Delhi District Court
Gautam Chugh vs Neena Sarsar on 16 July, 2024
IN THE COURT OF MS. SANJANA KASANA
LD. JUDICIAL MAGISTRATE FIRST CLASS (NI ACT), DIGITAL
COURT-09, SOUTH-WEST, DWARKA COURT, NEW DELHI.
Presided over by :- Ms. Sanjana Kasana, DJS
CC No. NI ACT 4764/2022
Unique case ID No. DLSW02-005878-2022
GAUTAM CHUGH
S/o Sh Hirdesh Chugh
Tower-A- 102, 10th Floor
Spaze Privy, Sector-72,
Sohna Road, Gurgaon, Haryana ... Complainant
VERSUS
NEENA SARSAR
W/o Sh. Mukesh Kumar,
H. No. 762, A Block-,
Jahangir Puri, Delhi ... Accused
Complainant Case no. 4764/2022
CNR No. DLSW02-005878-2022
Title Gautam Chugh Vs. Neena
Sarsar
Name of Complainant Gautam Chugh
Name of Accused Neena Sarsar
Date of Institution of Complaint 03.02.2022
Date of Final Arguments 16.07.2024
SANJA
Digitally signed by
SANJANA KASANA
DN: c=IN, o=DELHI DISTRICT
COURT, ou=METROPOLITAN
NA
MAGISTRATE / CIVIL JUDGE,
2.5.4.20=3661c195a68aef2c
5be22145d757d1a3bab4fc4
5ad63373b072f5149309a49f
KASAN
5, postalCode=110075,
st=Delhi,
serialNumber=65ac17eef3fc
A
cfa4fe0f4071f2f95e00a3ecf5
ef97b4d68694943b993b273
271, cn=SANJANA KASANA
Date: 2024.07.16 16:37:44
Page No 1 of 19
+05'30'
Date of Pronouncement of 16.07.2024
Judgment
Offence Involved Section 138 NI Act
Plea of the Accused Pleaded not guilty
Final order Acquitted.
JUDGMENT
1. Present complaint has been filed by complainant alleging an offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the "NI Act").
2. Facts, in brief, as alleged in the complaint are that the complainant did the work of interior, POP, stone work and wooden work etc. and accused had issued a cheque bearing No. 864509 dated 14.12.2021 for a sum of Rs. 2,00,000/- (Ex. CW-1/2) (hereinafter referred to as the "cheque-in- question") for encashment, which were dishonored with the remarks "funds insufficient" vide return memo dated 18.12.2021 (Ex. CW-1/3). Complainant then sent a legal demand notice dated 13.01.2022 (Ex. CW- 1/4) to accused calling upon him to make the payment of cheque amount within the statutory period of 15 days. However, accused did not make the payment of amount in question and hence, present complaint alleging an offence under Section 138 NI Act was instituted by the complainant.
3. This court took cognizance of offence under Section 138 NI Act and accused was summoned vide order dated 28.02.2022. Thereafter, accused entered appearance before this Court on 12.09.2022. Notice as per mandate of Section 251 of Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was framed against the accused on 12.09.2022 to which accused pleaded not guilty and claimed trial. In his plea of defense, accused SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN NA MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5 be22145d757d1a3bab4fc45a d63373b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccf a4fe0f4071f2f95e00a3ecf5ef9 A 7b4d68694943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:38:01 +05'30' Page No 2 of 19 had stated that she was co-applicant with her husband when they took a home loan from Shubham Finance. They were introduced to Shubham Finance by complainant. At the time of the taking of said home loan, she had given present cheque in question as a blank security cheque. Her husband and She were regularly paying back the loan amount; however, they lost their jobs subsequently due to outbreak of COVID 19 pandemic. They have already surrendered the property against which they had taken the loan. The cheque which they had given as security has been misused by the complainant and She has no legal liability towards the complainant.
4. The matter was then listed for complainant's evidence. In proof of his case, the complainant had relied upon the following documents: -
Mark A - Copy of sale deed.
Ex. CW-1/1 - Bills from June 2019 to September 2019 Ex. CW1/2 Cheque in question bearing No.864509 dated 14.12.2021 for an amount of Rs. 2,00,000/-
Ex. CW1/3 - Return memo dated. 18.12.2021 Ex. CW1/4 - Legal demand notice dated 13.01.2022 Ex CW1/5 - Postal receipts.
Ex. CW1/6 Tracking Report.
Ex. CW1/7 Certificate under Section 65B of the Indian Evidence Act.
5. Admission-Denial of documents in terms of Section 294 of Cr.P.C. was also recorded wherein accused has not disputed the genuineness of Mark A copy of sale deed, Ex. CW1/2 cheque-in-question and Ex. CW-1/3 return memo dated 18.12.2021. On 13.12.2022 accused moved an oral application under Section 145 (2) of NI Act which was allowed, and complainant was cross-examined.
6. In his cross-examination, complainant (CW-1), deposed that since 2018, he is residing at Tower-A-102, 10th Floor SPAZE, Privity, Sector-72, Digitally signed by SANJANA SANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be221 45d757d1a3bab4fc45ad63373b072 f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4fe0 Page No 3 of 19 f4071f2f95e00a3ecf5ef97b4d68694 943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:38:14 +05'30' Sohna Road, Gurgaon, Haryana, -122001.The cheque in question was duly filled up when the accused handed over the same to him. At this stage, the witness is shown Ex. CW/2 which is the cheque in question to which he had submitted that it is correct that the ink of the pen in which the name of the payee is written and the ink in which the signature of accused is there on the cheque in question are different. The handwriting is also different. It is wrong to suggest that since the writing and ink with regard to the name of the payee and signatures of accused is different, same was not filed by the accused. It is further wrong to suggest that the cheque in question was given by the accused to Shubham Finance during the execution of sale deed. He had stated uncle of accused was present when the accused approached him to do some interior work in his flat. However, uncle of accused has now expired. Accused had approached him for the said purpose as the house of the deceased uncle of the accused. It is correct that this fact that deceased uncle of accused was present has not been mentioned in the complaint as well as the legal demand notice. There is no other person other than the accused, his wife and himself and deceased uncle of accused who were present when the accused approached him. It is wrong to suggest that accused approached him for doing some interior work in his flat in the presence of his wife and deceased uncle. He had further submitted that there was no agreement which is executed between the accused and the himself with respect to the interior work which he was supposed to do for the accused for a sum of Rs. 2 lacs starting from June 2019 to September 2019. He cannot furnish any document or the with respect to the purchase of material for carrying out the interior work. He can only produce the bills which were generated by him which are already on record as Ex. CW1/1. Further, witness was shown Ex. CW1/2 wherein he deposed that the bills has not been signed by the accused. The liability SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT NA Page No 4 of 19 COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5be 22145d757d1a3bab4fc45ad633 73b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccfa4 fe0f4071f2f95e00a3ecf5ef97b4d 68694943b993b273271, cn=SANJANA KASANA A Date: 2024.07.16 16:38:27 +05'30' of the accused as per bills is 2,13,500/-. There is no settlement between the accused and himself qua the said bill. It is wrong to suggest that since there was no settlement between the accused and the complainant qua the bill, complainant has misused the blank signed security cheque which was lying him with respect to the sale transaction. It is further wrong to suggest that bills which is Ex. CW1/2 is a false and fabricated document as the complainant has not done any interior work for accused. It is wrong to suggest that he has filed the false and fabricated case against the accused in order to harass her. The legal demand notice which is Ex. CW1/4 was sent to the accused by way of speed post. The legal demand notice was delivered to the accused, however, he cannot recall the date. It is wrong to suggest that the legal demand notice was not delivered to the accused. It is further wrong to suggest that he is deposing falsely.
7. Complainant then closed CE vide separate statement dated 21.11.2023.
8. Thereafter, all incriminating piece of evidence were put to accused and his statement in terms of Section 313 read with Section 281 of Cr.P.C. was recorded wherein accused stated that she was co-applicant with her husband when they took a home loan from Shubham Finance. They were introduced to Shubham Finance by complainant. At the time of the taking of said home loan, she had given present cheque in question as a blank security cheque. Her husband and She were regularly paying back the loan amount; however, they lost their jobs subsequently due to outbreak of COVID 19 pandemic. They have already surrendered the property against which they had taken the loan. The cheque which they had given as security has been misused by the complainant and She has no legal liability towards the complainant.
9. Accused opted to lead Defence Evidence. Application under Section 315 of Cr.P.C moved by accused was allowed.
Digitally signed by SANJANASANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be22 145d757d1a3bab4fc45ad63373b0 72f5149309a49f5, postalCode=110075, st=Delhi, Page No 5 of 19 KASANA serialNumber=65ac17eef3fccfa4fe 0f4071f2f95e00a3ecf5ef97b4d686 94943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:38:41 +05'30'
10. DW-1 was examined, cross examined and in her cross examination, she stated that she had not filed any complaint against Shubham Finance. She had not taken the photostat copy of the cheques for future reference. She had informed the bank on customer care to stop the encashment of the another cheque so that the same may not be misused in future. She had not filed any complaint against Gautam Chug for the cheque in question and work done by the complainant. (Vol. She came to know regarding the misuse of the cheques by the complainant after receiving summons from the court. Before receiving summons, She had no dispute with the complainant. It is wrong to suggest that Gautam Chug has nothing to do with the Shubham Finance. It is wrong to suggest that she had not filed any complaint in bank because she had liabilities towards the complainant against the cheques in question. It is wrong to suggest that she is unnecessarily harassing the complainant by not paying his due amount. It is wrong to suggest that She had deposed falsely.
11. DW-1 was examined, cross examined and in his cross examination, he stated that the accused has not ever resided in the said property bearing No. RZD2/ 72, Gali No. 5, Mahavir Enclave. He had seen communicating the accused with the complainant. There was no dispute between the complainant and the accused. He was not a witness in any document executed between the accused, M/s. Shubham Finance and complainant. He does not know anything about any transaction between his sister and complainant. It is wrong to suggest that today He had deposed falsely to save his sister.
12. Thereafter, DE was closed, and matter was listed for final arguments.
13. Ld. Counsel for complainant has reiterated the averments made in the complaint in his arguments and he has further argued that all the statutory SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN NA MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5 be22145d757d1a3bab4fc45a d63373b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, Page No 6 of 19 serialNumber=65ac17eef3fcc fa4fe0f4071f2f95e00a3ecf5ef A 97b4d68694943b993b27327 1, cn=SANJANA KASANA Date: 2024.07.16 16:38:55 +05'30' requirements for an offence under section 138 of the NI Act are met with in the present complaint and that the complainant has been able to prove his case beyond reasonable doubt. Ld. Counsel for the complainant has further argued that the accused has admitted the sale deed which is on there on record. Further, he had submitted that the bill of Rs. 2,00,000/- has also been placed on record, in discharge of which accused had issued a cheque of Rs. 2,00,000/- in favour of the complainant. He had further argued that the accused has admitted his signatures on the cheque in question and therefore, a presumption in terms of Section 139 of the NI Act exists in favor of complainant and accused has failed to rebut the presumption. Ld. Counsel for complainant has further argued that the accused has neither placed on record any document or brought forth any witness of Shubham finance nor produced her husband as a witness. Further, accused has not issued stop payment instructions to bank regarding misuse of her cheque. He had further argued that the accused has not made any complaint against the misuse of cheques in question, therefore, accused be convicted for an offence under section 138 of the NI Act. Ld. Counsel for complainant has further argued that accused has admitted her signatures on cheque-in- question in her notice framed under section 251 CrPC.
14. Per Contra the ld. Counsel for accused had argued that the accused had admitted the sale deed. He had further argued that there is no contradiction in the version of the accused and that she had issued the cheque in question to Shubham finance and not to the complainant. Also, the ld. Counsel for accused had argued that the handwriting and ink of the pen on the cheque in question is different which was admitted by the complainant in his cross examination also. Further, the bill which had been placed on record by the complainant is not authentic as it is handwritten and bears only the SANJAN Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL A JUDGE, 2.5.4.20=3661c195a68aef2c5be22145d757d1a3 bab4fc45ad63373b072f5149309a49f5, postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccfa4fe0f4071f2f95e KASANA 00a3ecf5ef97b4d68694943b993b273271, cn=SANJANA KASANA Page No 7 of 19 Date: 2024.07.16 16:39:10 +05'30' signatures of the complainant. He had further argued that the accused had not received any legal demand notice.
15. Before proceeding to decide the case on merits, it is imperative that position of law with respect to an offence under Section 138 of the NI Act is discussed.
Section 138 of the NI Act reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. -- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
the payee or the holder in due course of the cheque, as the SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT NA COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5be 22145d757d1a3bab4fc45ad633 73b072f5149309a49f5, KASA postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccfa4 fe0f4071f2f95e00a3ecf5ef97b4d Page No 8 of 19 68694943b993b273271, cn=SANJANA KASANA NA Date: 2024.07.16 16:39:22 +05'30' case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and;
the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. -- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
16. In order to constitute an offence under Section 138 of the NI Act the following ingredients must be fulfilled:
• Cheque must be drawn on an account maintained by drawer for discharge of a legally enforceable debt either in part or whole.
• Cheque must be validly presented for encashment, i.e., must be presented within validity period or within 3 months from date of issuance whichever is earlier.
• Cheque must be returned back unpaid with remarks funds insufficient or exceeds the amount arranged for.
• A legal demand notice in writing must be issued by payee or holder in due course, within 30 days of receipt of information regarding dishonour of cheque, calling upon the drawer to make the payment of amount in question within 15 days of receipt of legal demand notice.Digitally signed by SANJANA
SANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be221 45d757d1a3bab4fc45ad63373b07 2f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4fe 0f4071f2f95e00a3ecf5ef97b4d686 94943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:39:34 +05'30' Page No 9 of 19 • Drawer fails to make the payment of amount in question within 15 days of receipt of legal demand notice.
17. Section 139 of the NI Act is a reverse onus clause which was added to the statute book in order to increase the credibility of cheque/negotiable instruments as a mode of payment. Section 139 reads as under:
"139. Presumption in favour of holder. -- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
18. Nature and scope of presumption under Section 139 of the NI Act has been dealt in a catena of judgments. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court of India held as under:
"22. 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 v. A. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ 232] 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. at p. 65, para 14.) Such a presumption is a SANJAN Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN A MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5be 22145d757d1a3bab4fc45ad633 73b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, A serialNumber=65ac17eef3fccfa4 fe0f4071f2f95e00a3ecf5ef97b4d 68694943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:39:46 +05'30' Page No 10 of 19 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. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" [ Section 3, Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence Digitally signed by SANJANA SANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be2 2145d757d1a3bab4fc45ad63373 b072f5149309a49f5, postalCode=110075, st=Delhi, KASANA Page No 11 of 19 serialNumber=65ac17eef3fccfa4f e0f4071f2f95e00a3ecf5ef97b4d6 8694943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:40:00 +05'30' that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man."
19. In case Rangappa v. Sri Mohan, (2010) 11 SCC 441, Hon'ble Supreme Court has further held as under:
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in Digitally signed by SANJANA KASANA SANJAN DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN Page No 12 of 19 MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be2 2145d757d1a3bab4fc45ad63373 b072f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4f e0f4071f2f95e00a3ecf5ef97b4d6 8694943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:40:13 +05'30' view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
20. Section 139 thus creates a rebuttable presumption in favor of complainant which casts an onus on accused to rebut the same on basis of preponderance of probabilities. It is not necessary that accused enters the witness box himself for this purpose, however, making of bare averments is not enough and some proof has to be adduced by accused either from the material which is already available on record or by leading cogent evidence in support of his defence. (Reliance has been placed on Basalingappa vs Mudibasappa, (2019) 5 SCC 418).
ANALYSIS ON MERITS
21. Position of law being as above, it becomes imperative to examine as to whether complainant has been able to establish the basic ingredients for commission of offence under Section 138 of the NI Act and if the complainant succeeds in same, whether accused has been able to rebut the presumption drawn under section 139 of the NI Act or not.
Digitally signed by SANJANASANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be22 145d757d1a3bab4fc45ad63373b 072f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4fe 0f4071f2f95e00a3ecf5ef97b4d686 94943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:40:29 +05'30' Page No 13 of 19
22. 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 Sections 118 and 139 of the Act will not again come to the complainant's rescue as held in case of Kumar Exports v Sharma Carpets (2009) 2 SCC 513.
23. In the case at hand, accused has admitted his signatures on the cheque-in-
question, therefore, a presumption exists in favor of complainant under Section 139 of the NI Act which includes the presumption that cheque in question was issued in discharge of a legally enforceable debt. [Reliance has been placed on Basalingappa case (supra)].
24. In regard to the other essential ingredients of Section 138 NI Act, it can be seen from record that the cheque in question Ex. CW-1/2 was presented within three months from the date of issuance viz 14.12.2021 and the same were dishonoured with remarks "Funds insufficient" vide return memo dated 18.12.2021 Ex. CW-1/3. Legal Demand Notice Ex. CW-1/4 was issued on 13.01.2022, i.e. within 30 days of dishonour and the said legal demand notice was sent to the accused as per the tracking report Ex. CW- 1/5 which has been placed on record. Thereafter, present complaint was filed within the prescribed period of limitation. Further, accused has admitted his signatures on cheque-in-question in the Notice framed against SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN NA MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5be 22145d757d1a3bab4fc45ad633 73b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccfa 4fe0f4071f2f95e00a3ecf5ef97b 4d68694943b993b273271, A cn=SANJANA KASANA Date: 2024.07.16 16:40:43 +05'30' Page No 14 of 19 him under Section 251 Cr.P.C. and therefore, it can be inferred that cheque- in-question was issued from an account maintained by the accused himself.
25. Also, on perusal of notice framed under section 251 Crpc, in statement of accused under sec 313 r/w section 281 Crpc, the accused is disputing the issuance of cheques in question to the complainant and she had stated that the said cheque was given to Shubham finance as a blank security cheque at the time of taking home loan from Shubham finance.
26. In view of the foregoing discussion, complainant has been able to establish basic ingredients for commission of offence under Section 138 NI Act. The onus in now on accused to rebut this presumption drawn in favor of complainant on basis of preponderance of probabilities.
27. In order to rebut the presumption, accused has raised following issues in his defence:
• Receipt of legal demand notice by the accused:
28. The accused has stated in his plea of defence under section 251 CrPC that he did not receive the legal demand notice. The accused took the same stand in his statement u/s 313 CrPC. Presumptions regarding the successful delivery of documents sent by the post (whether registered or not) can be raised by the court as per the provisions enshrined in Section 27 of the General Clauses Act r/w Section 114 of the Indian Evidence Act (hereinafter referred to as 'IEA').
29. The Hon'ble Supreme Court in the case of Alavi Haji vs. Palapetty Muhd.
& Anr (2007) 6 SCC 555 wherein the Hon'ble Court has opined that section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. Unless and until the contrary is proved by the addressee, service of Digitally signed by SANJANA SANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be22 145d757d1a3bab4fc45ad63373b0 72f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4fe 0f4071f2f95e00a3ecf5ef97b4d686 94943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:41:01 +05'30' Page No 15 of 19 notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
30. The accused has denied the receipt of legal notice. She has, at time of recording of his statement u/s 313 CrPC and defence evidence, stated that her correct residential address is H. no 1762, A-block Jahangir puri, Delhi 110033. Whereas the address mentioned on the legal demand notice Ex. CW- 1/4 dated 13.01.2022 is H. no 762, A-block Jahangir puri, Delhi 110033. Therefore, in the light of the above discussion, this court is of the considered view that a presumption regarding delivery of legal demand notice cannot be raised.
• Contents of cheque in question in different inks:
31. The accused has put up his case that the ink used to fill name of payee and signatures of the payee is different and also the handwriting on the cheque is also different. And in his oral arguments, the Ld. Counsel argued that the complainant in his cross examination as CW1 has admitted that ink of the pen used to fill name of payee and signatures of the payee is different and also the handwriting on the cheque is also different. No rebuttal or any explanation has been offered by the complainant.
• Existence of Legally enforceable debt or liability:
32. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque in question were issued to him after he had undertaken works of interior for accused for a sum of Rs. 2,00,000/- and he has also raised a bill for the said amount from June 2019-September 2019. The cheque in question, dishonour memo of cheque, legal demand notice and the bill were exhibited on record.
Digitally signed by SANJANASANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be2 2145d757d1a3bab4fc45ad63373 b072f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4f e0f4071f2f95e00a3ecf5ef97b4d6 8694943b993b273271, cn=SANJANA KASANA Page No 16 of 19 Date: 2024.07.16 16:41:15 +05'30'
33. The complainant is relying on his bills EX. CW 1/1 as his legally enforceable debt against the accused. Ld. Counsel for the accused has raised an objection in his arguments that the said bill is not authentic and he had further stated that the documents which are not proved on record cannot be relied upon. Further, he had stated that the said bill only bears the signatures of the complainant.
34. In his cross examination, the complainant had stated that there was no agreement between the parties regarding the works of interior. Further, he had stated that he cannot produce any document regarding purchase of the materials.
35. Perusal of the record shows that no document or purchase bill has been furnished by the complainant for proving the said bill EX. CW 1/1. The bill is handwritten bearing only the signatures of the complainant. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. The complainant has admitted to have not furnished any document with respect to the purchase of material for carrying out the interior work for accused.
36. Further, complainant had stated in his cross examination that uncle of the accused was present when accused approached complainant for interior work in complainant's flat, but uncle of the accused has expired now. However, the said fact was not mentioned by the complainant in his evidence by way of affidavit Ex. CW-1/A and legal demand notice Ex. CW-1/4. There is no evidentiary proof, no eyewitness to the said transaction. Therefore, it warrants for drawing an adverse inference against the case of complainant in terms of provisions of S.114 of Evidence Act.
SANJA Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN NA MAGISTRATE / CIVIL JUDGE, 2.5.4.20=3661c195a68aef2c5be 22145d757d1a3bab4fc45ad63 373b072f5149309a49f5, KASAN postalCode=110075, st=Delhi, serialNumber=65ac17eef3fccfa 4fe0f4071f2f95e00a3ecf5ef97b 4d68694943b993b273271, A cn=SANJANA KASANA Date: 2024.07.16 16:41:30 +05'30' Page No 17 of 19
37. The complainant has not brought coherent set of facts before the court, making his version doubtful. The testimony of complainant/CW-1 does not inspire confidence.
38. As stated above the burden of proof on accused is merely on preponderance of probabilities and not beyond any reasonable doubt. The accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability of the complainant.
39. Here in the present case, when an amount of Rs. 2,00,000/- has been alleged to be spent on interior works, it's all natural for the complainant to come forth with reliable and credible evidence. But complainant has remained questionably inert and indolent in bringing forth any plausible evidence to win over the confidence of the court.
40. This court is of the opinion that the accused has been able to establish his defence by casting doubts and by rebutting the presumption u/s 139 of NI Act on the version of the complainant on basis of preponderance of probabilities.
CONCLUSION
41. In view of the foregoing facts, arguments advanced by the complainant and the accused, marshalling of evidence as well as established legal position, this court is of the considered opinion that accused has been able to rebut the presumption under Section 139 of the NI Act and has been able to establish her defence on basis of preponderance of probabilities and complainant has not been able to prove its case beyond reasonable doubt. Therefore, this court is of the considered opinion that the accused Neena Sarsar w/o Sh. Mukesh Kumar is not guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, is Digitally signed by SANJANA SANJAN KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be2 2145d757d1a3bab4fc45ad63373 b072f5149309a49f5, postalCode=110075, st=Delhi, KASANA serialNumber=65ac17eef3fccfa4f e0f4071f2f95e00a3ecf5ef97b4d6 Page No 18 of 19 8694943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:41:46 +05'30' hereby acquitted for offence under Section 138 of Negotiable Instruments Act, 1881.
Announced in open SANJAN Digitally signed by SANJANA KASANA DN: c=IN, o=DELHI DISTRICT COURT, ou=METROPOLITAN MAGISTRATE / CIVIL JUDGE, A 2.5.4.20=3661c195a68aef2c5be22 145d757d1a3bab4fc45ad63373b0 court on 16.07.2024 72f5149309a49f5, postalCode=110075, st=Delhi, KASANA
serialNumber=65ac17eef3fccfa4fe 0f4071f2f95e00a3ecf5ef97b4d686 94943b993b273271, cn=SANJANA KASANA Date: 2024.07.16 16:42:01 +05'30' (SANJANA KASANA) JUDICIAL MAGISTRATE, FIRST CLASS NI ACT), DIGITAL COURT-09 SOUTH-WEST DISTRICT, DWARKA COURT NEW DELHI 16.07.2024 Page No 19 of 19