Delhi District Court
Prem Prakash vs . Heena Bhasin on 5 July, 2023
Prem Prakash Vs. Heena Bhasin
IN THE COURT OF MS SHIVANGI MANGLA: MM DC-
02:
NORTH-WEST DISTRICT ROHINI, NEW DELHI.
CC NI ACT 1969/2021
Prem Prakash Vs. Heena Bhasin
Name of complainant : Prem Prakash S/o Sh
Baij Nath Sigh, R/o H
NO. 322 B, Kahimir
Block, Tirathankar
Nagar, Karala, North
West Delhi - 110081
Name of Accused : Heena Bhasin H No.
564/14, Old DLF, Sec-14,
Gurgon Delhi Road,
Gurgaon - 122001
Offence complained of : 138 NI Act
Plea of accused : Not guilty
Arguments heard on : 17.03.2023 24.05.202 &
24.06.2023
Date of judgement : 05.07.2023
Decision : CONVICTION
CC NI ACT 1969/2021 Page No. 1 of 8
Digitally signed
by SHIVANGI
SHIVANGI MANGLA
MANGLA Date:
2023.07.05
16:06:41 +0530
Prem Prakash Vs. Heena Bhasin
JUDGEMENT
1. Vide this judgement, I shall decide the present matter, CC No. 1969/2021 filed by Prem Prakash against the dishonour of the cheque bearing no. 940369 dated 13.01.2021 for Rs. 11,90,000/- drawn on Karnatak Bank Ltd., Sec-14, SCO, Gurgaon (henceforth the cheque in question).
2. Briefly stated, the facts as alleged in the complaint are that the accused approached the complainant through a common friend namely Ajay Mangala and borrowed a friendly loan of Rs. 11,90,000/- in cash in 4 installments in November 2019. Accused was in need of said money for getting his mortagaged jewellery released from the bank. Initially, the promsie was made for returning the said amount within next 6 months but thereafter due to covid-19, accused promised to repay the said amount by November 2020. Thereafter, after much follow-up accused issued a cheque bearing no. 940369 dated 13.01.2021 for Rs. 11,90,000/- drawn on Karnataka Bank Ltd., Sec-14, SCO, Gurgaon in favour of the complainant. On presentation, the said cheque was returned as unpaid as dishonoured with remarks "Funds Insufficient" vide returning memo dated 12.04.2021. Thereafter, complainant contacted the accused about the factum of dishonour of cheque and demand the borrowed amount but the accused did not pay the same.
CC NI ACT 1969/2021 Page No. 2 of 8 Digitally signed by SHIVANGISHIVANGI MANGLA MANGLA Date:
2023.07.05 16:06:47 +0530 Prem Prakash Vs. Heena Bhasin
3. Thereafter, complainant sent a legal notice dated 16.04.2021 to the accused through registered AD calling upon him to pay the loan amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. On appearance of accused, notice of accusation u/s. 251 Cr.PC was framed upon the accused to which she pleaded not guilty and claimed trial.
6. To prove his case, the complainant adopted his pre- summoning evidence affidavit and has relied upon following documents:
1) Original cheque bearing no. 940369 dated 13.01.2021 for Rs.11,90,000/- drawn on Karnataka Bank Ltd., Sec-14, SCO, Gurgaon Ex.
CW-1/A
2) Bank returning memo dt. 12.04.2021 Ex. CW-1/B.
3) Copy of legal notice dated 16.04.2021 Ex. CW-1/C.
4) Original speed post receipts dt. 16.04.2021 Ex. CW-
1/D.
5) Tracking report Ex. CW-1/E.
CC NI ACT 1969/2021 Page No. 3 of 8
Digitally signed
by SHIVANGI
MANGLA
SHIVANGI
Date:
MANGLA 2023.07.05
16:06:55
+0530
Prem Prakash Vs. Heena Bhasin
7. Considering the conduct of accused and his approach to deliberately delay the proceedings, it was found by the Ld. Predecessor Court vide order dt. 04.08.2022 that on the basis of defence taken by the accused at the time of notice framing, no ground is made out to allow the opportunity for cross examination of complainant and witnesses. Accordingly, examination of CW1/complainant was recorded on 07.01.2023. Pursuant to which the witness no. 5 Ajay Mangala was dropped from the list of complainant witnesses by Ld. Counsel for the complainant. Statement of accused u/s.313 CrPC was recorded on 07.01.2023. thereafter the matter was fixed for DE.
8. Thereafter accused chose not to lead the DE. Accordingly, the DE was closed and the matter was listed for final arguments. Both the counsels have filed their written arguments in length. Apart from that oral arguments were also heard.
9. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.CC NI ACT 1969/2021 Page No. 4 of 8 Digitally signed by SHIVANGI
SHIVANGI MANGLA MANGLA Date:
2023.07.05 16:07:04 +0530 Prem Prakash Vs. Heena Bhasin iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. The accused admitted her signatures on the cheque in question at every stage; from notice under section 251 Cr.P.C. to her statement under section 313 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in question was drawn for a consideration and that the complainant received the cheques in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question.
CC NI ACT 1969/2021 Page No. 5 of 8 Digitally signedSHIVANGI by SHIVANGI MANGLA MANGLA Date: 2023.07.05 16:07:10 +0530 Prem Prakash Vs. Heena Bhasin (Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418)
11. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant. It is now to be examined as to whether the accused has brought any material on record dislodging the presumption which meets the standard of preponderance of probabilities.
12. The accused admitted her signatures, filling of amount in words in the cheque in question, and the receipt of legal notice. It was her further submission "I had requested the complainant for some time to make the payment. I also offered him property documents and told that he is at liberty to sell house to recover his money. The cheque in question was given as a security cheque. I had assured the complainant that as and when I receive the bayana amount, I will return the payments. However, the complainant has filed the present complaint". As noted earlier, the accused has neither led any defence evidence nor the complainant was cross-examined to rebut the presumptions arisen in favour of complainant.
CC NI ACT 1969/2021 Page No. 6 of 8 Digitally signed by SHIVANGISHIVANGI MANGLA MANGLA Date:
2023.07.05 16:07:16 +0530 Prem Prakash Vs. Heena Bhasin
13. As per the arguments led by the Ld. Counsel for accused, that there is no loan transaction between complainant and accused at any point of time. It has been further argued, that there has been no mentioning in the complaint regarding issuance of two legal notices to accused, one in month of February and another in April, 2021, which makes the present matter barred by limitation. To support his arguments, he has relied upon the judgement in case of "Indrapuram Habitat Centre Pvt. Ltd. & Anr. Vs. Stup Consultants Pvt. Ltd- that Once cause of action for filing a complaint has arisen, the subsequent re-presentation of cheque and its dishonourment would not give rise to a fresh cause of action for filing a complaint under Section 142(b) of the Act".
And in the case of Galore Packaging India Pvt. Ltd. Vs. Sanjay Sharma- "Law mandate only a demand for payment by giving a notice in writing and not a legal notice in any prescribed format- Letter issued of appellant fulfill the said condition- Once a Notice for demand of payment is issued then cause of action and limitation for filing a complaint under S.138 commences."
14. All the said averments and arguments remains unproved and unrebutted in absence of any cogent evidence. Moving Further, No iota of evidence has been led by the accused in support of the statements made by her and to prove her case even on preponderance of probabability.
CC NI ACT 1969/2021 Page No. 7 of 8 Digitally signed by SHIVANGI MANGLASHIVANGI Date:
MANGLA 2023.07.05
16:07:22
+0530
Prem Prakash Vs. Heena Bhasin
I5. In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI Act. And on the consideration of the totality of factors pleaded by the accused in his defence, it becomes clear that the Accused has merely paid lip service to his defence and has not led any cogent evidence to establish it or draw any circumstance against the case of the complainant which probabilizes his defence. Mere bald denial or pleading that the cheque in question was issued as security would not operate to absolve the accused of his liability. Therefore, in light of the above reasoning, it is the considered opinion of this court that, the accused has miserably failed to rebut the presumption u/s 118 and 139 of NI Act which has arisen in favour of the complainant and has failed to show that his defence is probable.
16.Accordingly, accused Heena Bhasin is convicted of the offence u/s 138 NI Act.
17. Let the convict be heard on the quantum of sentence.
18. Let a copy of this judgement be given to convict free of cost.
Digitally signed by SHIVANGISHIVANGI MANGLA Announced in the open Court On 05.07.2023 Date:
MANGLA 2023.07.05 16:07:28 +0530 (Shivangi Mangla) (MM(NI) Digital court02) NorthWest, Rohini New Delhi/05.07.2023 Note : This judgement contains 8 Pages and each page is signed by the undersigned.CC NI ACT 1969/2021 Page No. 8 of 8