Delhi District Court
Cc No. 4664716 Sat Prakash Sharma vs . Rani Mishra on 26 May, 2023
CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra
IN THE COURT OF MS POOJA YADAV,
METROPOLITAN MAGISTRATE (NI ACT),
KARKARDOOMA COURTS, DELHI
Sat Prakash Sharma Vs. Rani Mishra
CC NO. 46647/16 [Mandawali]
CNR No.DLET020002242013
Sh. Sat Prakash Sharma
S/o Sh. Dwarka Prasad
R/o A3, South Ganesh Nagar,
Gali No. 01, Delhi110092
also at
SPA holder, Smt. Roshini Sharma
LR of late Sat Prakash Sharma,
R/o, H. NO. A3, Street no. 01,
South Ganesh Nagar, Delhi110092.
...............Complainant
Vs.
Ms. Rani Mishra
W/o Sh. Kedar Mishra
R/o H. No. 5, South Ganesh Nagar,
Delhi110051
also at
R/o A96/C, Third Floor, Gali no. 05,
South Ganesh Nagar, Delhi110051.
....................Accused
Complaint Case No. : 46647/16 (old CC no. 330/13)
Date of Institution : 20.04.2013
Digitally
signed by
POOJA
POOJA YADAV
Page no. 1 of 34 YADAV Date:
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CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra
Offence alleged : Section 138 Negotiable Instruments
Act, 1881.
Plea of the Accused : Plead not guilty.
Final Order : CONVICTED
Date of reservation : 20.05.2023
Date of Decision : 26.05.2023
Argued by : Sh. Narender Arora, Ld. Counsel for Complainant.
Sh. Rahul Sharma, Ld. Counsel for Accused.
JUDGEMENT
1. The Complainant has filed the present Complaint against the Accused under section 138 Negotiable Instruments Act, 1881.
FACTUAL MATRIX
2. The brief facts as alleged by Sh. Sat Prakash Gupta (hereinafter referred to as 'the Complainant') are that Ms. Rani Mishra (hereinafter referred to as 'the Accused') and her husband Sh. Kedar Mishra are known to the Complainant from past several years. On 18.03.2012, the Accused alongwith her husband had approached the Complainant to seek some financial help for contesting the election related to Municipal Corporation being one of the candidates running for some post in election. The Complainant acceded to the request of the Accused and her husband and provided financial help of Rs. 5,00,000/ in cash. Further, when the Complainant asked the Accused to return the borrowed amount, the Accused kept avoiding the POOJA Page no. 2 of 34 YADAV Digitally signed by POOJA YADAV Date: 2023.05.26 19:47:17 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra request of the Complainant on one pretext or another. Then, finally in the month of July, 2016, the Accused in order to discharge her abovesaid liability, issued a postdated cheque bearing no. 017039 dt.05.03.2013 for a total sum of Rs. 2 lakh drawn on The Kangra Co operative Bank Ltd., C4/17, Acharya Niketan, Mayur Vihar, PhaseI, Delhi110091 in the name of the Complainant. The Complainant presented the said cheque for encashment, however, the same returned dishonoured with the remarks "Payment Stopped by Drawer", vide cheque return memo dt. 06.03.2013. Subsequently, the Complainant approached the Accused and apprised her about the fate of the cheque, but to no avail which constrained him to issue the statutory legal demand notice dt. 20.03.2013 to the Accused which was sent through his counsel on 21.03.2013 by way of speed post. The said legal demand notice was duly received by the Accused, despite that, the Accused failed to make the payment within 15 days of receipt of the legal demand notice, hence, the present complaint.
3. Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (for short "the NI Act") was filed on 20.04.2013 by the Complainant, praying for the Accused to be summoned, tried and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has further Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.05.26 19:47:25 Page no. 3 of 34 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra averred that the matter falls within the territorial jurisdiction of this Court; thus, being tenable at law.
PROCEEDINGS BEFORE THE COURT PRESUMMONING EVIDENCE:
4. That in order to prove a primafacie case, the Complainant led presummoning evidence by way of affidavit i.e., Ex. CW1/1 on 30.04.2013 wherein the Complainant affirmed the facts stated in the present Complaint and relied upon the following documents:
Ex. CW 1/A: Original Cheque bearing no. 017039 dt.
05.03.2013 for a sum of Rs. 2,00,000/ drawn on The Kangra Cooperative Bank Ltd., C4/17, Acharya Niketan, Mayur Vihar, PhaseI, Delhi Ex. CW 1/B : Original copy of return memo dated 06.03.2013.
Ex. CW 1/C: Legal Notice dated 20.03.2013. Ex. CW 1/D: Postal Receipt dt. 21.03.2013 Ex. CW 1/E: Reply to the legal demand notice dt. 04.04.2013 Mark A : Promissory note dated 18.03.2012.
COGNIZANCE & SUMMONING OF THE ACCUSED:
5. That, after considering the Presummoning evidence led by the Complainant and the submissions made by him, the Ld. Predecessor took cognizance and issued summons to the Accused vide order dated 30.04.2013.
Digitally signed by POOJA POOJA YADAV YADAV Date:
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6. That the Accused entered her first appearance on 26.09.2013 and was admitted to bail on furnishing of bail bonds and a surety bond in the sum of Rs. 30,000/.
NOTICE U/S 251 CR.P.C:
7. That on 26.09.2013, Notice u/s 251 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') containing the substance of accusation, for the offence under Section 138 of the Act was served upon the Accused to which she pleaded not guilty and claimed trial. The plea of defence of the Accused is reproduced hereinunder for reference:
Plea of Defence of the Accused:
1. It is correct that cheque in question bears my signature, name of my bank and my account number. I filled amount in digit and date as appearing on cheque in question. However, I did not fill any other remaining content as appearing on cheque in question
2. I handed over chque in question as security to the Complainant as I had to take a loan of Rs. 5 lakh from the Complainant. However, Complainant did not advance single penny to me so far. Meanwhile, I sold my flat measuring area of 75 square yards to the Complainant for an amount of Rs. 27 lakhs in year 2012. However, Complainant had paid just Rs. 8 lakh to me so far in respect of aforesaid consideration of my flat. I needed Rs. 5 lakh for Digitally Page no. 5 of 34 signed by POOJA POOJA YADAV YADAV Date:
2023.05.26 19:47:43 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra repaying loan amount with interest to Kangra Co operative Bank, Mayur Vihar, Delhi. I had mortgaged my aforesaid flat with Kangra Cooperative Bank for taking aforesaid loan from it.
3. I received legal demand notice issued by the Complainant and I replied to the same.
EVIDENCE OF THE COMPLAINANT:
8. That after the Notice u/s 251 Cr.P.C containing the substance of accusation was served upon the Accused on 26.09.2013, one opportunity to crossexamine the Complainant was granted to the Accused considering the defence taken by the Accused. Thereafter, the matter was heard as a summons trial case.
9. That afterwards, the Complainant was examined as CW1, who adopted the presummoning evidence as postsummoning evidence as it is including the documents relied upon for her examinationinchief.
The Complainant i.e.,CW1 was then cross examined on 14.12.2015 and discharged on 12.03.2019. Further CW2, Sh. Roshan Lal was examinedin chief exhibited the Punjab Nation bank statement of Sh. Roshal Lal as Ex. CW2/A and promissory note dt. 18.03.2012 Ex. CW2/B and discharged on 03.03.2020 and CW3, Sh. Basant Bhardwaj was examined in chief, cross examined and dischargd on 22.02.2021. CE was closed on 22.02.2021. That being the case, the matter Digitally signed by POOJA POOJA YADAV YADAV Date:
Page no. 6 of 34 2023.05.26 19:47:52 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra was then listed for statement of the Accused u/s 313 Cr.P.C read with Section 281 Cr.P.C.
STATEMENT OF THE ACCUSED:
10. That in order to give an opportunity to the Accused to personally explain all the incriminating circumstances appearing in evidence against her, statement of the Accused under Section 313 Cr.P.C read with Section 281 Cr.P.C was recorded without oath on 06.12.2021 wherein all the incriminating circumstances appearing in evidence against the Accused were put to her. The Accused denied all the allegations against her and stated as under:
1. I know the Complainant since about 1012 years and we shared good family relation. I did not seek loan of Rs. 5 lakhs from the Complainant for running any elections. In fact, I had sought the loan of Rs. 5 lakh from the Complainant around the year 2012 because my property at third floor, A96C, South Ganesh Nagar was mortgaged with Kangra Cooperative Bank and I needed to pay the installments to the bank. I did not sign any receipt/promissory note.
The Complainant did not advance any loan to me despite taking five cheques which were signed and I filled the particulars of payee and amount, however, they were undated. At this stage, after interruption by both ld. Counsels, witness Digitally signed by POOJA Page no. 7 of 34 POOJA YADAV YADAV Date:
2023.05.26 19:48:00 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra states that the cheque did not mention the amount.
2. We shared good relations until the present transaction wherein Complainant did not advance any loan to me, however, purchased the same property as aforementioned for an amount of Rs. 27.5 lakh but only paid an amount of Rs. 6 lakhs (Rs. 3 lakhs by cash and Rs. 3 lakhs) by cheque. The Complainant further failed to return my cheque despite demand.
3. It is false as already aforestated.
4. It is false. I never executed such a document.
5. Sh. Basant Kumar is the brother in law of Complainant and has made a false statement.
Other mentioned persons are also acquaintances of the Complainant have deposed falsely at the behest of the Complainant.
6. It is false as already aforementioned.
7. I received the legal demand notice and also replied to the same.
8. As already aforementioned, the cheques in question were given to the Complainant as security for advancing loan which was never actually given/paid by the Complainant.
9. The Complainant has filed a false case against me and has further harassed by also filing the case qua the said property alleging that Complainant was not aware about the bank loan. I had already sent a legal notice to the Complainant regarding the dispute and Digitally signed by POOJA POOJA YADAV YADAV Date:
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demanding back my cheques but the
Complainant failed to reply. I have filed a police complaint regarding the same.
9. Yes, I want to lead defence evidence and want to enter the witness box.
That being case, matter was then listed for DE.
DEFENCE EVIDENCE:
11. DW1 was examined on 25.11.2021 and produced produced the legal notice dt. 06.12.2012 which was exhibited as Ex. DW1/1, Postal AD card exhibited as Ex.D1/2, speed post receipt exhibited as DW1/3, Registered post exhibited as Ex. DW1/4, complaint dt. 22.01.2013 to SHO PS Manadawali exhibited as Ex.
DW1/5 and the complaint to the police commissioner exhibited as DW1/6, cross examined and discharged on 21.07.2022. DW2 was examined in chief, cross examined and was discharged on 08.04.202. DW3, SI Vikash Kundu was examined on 08.04.2022 and produced DD Entry and dispatach diary register marked as MarkX and was discharged on 08.04.2022. DW4, ASI, Dalip was examined on 13.05.2022 and produced complaint diary register bearing S. NO. 789 dt. 30.01.2013/typed document exhibited as Ex. DW4/1 (OSR) and got discharged on 13.05.2022. DW 5, ASI Amit Kumar was examined on 13.05.2022 and produced the copy of the certificate of destroyed record of HAC Branch, East District vide order no. 301 Digitally Page no. 9 of 34 signed by POOJA POOJA YADAV YADAV Date:
2023.05.26 19:48:16 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra 370/HAR/East Distt. dt. 05.01.2022 which was exhibited as Ex. DW5/1 and certificate dt. 06.05.2022 was exhibited as Ex. DW5/2 and got dischared on 21.07.2022. No other witnesses were examined. The matter was then fixed for final arguments.
FINAL ARGUMENTS:
12. That the final arguments were advanced by Ld. Counsels of the Complainant as well as the Accused and were heard at length. The Ld. Counsels for the Complainant as well as the Accused also submitted written arguments which were taken on record.
13. Ld. Counsel for Complainant had reiterated the facts of the complaint in his oral as well as written submissions. Besides that, it has been submitted that the Complainant has proved his case beyond reasonable doubt and the Accused has failed to rebut the presumption arisen in favour of the Complainant.
It is further submitted that the Accused has failed to prove by oral or documentary evidence that no money transaction ever occurred between the parties. The Accused has admitted her relationship with the Complainant during her statement u/s 313 Cr.P.C. The same is also corroborated by the testimony of DW 2 ie., Ms. Urmila Sharma.
14. It was further submitted by the Ld. Counsel for Complainant that the Accused has taken a very weak Digitally signed by POOJA POOJA YADAV Page no. 10 of 34 YADAV Date:
2023.05.26 19:48:24 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra defence and has not been able to prove the same. The alleged complaints made by the Accused with police officials have been attempted to be proved by DW3, DW4 and DW5 but failed as the original complaint had been destroyed by the time witnesses were examined and thus remain not proved. Moreover, the said complaints were filed after presentation of the cheque in question and no civil or criminal complaint has been filed against the Complainant for recovering the alleged five security cheques.
15. The arguments were concluded by submitting that all the requirements u/s 138 NI Act have been duly fulfilled despite that the Accused has failed to make the payment and since the Accused has admitted her signature on the cheque in question, the presumption has arisen in favour of the Complainant which remains unrebutted for the abovestated reasons and hence, his complaint may be allowed and the Accused be convicted. The Ld. Counsel for the Complainant has placed reliance upon the following judgments to buttress his contentions:
a. "Rangappa Vs. Srimohan of Hon'ble Apex Court, (2010) 11 SC, 441.
b. Kumar Exports Vs. Sharma Carpets (200) 2SCC 492.
c. M.S. Narayana Vs. State of Kerala, (2006) 6,SCC 39 of Hon'ble Apex Court. POOJA YADAV Digitally signed Page no. 11 of 34 by POOJA YADAV Date: 2023.05.26 19:48:46 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra d. ICDS Ltd. Vs. Beena Shabeer 2002 (2) SCC 426 e. Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr. (crl. Appeal no. 729/2015) of Hon'ble Delhi High Court.
16. Per contra, the Ld. Counsel for Accused has argued that the Accused had sought a friendly loan of Rs.5,00,000/ from the Complainant for paying the loan with interest, borrowed from the Kangra Cooperative Bank, Mayur Vihar, Phase1, Delhi and in lieu of that five postdated cheques bearing no. 017036, 017038, 017039, 017040 and 017041 (including the cheque in question) wherein the amount in digit and the date only were filled by the Accused, were given as security to the Complainant in presence of Ms.Urmila Sharma, DW2. Subsequently, the Complainant did not lend the said loan amount of Rs.5,00,000/ and started to avoid the Accused and even refused to return the abovestated five postdated cheques to the Accused. Moreover, a dispute arose between the Accused and the wife of the Complainant over a property transaction which led to hostility between the parties. In such circumstances, the Accused instructed her banker to stop payment against all the above stated five postdated cheques and was constrained to issue a legal notice dated 06.12.2012, Exhibit CW1/D1 to the Complainant Digitally signed by POOJA Page no. 12 of 34 POOJA YADAV YADAV Date:
2023.05.26 19:48:55 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra which was duly received by the Complainant on 08.12.2012 as per the AD card, Exhibit DW1/2, speed post receipt, Exhibit DW1/3 and registered post receipt, Exhibit DW 1/4. The receipt of the said notice was even admitted by the Complainant in his evidence and despite that, the Complainant chose not to reply to the same and remained silent from which it can be safely inferred that the contents of the said notice have been admitted by the Complainant. Not only the notice was issued to the Complainant by the Accused but the Accused also approached the law enforcement agencies vide her complaint dated 22.01.2013 to the SHO Mandawali Fazalpur duly registered as DD number 69/B, ExihibitDW1/5, complaint dated 22.01.2013 to the Commissioner of Police, Delhi, duly received on 24.01.2013, Exhibit DW 1/6. The Accused had replied to the legal demand notice of the Complainant by the reply dated 04.04.2013, Exhibit CW1/E and never executed/signed any promissory note/ receipt dated 18.03.2012, Mark A as alleged by the Complainant.
17. It was vehemently submitted that the document Exhibit CW2/B has not been duly proved as the same was attempted to be proved by Sh. Roshan Lal, CW2, who was neither party to the said document nor the same was executed in his presence. He failed to explain as to how he got in the possession of the said document, Digitally signed by POOJA POOJA YADAV YADAV Date:
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hence, the said document remains not proved and hence, cannot be read in evidence Complainant himself being the best witness could have proved the said document, if at all.
18. Ms. Urmila, DW2 has proved that the Accused handed over five post dated cheques as security to the Complainant in her testimony dated 08.04.2022 and no amount whatsoever was ever lent to the Accused as alleged by the Complainant. The financial viability of the Complainant is also in question as despite several opportunities, the Complainant failed to place on record balance sheets for the year 2011 to 14 in order to substantiate his claim of having financial capacity to lend such a big amount to the Accused.
19. Further it is submitted that the Complainant borrowed a sum of Rs.7,00,000/ from Mr. Roshan Lal, out of which a sum of Rs.5,00,000/ was lent to the Accused however, Mr Roshan Lal, CW2 in his evidence could not prove the same as his bank account statement, Ex.
CW2/A reflects transaction of Rs.6,00,000/only and nothing can be inferred about the person with whom the said transaction occured. Nothing has come forth in evidence qua the remaining amount i.e., Rs. 1 lakh.
20. The Accused has been consistent throughout the trial qua document MarkA which was neither executed nor signed by the Accused ever. For the reasons above, the Accused has been able to rebut the presumption arisen Digitally signed by Page no. 14 of 34 POOJA POOJA YADAV YADAV Date:
2023.05.26 19:49:11 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra in favour of the Complainant, thus, the Complainant is liable to be dismissed and the Accused be acquitted.
21. The Accused has relied upon the following judgments in support of his contention.
i) Basalingappa Vs. Mudibasappa of Ho'ble Superme Court of India Crl Appeal No. 636 of 2017
ii) M. S. Narayan Menon Vs. State of Kerala of Hon'ble Supreme Court of India Crl Appeal No. 1012 of 1999.
iii) Satish Kumar Vs. State of NCT, Delhi of Hon'ble Delhi High Court Crl. L. P. 95/2006.
22. I have gone through the written submissions filed by the parties and the judgments relied upon by them. The judgments relied upon by the parties are distinguishable from the present case on the basis of facts. However, the undersigned has remained mindful of ratio laid down in the said judgment.
LEGAL POSITION:
23. In order to constitute an offence u/s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant1:
(a) a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain 1Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. AIR 2000 SC 954, Delivered by Honorable Division Bench of Justice K.T.Thomas & Justice D.P.Mohapatra, Supreme Court of India on 30032011.*modified in consonance with the amendments brought subsequent to the judgement dated 23.02.2000 in the NI Act.
Digitally
signed by
POOJA
POOJA YADAV
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amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) that the cheque has 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;
(c) that the cheque has been returned by the drawee bank unpaid, either for the reason that 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;
(d) that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
(e) that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
24. That the legal requirements mentioned hereinabove are cumulative in nature, i.e. only upon fulfilment of all the aforementioned ingredients, the drawer of the cheque is deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
Digitally signed by POOJA POOJA YADAV YADAV Date:
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25. The provision of Sec.138 is further supported by Sec.139 and Sec.118 of the Act. Sec. 139 of the Act provides presumption in favour of the Complainant and mandates that the court shall presume, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, wholly or in part of any debt or other liability. Sec.118 of the Act provides presumptions as to negotiable instruments; that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
26. Elaborating further on this point, the Apex Court in Basalingappa v. Mudibasappa2 summarised the law. The following was laid down in para 25: (SCC p. 433
434) "25. We have noticed the ratio laid down by this Court in the above cases on sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted section 139 of the Act mandates a 2 (2019) 5 SCC 418; Delivered by Honorable Division Bench of Justice Ashok Bhushan & Justice K.M.Joseph, Supreme Court of India on 09-04-2019.
Digitally signed by POOJA POOJA YADAV Page no. 17 of 34 YADAV Date:
2023.05.26 19:49:34 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra 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 the 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.
27. What emerges from the abovesaid discussion is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory; once a given set of facts are shown to exist, the presumptions u/s 139 and Sec.118 of the Act mandate the court to draw them. The same is evident by the language used, i.e., Digitally signed by POOJA POOJA YADAV Page no. 18 of 34 YADAV Date:
2023.05.26 19:49:43 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra "Shall Presume". However, the said presumptions are in the nature of rebuttable presumptions, i.e. it is open for the defence to shift the onus on the Complainant by raising a probable/ plausible defence.
28. That in a criminal prosecution u/s 138 of the Negotiable Instruments Act, 1881, the burden of proof always rests upon the Complainant, though he is aided by the presumptions existing in his favour. The Accused is not required to establish his defence beyond reasonable doubt. The Accused can establish his defence on a preponderance of probabilities and his burden may be discharged. It is sufficient if he establishes his defence on preponderance of probabilities. (Reliance placed upon Kumar Exports Vs. Sharma Carpets 2009 (2) SCC 513).
APPRECIATION OF EVIDENCE AND FINDINGS:
29. Now, I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence both oral as well as documentary on record satisfy the legal ingredients in question or not.
First Ingredient: a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
Digitally
signed by
POOJA
POOJA YADAV
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30. This ingredient pertains to the issuance of the cheque in question itself. At the outset, the alleged liability of the Accused stems from the issuance of the cheque in question, allegedly issued to the Complainant along with a promissory note to pay back the borrowed amount of Rs.5,00,000/ to the Complainant. It is pertinent to note that the Accused, in her notice of accusation has admitted her signature on the cheque in question. Further, it was admitted that the cheque has been drawn on the account of the Accused and the amount in digit were filled by the Accused. The Accused denied filling the body of the cheque in question. The defence taken by the Accused is that she handed over the cheque in question as security to the Complainant as she had to take a loan of Rs. 5 lacs from the Complainant, however, the Complainant did not advance even a single penny to her. In the meantime, she sold out her flat to the Complainant for an amount of Rs. 27 lacs in the year 2012, out of which only an amount of Rs. 8 lacs was paid by the Complainant towards consideration. The loan amount of Rs. 5,00,000/ was sought to pay back the loan with interest to the Kangra Cooperative Bank as the above mentioned property was mortgaged with the said Bank. Be that as it may, the Accused has admitted the issuance of cheque which bears her signature.
Digitally signed by POOJA POOJA YADAV YADAV Date:
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31. In view of the proposition of law as discussed above, when applied to the facts of the present case, the signature having been admitted on the cheque in question raises the presumption u/s139 read with Sec118 of the Act that the cheque was issued in discharge of a legally recoverable debt or other liability in favour of the Complainant. The presumption having been raised against the Accused; it is for the Accused to rebut the same by raising a probable defence. For doing so, the Accused has crossexamined the Complainant ie., CW1 and other two witnesses of the Complainant i.e., CW2 and CW3. Also, the Accused has herself entered the witness box and deposed as DW1. Besides her, four more witness were examined in defence of the Accused.
32. The primary question to be looked into is as to whether the Accused has successfully raised any probable defence.
33. To depose in support of the complaint, what is required is that CW - 1 and the witnesses on behalf of the Complainant be able to depose consistently in respect of the material aspects of the transaction with the Accused. It is to be kept in mind that the testimony of CW - 1 qua the transaction is not mere ipse dixit but corroborated by the documentary evidence on record, i.e., promissory note, MarkA, later exhibited as Exhibit CW2/B. Digitally signed by POOJA POOJA YADAV YADAV Date:
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34. I shall deal with the arguments advanced on behalf of the Accused one by one herebelow.
35. That first and foremost, to negate the case of the Complainant, the financial capacity of the Complainant to advance such a huge loan amount to the Accused has been questioned.
36. In this regard, the Complainant has deposed that he borrowed a sum of Rs. 7,00,000/ from his brotherin law, Mr.Roshan Lal, who was also examined as CW2. He has further deposed that Mr. Roshan Lal Bhardwaj had retired from the post of Subedar and accordingly had received his retirement funds, out of which he lent him the loan of Rs.7,00,000/. CW2, Mr. Roshan Lal in his testimony deposed having advanced a loan amount of Rs. 6,00,000/in cash to the Complainant after withdrawing the same from his account and to that effect Bank account statement was produced which was exhibited as Ex. CW2/A. Ld. Counsel for Accused has in this regard submitted that the said account statement does not reflect as to whom the money was transferred and if, at all, any money was transferred then, it was only, Rs. 6 lakh and not Rs. 7 lakh as alleged by the Complainant. The witness CW2 has deposed that he had got retired from his service i.e., from the post of Subedar in the proximity of relevant time period and had accordingly, received his Digitally signed by POOJA POOJA YADAV YADAV Date:
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retirement funds/ dues, out of which, Rs. 6 lakh was advanced to the Complainant, being his brotherin law. When the entire deposition of the witness, CW2 is read, it is apparent that remained unshakable in his testimony and has been able to explain as to how he arranged this huge amount available with him which was lent to the Complainant on cordial relations, the Complainant being the brotherinlaw of CW2. Moreso, he has explained that since his salary did not fall under the head of taxable income, hence, he did not use to file his ITR. Minor discrepancies in the testimony which is not qua the material aspect would not shake the credibility of the witness as long as he has been unimpeachable in his testimony when seen in entirety. Similarly, the complainant ie., CW2 has remained consistent in his testimony and hence, his testimony is worthy of credit.
37. Moreso, the argument that the Complainant has not shown the loan amount advanced to the Accused in his ITR is of no legal consequence as far as this matter is concerned. The position of law is settled in this regard that noncompliance of any of the provisions of the applicable Tax laws may entail penalty under those laws however, it cannot be the basis to discard the case of the Complainant which has otherwise been proved through independent witnesses/ cogent material. Reliance in this regard is placed upon the Digitally signed by POOJA POOJA YADAV YADAV Date:
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judgment of the Hon'ble Delhi High Court titled as Sheela Sharma v. Mahender Pal [2016 SCC Online Del 4696]. In the present case, the transaction between the parties has been proved by independent witnesses as much as by one of the eyewitnesses himself who was one of the marginal witnesses at the time of execution of the promissory note dt. 18.03.2012 which is Exh. CW2/B which is the most crucial documentary evidence and the most contested one from the side of the Accused, arguments qua the same is dealt with in succeeding paragraph. In view of the above, the argument qua financial capacity of the accused is not acceptable.
38. The second limb of the argument raised by the Ld. Counsel for Accused is that the document, Exh. CW 2/B has not been duly proved as the same was produced by CW2 in his evidence who was neither a party to it nor the same was executed in his presence. If at all, the competent person who could have proved the same was any, that was the Complainant himself or any of the marginal witnesses of the promissory note/receipt dt. 18.03.2023, Ex. CW2/B. It is rightly submitted that the same must have been proved by the Complainant himself or by any of the marginal witnesses, neverthless, the Court does not agree with the submission entirely that due to abovesaid discrepancy the said document has not been duly Digitally signed by POOJA Page no. 24 of 34 POOJA YADAV YADAV Date:
2023.05.26 19:50:39 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra proved and hence cannot be read in evidence for the reasons discussed herein after.
39. Perusal of the record clearly shows that the photocopy of the promissory note/ receipt dated 18.03.2012, Ex. CW2/B was proved by the Complainant in his evidence by way way of affidavit, however, since the said document was not in original but a photocopy, hence, it was identified as Mark A. Later, the original of the said promissory note was produced by CW2 in his evidence. Be that as it may, the Court cannot overlook the fact that the document produced by CW2 in his evidence is the original of the document Mark A and the same has never been disputed by the defence. The only contention in this regard is that CW2 cannot prove the said promissory note/ receipt dt. 18.03.2012. Moreover, a specific question was put to the Accused in her statement u/s313 Cr.P.C read with Sec281 Cr.P.C which is reproduced herein below alongwith the reply of the Accused for reference:
"Q4. It is in evidence against you that you executed a promissory note qua the aforesaid loan at MarkA later identified as Ex.CW2/B upon furnishing the original. What do you have to say?
Ans. It is false. I never executed such a document."
Even the Accused herself in her testimony on 25.11.20121 has deposed that " .........I have never executed and signed any promissory note and receipt Digitally signed by POOJA POOJA YADAV YADAV Date:
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dated 18.03.2012 which is already marked as MarkA and is alleged by the Complainant.........." . From the above, it is unequivocally clear that the Ex.CW2/B is the original of the document Mark A which was proved by the Complainant in his evidence and no objection qua mode of proof was ever taken in regard to this document by the Accused. The Accused has merely denied her signature on the said document Ex.CW2/B and execution of the same throughout the trial without leading any cogent evidence to disprove the same. No handwriting expert has been examined on behalf of the Accused. No evidence has been led by the Accused to show that the document, Ex.CW2/B is forged and fabricated. It was the Accused who had denied the signature on the document Ex. CW2/B and it's execution; in light of the presumption u/s139 NI Act read with Sec118 NI Act, having been arisen in favour of the Complainant, it was incumbent upon the Accused to disprove the document Mark A later identified as Ex.CW2/B which the Accused has failed to do by leading any cogent evidence.
40. Besides the promissory note/ receipt dated 18.03.2012, the transaction between the parties had occurred in front of CW3 who was eye witness to the transaction and has deposed to that effect. He also deposed that the Accused had taken loan to contest MCD elections. This plea on behalf of the Complainant Digitally signed by POOJA POOJA YADAV Page no. 26 of 34 YADAV Date:
2023.05.26 19:50:56 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra is rather further strengthened by the testimony of the defence witness, DW2, Ms. Urmila who affirmed the said factum in her testimony.
41. The testimony of CW3 has remained consistent in material aspects qua the transaction in question which led to issuance of cheque in question and his evidence is worthy of credit.
42. The last limb of the argument taken by the Ld. Counsel for Accused is that one legal notice dated 06.12.2012, which is ExCW1/D1, was duly served upon the Accused prior to the presentation of the cheque in question whereby the Complainant was informed about the instructions to the banker of the Accused to stop payment qua five postdated cheques issued by the Accused to the Complainant. The service of the same was even admitted by the Complainant in his crossexamination, despite that, the Complainant chose neither to reply to the said legal notice, Ex.CW 1/D1 nor mentioned about the same in his statutory legal demand notice dated 20.03.2013, Ex CW1/C and the complaint. It was thus submitted that this amounts to admission on part of the Complainant about the averments made in the legal demand notice dated 06.12.2012 ,ExCW1/D1. The said argument does not hold water for the reasons discussed herein below in the succeeding paragraph. Moreover, it was submitted that Accused had also approached the law Digitally signed by POOJA POOJA YADAV Page no. 27 of 34 YADAV Date:
2023.05.26 19:51:03 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra enforcement agencies and filed complaints which were proved by the competent witnesses DW3, DW4 and DW5 qua apprehension of misuse of aforesaid five post dated cheques given as security to the Complainant and the reply dt. 04.04.2013 to the statutory legal demand notice dt. 21.03.2012 by the Accused finds mention of the same.
43. The said legal notice Ex. CW1/D1 dt. 06.12.2012 and the complaints marked as MarkX, DD Entry and dispatach diary register, Ex. DW4/1 (OSR), complaint diary register bearing S. NO. 789 dt. 30.01.2013/typed document, Ex. DW5/1, copy of the certificate of destroyed record of HAC Branch, East District vide order no. 301370/HAR/East Distt. dt. 05.01.2022 and Ex. DW5/2, certificate dt. 06.05.2022 are all self serving documents in favour of the Accused. Failure on the part of the Complainant to reply to the legal notice dated 06.12.2012, Ex.CW1/D1 or nonmentioning of the same in his statutoty legal demand notice dated 20.03.2013, ExCW 1/C or complaint is of no legal consequence as far as this present case is concerned.
The complaints Ex. DW4/1 (OSR) lodged by the Accused with the law enforcement agencies, at best only, prove the fact that such complaints were lodged by the Accused and not beyond that. The Accused has failed to prove her defence by leading any cogent evidence to the effect that she never received the loan Digitally signed by POOJA POOJA YADAV Page no. 28 of 34 YADAV Date:
2023.05.26 19:51:11 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra amount of Rs.5,00,000/ from the Complainant against which aforementioned five security cheques were issued to the Complainant and to disprove Ex. CW2/B. It is rightly argued by the Ld. Counsel for Complainant that the defence raised by the Accused begs a question as to why no civil or criminal case was ever filed against the Complainant to recover the alleged five postdated security cheques given the Complainant.
44. The Accused has herself entered the witness box and deposed her defence on oath denying the case of the Complainant entirely without leading any cogent evidence/material to substantiate her defence.
Similarly, the defence witness, DW2, has not been able to prove the defence of the witness. She has deposed that she was present at the time when five postdated security cheques were given by the Accused to the Complainant. The Accused had never in her defence till the stage of recording of statement u/s313 Cr.P.C read with Sce281 Cr.P.C had stated that she gave the fivepostdated security cheques in front of a witness in as much as an eye witness namely Ms. Urmila, DW2. This raises a doubt on the testimony of DW2 that had she been the eyewitness, she would have found mention in the plea of defence of the Accused throughout the trial. Moreover, her testimony cannot be given weightage in view of the oral evidence Digitally signed by POOJA POOJA YADAV YADAV Date:
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adduced on behalf of the Complainant substantiated with the documentary evidence. Her testimony does not inspire the confidence of the court.
45. When viewed this way as indicated herein above, the evidence led on behalf of the Complainant inspires the confidence of the court on material aspects of the Complaint.
46. Ultimately, far from establishing the line of defence taken throughout the trial, the Accused has not even been able to shake the case of the Complainant or cast any reasonable doubt upon it. When the issuance of the cheque in question itself is well admitted, it would be quite fallacious to hold that the case of the Complainant would fall only on the ground of mere denial by the Accused of the entire case of the Complainant without any probable evidence. The attempt of the Accused to establish her version has failed due to lack of cogent evidence to substantiate the same in order to raise a probable defence to rebut the case of the Complainant as discussed above. It is trite law that the Court cannot insist upon negative evidence to be led by the Accused, however, bare denail of passing of consideration would not be taken as defence. Something has to be brought on record by the Accused to disprove the presumption. The defence has failed to satisfy the test of preponderance of Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.05.26 19:51:30 +0530 Page no. 30 of 34 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra probabilities and the presumption raised against the Accused remains unrebutted.
47. Thus, what emerges from the above is that the Accused could not substantiate her version by giving either direct cogent evidence in her favour or showing such circumstances which could create aspersions on the story of the Complainant .
48. The upshot of the above discussion is that the Accused has not been able to rebut the presumption raised against her. Hence, the said ingredient stands fulfilled as against the Accused.
Second Ingredient: that the cheque has 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;
49. This ingredient stands satisfied on a bare perusal of the cheque in question Ex. CW1/A which bears no. 017039 dt. 05.03.2013 for total sum of Rs. 2 lakh and the return memo Ex. CW1/B which bears the date of 06.03.2013. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused. Third Ingredient: that the cheque has been returned by the drawee bank unpaid, either for the reason that Digitally signed by POOJA POOJA YADAV Page no. 31 of 34 YADAV Date:
2023.05.26 19:51:40 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra 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;
50. The bank return memo Ex. CW1/B dated 06.03.2013 on record states that the cheque in question has been returned dishonoured for thereason "Payment stopped by drawer". The defence has led no evidence to controvert the same and hence, this ingredient also stands satisfied as against the Accused.
Fourth Ingredient: that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
51. That it is a trite law that in order to maintain a complaint u/s138 NI Act, serving of legal demand notice to the Accused before filing the case is imperative. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/C to the Accused. The original postal receipts dated 21.03.2013 & track reports in respect of the same are already on record as Ex. CW1/D (Colly).
Digitally
signed by
POOJA
POOJA YADAV
Page no. 32 of 34 YADAV Date:
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52. The said ingredient has not been disputed by the
defence at any point during the trial as the Accused has admitted that she replied to the same vide her reply dated 04.04.2013 which is Exhibit CW1/E wherein she has denied any liability towards the Complainant and reiterated the facts mentioned in her own legal notice, Ex.CW1/D1 dt. 06.12.2012 issued to the Complainant and served upon him. Resultantly, the said ingredient stands fulfilled as against the Accused.
Fifth Ingredient: that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
53. In the instant case, it is an admitted position that the Accused has failed to pay the amount due under the cheque in question, on the ground that she does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused.
DECISION
54. In view of the abovediscussion, considering all the facts and circumstances, material/ evidence on record, as all the ingredients of the offence have been cumulatively Digitally signed by Page no. 33 of 34 POOJA POOJA YADAV YADAV Date:
2023.05.26 19:51:59 +0530 CC No. 4664716 Sat Prakash Sharma Vs. Rani Mishra satisfied against the Accused, Rani Mishra the Accused Rani Mishra is hereby convicted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
Order: Convicted.
Announced in open Court on 26.05.2023 in presence of the convict.
Copy of this judgment be given free of cost to the convict.
This order is running into 34 signed pages.
This judgment is dictated to Ms. Deepa, PA attached with the undersigned.
Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.05.26 19:52:07 +0530 (Pooja Yadav) MM/ East /KKD Courts/Delhi 26.05.2023 Page no. 34 of 34