Delhi District Court
Cnr No.Dlsw020087522020 Ashish ... vs Jayti Khurana Page 1 Of 15 on 22 December, 2022
IN THE COURT OF MS. JYOTI NAIN
METROPOLITAN MAGISTRATE (SOUTH WEST)
N I ACT-10, DWARKA DISTRICT COURT : NEW DELHI
CC NO: 6970/2020
CNR no.DLSW02-008752-2020
Ashish Sachdeva,
S/o Late Sh. B.R. Sachdeva,
R/o House No.274, DG-III,
Paryavaran Apartments,
Vikas Puri, New Delhi-110018.
.....Complainant
Versus
Jayti Khurana
W/o Sh. Vikas Khurana,
R/o House No.B-56/1,
Upper Ground Floor,
Sant Garh near by Ravi Dass Mandir,
New Delhi-110018.
.......Accused
Offence Complained of or proved : U/s 138 of Negotiable
Instruments Act,
1881
Plea of the Accused : Pleaded not guilty
Date of filing : 19.02.2020
Date of Institution : 20.02.2020
Date of reserving judgment/order : 08.12.2022
Final Order/Judgment : Acquittal
Date of pronouncement : 22.12.2022
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act ').
Digitally
signed by
Jyoti Jyoti Nain
Date:
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2. Briefly stated, case of the complainant is that accused on account of her long acquaintance and friendly relations with complainant approached him and his friend for an interest free friendly loan of Rs.3,60,000/- on 08.06.2018. That on persuasion and repeated requests, complainant agreed to provide friendly loan and accordingly, lent her Rs.3,60,000/- for a period of six months on assurance that she would repay the said amount within a period of six months. That in order to discharge her liability, accused issued a cheque bearing no.000033 dated 20.09.2019 for a sum of Rs.1,00,000/- drawn on Kotak Mahindra Bank, Lajpat Nagar, New Delhi (hereinafter referred to as cheque in question), with assurance that the same would be honored on its presentation.
That the complainant presented the cheque in question with his banker but the same was dishonored with remarks "Stop Payment" vide return memo dated 13.12.2019. That thereafter, the complainant sent a legal demand notice dated 31.12.2019 through post demanding payment of the cheque amount within 15 days of the receipt of notice, but to no avail. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881.
3. On 28.05.2022, pre-summoning evidence was led by the complainant and in his pre-summoning evidence, complainant examined himself on affidavit Ex.CW1/A. He reiterated the contents of complaint and placed on record following documents:-
(i) Copy of letter dated 08.06.2018 is Ex. CW1/1 (OSR);
Digitally
(ii) Original cheque is Ex. CW1/2; signed by Jyoti Jyoti Nain Date:
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(iii) Returning Memo is Ex. CW1/3;
(iv) Legal Notice dated 31.12.2019 is Ex. CW1/4;
(v) Postal receipts along with tracking report are Ex.CW1/5 and
(vi) Certificate u/sec 65B of the Indian Evidence Act is Ex.
CW1/6.
4. Upon appreciation of pre-summoning evidence, cognizance of offence under section 138 of The Negotiable Instruments act was taken and summons were issued to the accused.
5. On 18.08.2022, notice was served on the accused, to which she pleaded not guilty and claimed trial. She admitted her signatures and date on the cheque and denied filling of rest of the particulars. She denied receiving of legal demand notice but admitted that the address mentioned on the legal demand notice is her correct address. Further, in her defence, accused stated as follows:-
"I know the complainant through my husband. I had taken a friendly loan from the complainant and his friend namely Manish Khattar of Rs.3,60,000/. At the time of availing loan, I had given three blank signed cheques as security. The cheque in question is one of those cheques. I have already repaid almost full loan amount. I do not owe any liability towards the complainant. Despite multiple requests, complainant did not return my security cheques Digitally and has misused the same". signed by Jyoti Jyoti Nain Date:
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6. Complainant evidence:
Thereafter, vide order dated 18.08.2022, on the oral request of the accused, plea of accused u/sec 145(2) NI Act to cross- examine the complainant was allowed. In complainant's evidence, complainant examined himself as CW1. He was subjected to cross-examination at length by Ld. Counsel for the accused. No other complainant witness examined and vide separate statement complainant closed his evidence on 10.11.2022.
7. Examination of the accused under section 313 Cr.P.C.:
Thereafter, the accused was examined under section 313 Cr. P.C. by the court on 10.11.2022 wherein she stated as follows:-
"It is correct that complainant was an acquaintance but it was my husband who shared friendly relations with him. It is correct that I had approached the complainant and his friend on 08.06.2018 for an interest free friendly loan of Rs.3,60,000/- as I was in need of money.
Complainant along with his friend namely Sh. Munish Khattar had lent me a sum of Rs.3,60,000/- collectively for a period of six months. At that time only, I had given three undated security cheques to the complainant and Sh. Munish Khattar. Also I had given letter Ex.CW1/1. I have already repaid almost full loan amount to the complainant and Sh. Munish Khattar. Ex.CW1/7, Ex.CW1/8 and Ex.CW1/DX1 reflects the same. Payment was made in the account of the complainant, Paytm wallet linked Digitally signed by Jyoti Jyoti Nain Date:
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with the mobile number of the complainant and also Paytm wallet linked with the mobile number of the son of Sh. Munish Khattar. Also rest of the payment was made by way of cash though no receipt was issued by the complainant and Sh. Munish Khattar with respect of the same. On repaying, the entire loan amount, when I asked the complainant and Sh. Munish Khattar to return my security cheques then on one pretext or the other, they avoided returning my cheques. Dishonour of cheque is a matter of record. I did not receive the legal notice. Complainant has misused my security cheque. I do not owe any liability towards the complainant as well as Sh. Munish Khattar. The present complaint case is false and frivolous".
Further, accused did not prefer leading defence evidence. Thereafter, matter was directly listed for final arguments.
8. Arguments, Law Applicable and Appreciation of Evidence:
I have perused the entire record as well as evidence led by the complainant as well as by the accused and heard final arguments on behalf of both the parties at length. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first :-
For the offence under Section 138 the Act to be made out against the accused, the complainant must prove the following points, that:-
(i) the accused issued a cheque on account maintained by him with a bank and the said cheque has been presented to the bank within a period of three months from the date of cheque or within Digitally signed by Jyoti Jyoti Nain Date:Page 5 of 15 Nain
2022.12.22 CNR no.DLSW020087522020 Ashish Sachdeva vs Jayti Khurana 16:22:15 +0530 the period of its validity.
(ii) the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
(iii) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(iv) 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.
(v) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Out of these five points, accused has raised objections regarding point number (ii) and (iv) only.
9. So far as contention is raised regarding receipt of legal demand notice, it can be seen that the accused has admitted the address mentioned on the legal demand notice as her correct address. Thus, presumption can be drawn u/sec 27 of General Clauses Act, 1897 which states that when a notice is sent by post to the correct address then the same shall be presumed to have been duly served i.e. legal demand notice once sent on the correct address of the accused, there is a deemed presumption of service, the same has been held by a three judges bench of the Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555: "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had Digitally signed by Jyoti Jyoti Nain Date:
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made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
Thus, complainant has been able to prove (iv) ingredient for the commission of offence u/sec 138 NI Act as well.
10. As far as the contention regarding (ii) ingredient is concerned, the N I Act, itself raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration 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;"
Section 139 of the N.I Act further provides as follows: Digitally signed by Jyoti Jyoti Nain Date:
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"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".
For the offence under Section 138 of the Act, the presumptions under Secton 118 (a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Section 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
Since in the present case, accused has admitted his signatures on the cheque, the compulsory presumption is raised in favour of the complainant, but the same is rebuttable in nature on the standards of preponderance of probabilities as has been held by Hon'ble Supreme Court of India in the case of Basalin gappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page 422, where it has held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the Digitally signed by Jyoti Jyoti Nain Date:
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(ii) 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.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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.
(iv) 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.
Now we have to see whether accused has been able to rebut the compulsory presumption under section 118(a) and Section 139 NI Act raised in favour of the complainant on the standards of preponderance of probabilities.
11. In order to rebut the compulsory presumption, Ld. Counsel for accused argued that complainant has not approached the court with clean hands and has concealed and suppressed true facts. That there are various inconsistencies in the version of the complainant. That the complainant has alleged that the loan was given on 08.06.2018 for a period of six months whereas the date on the cheque in question i.e. Ex.CW1/2 is 20.09.2019 i.e. almost 14 months after taking of loan. That during crossexamination, complainant had stated that date on the cheque in question was filled up by accused or her husband which further goes on establishing the falsity of his claim as to how complainant can Digitally signed by Jyoti Jyoti Nain Date:
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permit filling up of date which is eight months post the expiration of alleged period of liability.
12. That complainant has concealed certain facts. The complaint as well evidence by way of affidavit i.e. Ex.CW1/A does not mention about the exact amount of loan advanced by complainant and his friend. It is first time mention during the crossexamination of complainant. Further the complainant has not disclosed the fact that the cheque in question was presented twice and that earlier some notice was also sent by the complainant. That complainant has also not mentioned in his complaint, the fact that accused and her husband approached him from January to March, 2019.
13. That there has been a deliberate attempt by the complainant to depose falsely during his crossexamination. In his crossexamination at one point, complainant has stated that the accused and her husband had not made any payment in his bank account or through Paytm. That thereafter, on being confronted with Ex.CW1/7, Ex.CW1/8 and Ex.CW1/DX1, complainant admitted receiving of payment in his subsequent crossexamination.
14. That during crossexamination, complainant stated that he had shown the factum of advancement of loan to the accused in his ITR but despite being given a suggestion that he has not shown the alleged loan in his ITR, complainant failed to bring his ITR reflecting the alleged loan, same shows that he had not reflected the loan in his ITR. Ld. Counsel for accused argued Digitally signed by Jyoti Jyoti Date:
Nain CNR no.DLSW020087522020 Ashish Sachdeva vs Jayti Khurana Page 10 of 15 Nain 2022.12.22 16:23:26 +0530 that complainant failed to prove that the date on the cheque in question is in the handwriting of the accused or her husband even after being given suggestion that he was deposing falsely with re spect to this fact.
15. Ld. Counsel for accused argued that it is the core defence of the accused that the cheque in question was given as security to the complainant and that she has already repaid the loan amount that she had taken from the complainant and same is proved by Ex.CW1/7, Ex.CW1/8 and Ex.CW1/DX1. Ld. Coun sel for accused argued that accused has been able to prove her defence on the basis of preponderance of probabilities and com plainant has failed to prove his case beyond reasonable doubt. Ld. Counsel for accused has relied upon various judgments, these being S.P. Chengalavaraya Naidu Vs. Jagannath AIR 1994 SC 853, Dalip Singh Vs. State of UP & Anr. (2010) 2 SCC 114, Krishna Janardhan Bhatt Vs. Dattatraya G. Hegde, (2008) 4 SCC 54, Babu Vs. State of Kerala, 2010 (3) SCC (Cri) 1179, Tata Steel Limited (Cement Division) Vs. The State and Anr. 2012 (1) Cr. R. 264 Jhar, Starkey Laborato ries India Pvt. Ltd. Vs. Sanjay Gujral CRL.LP. No.492/2017, Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and Anr, 2022 SCC OnLine SC 1376, Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, Sripati Singh (Since Deceased) Through His Son Gaurav Singh Vs State of Jharkhand and Anr, (2021) SCC OnLine Digitally signed by Jyoti Jyoti Nain Date:
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SC 1002, C. Santhi Vs Mary Sherly & Anr. 2011, SCC On Line Ker 4173.
16. Percontra, Ld. Counsel for complainant argued that the accused has admitted taking of loan from the complainant and has not denied execution of Ex.CW1/1. That the document Ex.CW1/DX1 i.e. the Paytm statement is incomplete, since many pages in between are missing. Also, the Paytm account is used by Aditi Gambhir and not the accused and the transactions reflected are between the accused and Aditi Gambhir that too qua a differ ent loan transaction. Ld. Counsel for accused further argued that Ex.CW1/DX1 also reflects two payments of Rs.5,000/ each re ceived by accused from Aditi Gambhir. Thus, reliance cannot be put on the Paytm statement.
17. Ld. Counsel for complainant further argued that even if the defence of accused is presumed to be correct that she had made payments in the bank account and Paytm account of the com plainant, then even complainant has not received full payment of Rs.1,00,000/. Ld. Counsel for complainant argued that accused has not been able to prove her defence even on the basis of pre ponderance of probabilities.
18. This court is of the observation that the main defence of the accused is that even though she had taken a loan of Rs.3,60,000/ from the complainant and his friend but she has al ready repaid the same. That the cheque in question was given only as security to the complainant and qua this cheque, she does Digitally signed by Jyoti Jyoti Nain Date:
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not owe any liability. During crossexamination, complainant has admitted giving a loan of Rs.1,00,000/ only out of the total loan of Rs.3,60,000/. It is the case of the complainant that the cheque in question was given by the accused in order to repay the loan amount of Rs.1,00,000/ that she had taken from him. In order to prove her defence, accused has relied upon Ex.CW1/7, Ex.CW1/8 i.e. statement of account brought by the complainant himself. She has also relied upon her Paytm statement Ex.CW1/DX1. In the crossexamination, initially complainant stated that "the accused or her husband has not made any pay ment either in my bank account or through Paytm", whereas later on, on being confronted with his account statement i.e. Ex.CW1/8, complainant admitted receiving of a payment of Rs.7,800/ on 06.12.2018, Rs.4,000/ on 07.12.2018, Rs.36,000/ on 17.01.2019 and Rs.12,500/ on 05.02.2019 from the account of the accused. Complainant further admitted receiving of pay ments via Paytm as reflected by relevant entries at point A to L in Ex.CW1/DX1. Though, complainant stated that these payments were made qua a different loan transaction but has failed to es tablish existence of any other loan transaction between him and the accused. To the contention of Ld. Counsel for complainant that since, some pages are missing from Ex.CW1/DX1, thus, it cannot be relied upon, this court is of the observation that this ob jection should have been raised at the time when the complainant was confronted with this document and it will not serve much purpose by raising it now since, complainant himself has admit ted various entries in the document Ex.CW1/DX1. Since, admit Digitally signed by Jyoti Jyoti Nain Date:
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tedly, there is receiving of payment of Rs.60,300/ from the bank account of the accused and also payment of around Rs.56,400/ via Paytm from the Paytm number of the accused, which com plainant has failed to prove that those were qua a different loan transaction, thus, accused has been able to punch holes in the case of the complainant and hence, the (ii) ingredient for offence u/sec 138 NI Act is not satisfied.
19. Ld. Counsel for complainant on the other hand argued that there are certain inconsistencies and lacunas in the defence taken by the accused. To this contention of Ld. Counsel for complainant, this court is of the opinion that there may be some lacunas and inconsistencies in the defence taken by the accused but the fact that guilt of accused shall be proved beyond reasonable doubt cannot be ruled out. As has been held by Hon'ble High Court of Delhi in the case of Kulvinder Singh Vs Kapil Ahmad, 2013 SCC OnLine Del 34 that the basic principle in the criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is a slightest doubt about the commission of an offence when the benefit has to accrue to her. Also, at this stage, it is also worth mentioning the established canon of criminal law that in order to pass a conviction in a criminal case, accused "must be" guilty and not merely "may be" guilty. The mental distance between "may be" guilty to "must be" guilty is a long one and must not be travelled on surmises and conjectures, but by cogent evidence. Further, the contention raised by ld. Counsel for Digitally signed by Jyoti Jyoti Nain Date:
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complainant that defence of accused is weak and flawed, this court is of the opinion that the case of complainant shall stand on its own legs and it cannot derive strength from the weakness of the defence, nor can the court on its own make out a case for the complainant and convict the accused.
20. In view of the above discussion, this court is of the observation that accused has been able to rebut the presumption u/sec 139 NI Act on the basis of preponderance of probabilities by punching holes in the case of the complainant and complainant has failed to prove his case beyond reasonable doubt and has failed to establish guilt of the accused. Hence, complaint stands dismissed and the accused stands acquitted of the offence Digitally under section 138 NI Act. signed by Jyoti Jyoti Nain Date:
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Announced in the open court today (JYOTI NAIN)
i.e. 22nd December, 2022 MM(NIAct)-10/SW
Dwarka Courts, New Delhi
Note: This judgment contains 15 pages and each page has been signed by me.
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