which was aot mentioned in the agreement, It is stated by the accused chat complainant has failed to discharge the obligation as per the agreernent hetween them and misused the cheque In question. If is stated by the accused thet subsequently, she Med a police complaint at CR Park Police Suation wherein representative af complainant also visited and presented an agreement wherein name af Sharda University was also mentioned. ft is stated by the accused that the said agreement is a forged document and was not executed by them.
Thereafter, she was granted an opparranity to c ross-examine the "qmplainant under section 14502) NI Act. The complainant was examined as (W-1 and he relied on pre- ummoning evidence as post summoning evidence Le on evidence by way of affidavit and on the following documents + ae Jo Ex. CW t true cupy of Board Resolution, De. Ex, CW/2 the original cheque bearing No.G8es7s dated 22.01 2021.
So, Ex. COWS bank Kreturaing menig dated 25.01 2021. S.4, Ex CWl/4 legal demand notice.
on athe Ex.CWLS postal receipts and Ex.CW1/G tracking report, 5.8.
Ex. CWA be. the evidence by way of affidavit wherein Mark-X is signed ly complainant as pre- ss summoning evidence, & Thereafter, CAW+1 wes crosa-esarmined, wherein he has sy rom ae that the complainant has complete knowledge about the present case. Further, he has stated thet he has not Hled the original copy af the said resolution an record. Further, he has no knowledge whether the affidawi was made. Further he does net rementher that the original agreement between the complainant and the Dh accused is available with the company or with the accused, The accuse) was also cross-examined regarding the document which re was exhibited as Ex. CW UAT (OSR) and was asked whether the name of the Sharda University not mentioned in the agreement ami the complainant had replied in the affirmative. it was also staid in the cross-examination by the complainane thar a complaint dated 12.01.2021 was fled by the accused against the complainant's contpany for cheating forgery and fabrication. The complainant has also accepted that the complainant company do Bee * not have any contract with the Sharda University for admission a purpose as they only councl the stents and help ther in securmpe adimssion in Sharda University aa per their marks and merit, bis fuather pertient i mention that it has been stated chat 'the above mertioned fact is not mentioned in the agreement in CICS HLH, CENG AFUE BUM Grnun GY Edncahin ye, Rake Padg Pane fos at Py PR Q ak Vhereall Her 9 STAR ement of the accused ander section 213 CrP wes She opted to lead defence evidence, Gly feu examined herself wherein the accused has simi ties that the present case has been filed against the accused only to estat money fram her The accused further stated that the c cheque SShUN WHS giver to Complainant to arrange the admission of her daughter in a good college as per the mdleges mentioned in the agreernent. Thereafier, the accused was a fuly cross-examined by the Ld. Counsel for che complainant wherein the accused has submitted that the accused came in touch with the complainant campany forthe purpose of her daughter's admission in the year 2020. It is further stated thar the complainant promised to accused that they will secure the admission of her danghter in either of the colleges mentioned in the agreement dared 02.11.2090. Furthermore, the accused has placed on record the original letter af agreement siened berween the parties, Written submissions fram both counsels have been Med and duly reviewed. T shall be discussing the written arguments advanced hy the Ld. Counsel for the complainant, which are as follaws:-
if it submitted by complainant that the service of counselling was provided to the accused and as per the service, counsels al ack vanced to che accused, the accused secured admission/seat in Sharda University for requisite course {M BBS). itis further submitted by Id. Counsel for the complainant that te aacused was to pay Rs 150,000. for counsel: ne cut of which Rs. SU,000.6 was given in advance and Rs.1 Lekh WHS TO be paid after the arlmission af the candidate, Howey er, acCLSed intentionally got the che que dishonoured with the reason GUND SGA RUM. Group dl Eduoation we. Mako® Pati Page ne.8. of S ee Qs ee) e "Payment Stouped by Drawer? vide reuming memo dated ioe. BS OWES, itis Turther submitied by Ld. Counsel for the complainant that had got cohvured copy of the agreement Le.
x led the court, praducing if as original As per para 14 of written agreement filed by complainant, the exhibited decument Le. Ex Ww xX] is forged and fabricaied and also caloured photo of agreement and not the original one. Rois funher contended that accused hed submited the agreement Le. Ext WI/X1 after ahkeration and deletion af parafline 4 of said agreement which is related to Sharda UNversity, Now, Ishall be discussing the written arguments advanced by the Ld, Counsel for the eecused, which are as follows:-
{QD Te has been submitted by Ld Counsel for the accused that the proceedings u/s 136 NI Act can only be initieted if the cheque In question was given in discharge of legally recoverable debt or | Tegal Habliny, however, in the present case, the complainant has received the cheque in question for securing the admission of a candidate in government college which Is per se iNegal. Ta substantiate this ansument, the original letter af agreement was exhibited as Ex CWT M1 on ied alongwith the application fledus 145 (2) NY Act on 15.02.2022.
dated OS.Q8 2022. which was ff TQ.2 {0 is further submitted by I ah fooursel for the accosed that as per the agreement, iC has been specifically written that SONG. SERS 1 PUM. Group of Bauostion ver Backot- et Pages? af ad vedvonce paymenl@oken money has been taken a admission of Aissher som ......" which has been father argued that the complainant ha ged fees from the accused "to get the adimissian" in int government colleges which was written In letter of fe agreement bohween the parties which was Ex CWLAI dated so O2.08. 2022 which is legal act and thus proceedings u's 138 NE Act for recovery of bribe money or fees for legal adinission is pal maintainable, 10.4 Ibis further antued fey Ld. Counse) for the accused that the complainant has Aled a forged) document Le. xerox copy of letter af agreement wherein the complainant has added the name of another callege other then the three colleges which were already mentioned in Mie letter of agreement.
1QS fb bes been further argued by Ld. Counsel for the accused that no original amended letter of agreement has been filed by the Complainant, 10.4 Further, i has been argued that the camplainant in his cross-enamination has sccented thet name of the fourth college Le. Sharda University is not mentioned in Ex. COWDAT. Moreaver, { has been accested by the complainant thal a camplaint dated TS.Q1L.2021 was fed against the complainant company for cheating forgery and fabricated documents.
ii. The judgments referenced by the learned counsels in their written OU NG SPA OsT RUA Group of Bduecation ws. Kakol Pall Agqe dal 2S been carefally examined, Legal Postion:
Belore oroceeding further to reflect ugon the defence and evaluation of evidence, the foremast check point is whether the ek.
facthaverred by the complainant fulfil the basic starutery requirement for constituting an offence under section 138 NI Act. Yo establish the offence under Section US6 of the NI Act against th AAS Se ee be the accused, the complainant must prove the following:
(i) The accused must have drawn a cheque an an account maintained by him ty a bank for payment of at:
a Cettain ammount of money to another person fram oat of ther account:
QQ The cheque should have been issued for the discharge, in whole or in part, of any debt ar other Hability:
iii} Thar cheque hes been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
(iy) That cheque is retumed by the bank unpaid, either because of the amcunt of mroney standing to the credit of the account is insufficient ta honour the cheque or thet if exceeds the ammount arranged to be pail fram. that account by an agreement made with the bay Page noe of 23 Y (vy) The payee or Ge holder in due course of che cheque makes a demand for th e payment af ihe said amount of money by giving 4 notice in writing, to the drawer of the cheque, within 30 days of the receipt of ifosmation by him from the bank regarding the return of the cheque as unpaid fv) The drawer of such cheque Sails to make payment af the said amount of money to (he payee or the holder In due course of the cheque within 15 deys of the receipt of the said notice.
Being cuanulative His only when all the aforementioned ingreclienis are satisfied that the person who had drawn the cheque can be deemed tp have caramitted aa affenee under section £2 aR NU Act.
Analysis & Discussion In The present case, the complainant has Aled on record the ee moms ay Ex. OW2. The accused has admitted issuance af the cheques in question and there is nc reason te doubt thelr authendclty. Therefore ingredient aumber () stands fulfilled in the present case.
The sald cheques were presented to the hank within a periad of three months fram the date on which Ip was drawn and were returned dishonoured for the reason "Payment Stepped by
- Drawer". The returning memos dated 25.01.2021 bearing the fact of dishonour of cheque in question have been exhibited by the complainant as Ex. CWS. The genuineness of the returning iE NG OPA EG? © BUA. Grong of Eouossiori ws, Rakot Patz Pag LO ah 28 memos is net disputed. Therefore ingredient number (8) & (iy) also stand fulfilled in iis race, The complainant then sent a legal notice, Ex CWI dated x 24.02.2021. The original postal receipt dated 26.02.2021 has been placed om recond as Ex CW1/4 elongwith a tracking ¢ apart ExCWS with remarks 'Hem delivered', The legal demand notice has not heen disputed that the legal demand notice was sent to the correct postal address as the address mentioned on the legal demand notice is the same as that available on hail bonds Yhersfore, in Ught of the decision of the Hon'hle Supreme Court of Indie in CC Alavi Haji v Palapetty Muhammad (2607) 6 SCC S55, the accused not having paid the ameunt of cheque in question within LS days of service of summmens to him, he cannot be allowed tm raise any grievance regarding the non-receiyt of the legal nevice, The above analysis shews that condition mumber iy) and ivf are alsa fulfilled in the present case.
neon:
Now, [oshall consider whether condition number (4) Le. the requirement thet the cheque in question have been issued for the discharge, in whale or in part, of any debt or other Nabi lity is fullied or not. Towards this end, if is apt is discuss that a Regofiable instrament including a cheque carries following oF resumptions in terms of Section 118 fa} and Section 139 af the Ni Ach . section LES of the NE Act provides :
" Presumptions as. fe negotiable instruments: Until the contrary is praved, the follawing presumptions shall be Gt MBPS RUM. oaiay of duration wa. Kakol atic Baaget qd consideration :- that every negotiable instrument de or drawn for consideration, and that every ume, when if has been accepted, indorsed, oar eransferre ed was accepted, indorsed, fed or transferred for considenatian:"
a9 of the NU Act further prewides as follows SESMOR your of holder. ic shall be presumed, fess the contrary is proved, that the holder of a chegue ecetved the cheque of dhe nature referred ta in Section 138 2 5 = $3 See yess She OE 3 rs Se for the discharge, In whole or in part, of any debt ar athe) Noblis"
Thus, the combined effect of Section 118f{a) and Section 139 of NI Act paises a presumption in favour of the holder of the cheque that he has received the same for discharge, fn whale or in part of any debt or ather labiliny. Therefore, existence of condition number (i) is also ssid against the accused. When the prestanpticn is raised In favour of the complainant, the burden is shifted on the accused i disprove the case of the omplaingnt by rebutting the presumption. The accused can pon on the scale of preponderance of probabilities, Lack af iin or a legally enforceable deh need not be praved beyond a reasonable doubt as is the general rule in criminal cases. The accused has to meke outa fairly plausible defence which is acceptable a the court, This the accused can do elther by leading Nis own evidence or by raising 'deule /demolishing the material or evidence brought on record by the complainant. Rellance can be placed on Basalingappa Mudibasappa (2019) § SCC 418.
Further, the court need not insist in every case that the accused should disprove the acm-existence of f consider suion and d ebt by OrNa § PALER % ; yond 7 * Lg, fe ae, Pet leading direct evidence because the existence of negative evidence {8 neither possible nar contemplated. Something which x is probable fas to be brought an record for getting the barden of proaf shifted fo the complainant. Te disprove the presumptions, the accumed should bring on record such facts and circumstances, upon consiteration of which, the court may elther believe that the consideration and debt did not exist or their non-existence was so probable that a pradent man would uncer the circumstances of the CASS, Cl LE the plea that they did not exist. The accused may iso rely upon circumstantial evidence to shift the burden again on the cumplainant [Refer: Bharat Barrel and Dein Manufacturing Campany v Amin Chand Pyarelal 1999 SlCOnline SC 186 and Kumar Experts v Sharma Carpets, S008 SCC Online SC 1885].
Also, the test of praportionallty should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannat be expected fo discharge an unduly high standard or pmof, Presumption of innocence as a hurnan right needs to be delicately balanced with dactrine of reverse burden contained {1 section 139 of NI Act. [Reference can be made to Rangappa v Soi Mohan GO SCC Online SC 583 and Krishna Janardhan Bhar v oy Dattatre ya G Hegde 2008 (4 SCC 54].
Having referred to the above judicial pronouncements, | shall now analyse the record in their Hehe In order to rebut the mandatory provisions, the accused has ralsed a defence that there is no fegal ¢ enforceable debe or Rabiliey to che Gi No STaSOSt RM. oun of Rebcating vo. Kaka Bait Page ng. iP obese Fas tune of Mie amount of the cheque in question against the accused and in fe of the complainant, Whether the accused has been able te rebut the presumption against REN.
en defence of the accused has been that she is under no Liability to pay any amount to the complainant. Further to sulstindate this arguments, the accused has placed on record the original agreement between the parties Le. Ex CWIX1. ib has been further submitted by the accused thar as per the complainary only in the cross-examination by the accused, the complainant has specifically stated that che name of the Sharda University is not mentioned in the legal original agremnent The extract from the cross-Eeamination of the complainant is being reiterated "fy is correct that it the said agreement Sharda Universit nmrentioned ", itis pertinent to mention that the complainant did not place the original or phetocopy of the letter of apreement with the complaint and only after once the application ws 145 (2) NI Act fled by the accused te cross-examine the complainant, the da xerox capy of revised letter of agreement, camdainant Ale wherein name of Sharda University College is being reflected. This casts a shadow of doubt on the story of the complainant. Purthermare, H has been averred by both te parties that hoth of ; i them have filed e forged copy of letter of agreement. Here, It is apropose to mention that accused has produced the original letter Of agreement document and same was exhibited by the Ld. Predecessor after seeing th e original, {have also carefully and ot Na BN ZOEL ALM Groug af Eduradionws, Kskoll Pale Page ng..4 at Rs patiently scrutinized both the documents filed by che accused with a fled vs 145 Q) NP Act Le Ex CWISX] and the document {led Gy the complainant which has neither been exhibited nor being marked. Even if we accept the document Aled by the complainant for che sake of argument, the document is a document, Tr is only a te copy of leer of ent, (bis further pertinent ta mention chat once che rebuttal was raised by ihe accused, the onus was on complainant to prove the document or to disprove the document Le EXCWHR I, however, complainant has miserably felled in doing so. No explanation has been provided by the complainant regarding ncn production of original revised letter of agreement and shus rendering inadmissible as evidence, Purther on carefully sesine the document fled hy complainant
- es -
with the reply of application (led ws 145 ©) NI Act, it reveals that a diisrent penvink has been used which alse ces with the argument advenced by ik. Counsel for the accused, that name of on Sharda University was later added. Ro seems that & was an atierthought by the complainant. It is pertinent i mention that Id. Counsel for the ee has also arened that accused has meysteciously and with some technique deleted the para 4 In lerer x of ggreement which was there in revised Jeter af agreement (fled by the complainant af later stage). Hewwever, on perusal of letter of agreement Aled by the accused Le. EXCWI/X1 and letter of agreement Aled by the complainant with the reply against x application (led by accused u/s 145 (2) NI Act nowhere any word = date ig changed. lb is sen prising Ha revised agreement js * sie the new date should have been on new letter of agreement Moreover, complainant has sever averred the same CONG Sra aes RUA. Group Gt Bde stil ye. Ska Paar Page da TS af 23 * Rise wal complaint fled and only after the accused's me application Aled ws I45 (2) NI Act, the 'Sapleean) brought this fact of revised letter of agreement before the court, The onus was an the complainant, that if the name of jeleted or fampered by the accased, the should have brought original document or any On recerd fo relyn the document Les.
EA CAV TS | which was presented by dhe accused, Fanhermore, the complainant has accepted that a complaint was fied against the complainant company by the accused on dated IS-01,.202) for cheating forgery and fabrication. Though, the complainant has stated that the cheque i question was presented fox encashment before the pollce complaint Oiled against the complaint, however, om perusal of recard and cormplaint, the cheque im question and returning memo, if reveals that the seioe was presented on 2B 2022 Le ExX.OWw DTS and Ex CwL, which clearly shows that the cheque was presented much later after the police complaint was filed against the complainant by the accused. Moreover, no suggesticn bas been given by the complainant' in the cross-examination of accused regarding questioning the veracity of palice complaint fled by the accused iis lmiperetive to see that the accused has clearly stated in her crass-examination by the complainant that the accused asked the bank in step the payment of cheque on her instructions to the bank as the accused had coubts that the complainant might be misusing the cheque In question for Nlegal activities or to [Ne a false case Reference may be taken in case MUMLTILG. Lad. wy Medchi ONG AYE ZOZE BLM, Granug of Relocation) vas Rake Pal * . teeter a Chemicals and Pharma (P) Lid, (2002) 1 SOC 234 : 2002 SCC (Cry 2) is, 'submited that a complaint under SecNan 138 could only be mauagined if the cheque wes dishonoured for reason of finds Miclent to honour the cheque or if the amount of the cheque . fds the amount in the account. [t is submitted thar as payment of the cheques hed been stapned by the drawer one of the ingredients of Section 188 was not fulfilled and thus the complaints were fol malvisinabls, To. Just such a contention has heen negatived hy this Court in the case of Modi Cements Lid. v. Kuchil Kumar Nandi [(1998) 3 SCC
249). Ithas been held thet even though the cheque is dishonoured by reason af een k. instruction an offence under Section 138 could sul be mace out. 1 is held that the presumption under Section 139 IS attvacied in sack A case alge: The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by vinnie af Section 139 the court has to presume thar the part, of any debe or 'baie tH course this is a rebuttable presumption. The accused can thus show that the "stap-
payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the dy awer bank and that the step-payment notice had been issued because of other valid causes Including that there was no existing debt or Rability at the time of presentation of cheque for encashmeni, then offence under Section 138 would not be made aut. The important thing is that the burden of sa proving would he on the SE Wa SP eeget ROM, Group af Educates va. Kabat Pane accused. Tas 8 court cannot quash ¢ complaint on this ground. ~ Laxmi 0 hen vy. State of Gujarat, (2012) 19 SCC 375 aG, What ig wished to be emphasized is that matters arising out of "sigp payment' Insiruction to the bank although would cansGlute an > affence under Section 238 of the NI Act since this is 3 pian PEK sei TAS sane is an offence subject to the pravision of Sectian 139 af the Act and hence, where the accused fails to disc ae his burden af rebudial by groving that che cheque could be held i be a cheque only for discharve of a howful dein, the offence would be made oi. Therefore, the cases arising out of stop payment situation where the drawer of cheques has sufficient funds in his account and yet steps payment for bone fide reasons, the same cannot be put on par whith other variety of cases where the cheque has bounced on account of insufficiency of fands or where it exceeds the amount arranged to be paid from that account, since Section 138 cannot be applied in isolation ignoring Sectinn 199 which envisages a right of rebuttal before an offence could be made out wader Section 138 of the Act as the Legislature already incarporates the expression "unless the contrary is proved" which means that the presumption of law shall stand and unless it is rebutted or ilisproved, the halder of a cheque shall be presumed to have received the clreque of the neture referred to In Section 138 of the NI Act, for the discharse of a debt or other Labill Hy. Hence, unless the contrary is proved, the presumption shall he made that the holder of a negotiahls instrument is holder in due couse, Raed
29. Thas, although a petition ander Section 482 CrPC may sat be entertained by the Hl Be gurl for quashing such proceedings, yet the judicious use of discrefion by the trial Judge whether to proceed \n COND STGRI RUNG Guy of Esoomtio ve. Makoll Pap Page mdb of s3 the matter or Act would be encrmous In whew of Section 159 of the Ni Act and drawer of the cheque discharges the burden even at the stage of enquiry that he had bona fide reasons te stop the payment and not make he said payrient even within the statitory time of 15 deys provided under the Ni Act, the ial court sii ight be justified in refusing 40 issue summons to the drawer of the cheque by hold Rng ib Act that Ingredients fo congiitute offence under Section 138 of the? are msing where the accountholder has sufficient funds to discharge the dex, Thus the category of "step-payment cheques"
would be a category which Is subject to rebuttal and hence would be an offence only Ho the drewer of the cheque fails to lischarge the muden of rebatial.
x
30. Thus, dishonour of cheques simplicitar for the reasons stated in Section [38 of the NI Act although is sufficient for commission of offence since the presumption of law on this point is no longer tes integra, the category of "step-payment"™ instruction to the bank where the arcount-helder has sufficient funds in his account te discharge the debt for which the cheque was issued, the said category of cases would be subject to rebuttal as this question being rebuitable, che accused can shaw that the stop-payment instructions were not issued because of insufficiency or panciy of funds, but stop-payment instruction had been issued te the bank fer ather valid causes Including the reason that there was ne existing debt or Hability in view of bona fide dispute between the drawer and drawee of the cheque. If that be so, then offeace under Section 138 although would be made out, the same will attract Section 139 leaving the burden of proof of rebuttal by the drawer of the cheque.
Ld. counsel for the accused has argued that the proceedings as ENG. OP eRU2 2 BNL OG. GF Sdlue stn ve: Rake Pale Page NO: LP oF £2, Cod Jone, h only be Inidiated if the cheque in question was harge of legally recoverable debt or legal liabilicy, however, (n the present case, the complainant has received the an far sectning the admission af a candidate in Loe college which is per se (legal To substantiate this Al letter of agreement was exhibled as JOO 2022, which was fled slongwith the weed Ried ws 145 Q) NE Acton 15.02.9002.
fis perGnent to mention as per letter agreement Bx CWI XT and even for the sake of arguinent if we read the document fled by complainant Le. revised letter of agreement, in both the letter of agresmnent, the smountccnsiderstion was taken an account of admission. Here it is imperative to understand the meaning of consideration with respect to legal Uebility. As per section 23 of Indian Contract Act what consideration and objects are lawful, and what net -- The consideration ar object of an agreement is lawfid, unless -
" 3 S Sot eS : a9 Fo oy is of such @ panes thot, if permitted, ¢ would defeat the ' ¥ ae he provisions of amy fae ar is fraudulent; ar ies or i coa injury fo fhe persan or property oF anothers or the court regards it as (immoral, or opposed to public policy In eact of theses cases, the consideration or object of an agreement is said to Oe unlawful, Every agreement of which the abject or consideration js unlawful is vold. At the outset, on the face of the record, fis clearly established that the alleverl amount was net given for a legal consideration as inducement of procuringSer uring: admission ia gevernrment CANS BPS = iS eas Paced és AA taran of Gducaliny we, Keke On s college Oy [aking consideration is a prima facie ilegal and against the pub The same can be verified by the statement given it im cross-examimation he. "His correce shot f "backdrop. rellance is placed on a decision of Virender Singh vs. Laxmi Narain And Anr AIR 2007 (NOC) 2039 (DEL) wherein the complainant gave a sum of Rs. SO,000)- by way af "se gratification i the accused and his father for the purposes af securing @ job for the complainant's nephew {5 Haryana Police thrsagh purported high profile political leaders.
However, the complainant afer having pas the sald sum did not get the job for his nephew requested the accused is return the amount af Rs.GO,000/-, in pursuance of which accused issued the cheque in question Ia bis favour which was dishonoured upon presemation. Phe Hon'ble High Court held that the agreement between the accused/petitioner and the complainant was void as the consideration of Rs.€0,0004 was in the nature of an egal gratification and was unlawful, Similar view has been isken by the Han'bie Kamataka High Court in a case tis ted as R, Parimala Bai Vs. Bhaskar Narasimhaiah S018 (4) AKR 379, In view of the foregoing discussion this court has no hesitation to hold that since the consideration for the contract, Hf any, between said contract is vaid in terms af Section 33 of the Indian Contract Act, 1872. Since the debt is Hself not a legal delx, no case for x cishonour of a cheque issued in discharge of such a debt llabiliny ok can be made out under Section 188 of the NE Act, CY Nea. Sea? I ALM Grous af Education vs. Kakol Pall Page a2) ah gs 'rie é De £ ant has failed to prove that on what basis the oniplailngn! was getting the admission of the accused's daughter lege. [is trite, that no where in lever of agreement, has revealed, that what kind af skills and is being imparted ar provided to the candidates to get ission in the government medical colleges. Same can be TORY (he Statement given by complainant In his cross examination wherein he has stated "we only counsel the students and help Quen in securing admission in Sharda Ciniversity as per their marks and merits. This fact fs not mentioned in the agreement in question", As per the Limited knowledge af the coun, the admission in such colleges are bei ing taken anly on marks and merits. L egal cansideration founds tn he aheent in the present case, Albeit, the complainant has stated ia the cross examination and the complaint {Med, thac the services af counseling was rendered fo accused, however, the can nlainant enane fas stated in the cross-examination that the complainant was entided fo fees/payment from the sccused only when the complainant will secure the admission of the errused. The relevant extract from the cross-m ig carrect thet I was entided to feescpaye only when I i secure dhe admission of her daughter", Thus, the presureption of legal debr is rebutted. Hence, this court has arrived ata irresistible comclusion that the accused has been able to rebut the mandatory presumption resting against him. On the other hand, complainant has utterly failed to prove his case _ beyond reasonable doubr qua the existence of legal Mabiliny towards the accused to the time of amount of the cheque in question as on the date of its drawl or presentation, CUM QR Poet RUM -Goaup of Sduestion ve. Kabel Paty Rags RS The onus Bas now shit fed back upon the complainant to prove the the offence u/s 138 NU Act reaarding the Reque in question for any legal debt or other | Habilry equivalent is the amount mentioned therein. Since the complainant bas not takea any steps thereafter to prove his case reasariile doubt qua the lishillry of the accused cn the date of presentation of the cheque in question. This court has {sity arrived ab the conclusion that the camplainant's case daes nat sland on is own les.
all these reasons, 1 am of the view that on a scale af preponderance of prohabilides, the accused has been shle torebut the presumption against him and therefore Ingredient no. GD has not been established against the acensed beyond reasonable doubt.
Final Order by view of the evidence adduced, documents put forth and arguments ativanced by the parties and further in view af the above discussion, the court is af the considered wiew that Mre. Kakoli Palit is net guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and eccordi: ingly she is : hereby acquitted under Section 138 of Negotiable Instruments Act, 1881, Copy of this judement be given to the accused dasti, Announced In pen court on 19.02.2902 a4 Judgment consists of 23 pages. ees GAURAYV KATARIYA MMLOL (NI Ach DIGITAL COURT, WEST, TDS HAZART COURTS, DELHV19.02.2004 SE NGS TY E02 F RUM C8 of Bah oation. 68) RBaRAN Balt Page no. 23-of 238