Delhi District Court
Ram Shankar Gupta vs . Kalpana Pandey on 18 August, 2022
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
ROHINI DISTRICT COURTS : NEW DELHI
Ram Shankar Gupta Vs. Kalpana Pandey
PS Shalimar Bagh
U/s 138 Negotiable Instruments Act
Date of Institution : 14.07.2017
Date of Judgment : 18.08.2022
JUDGMENT
(1) Serial number of the case : 9057/2017
(2) Name of the complainant : Sh. Ram Shankar Gupta
S/o.: Late Sh. R.L. Gupta
R/o.: Se-7, Singapur, Shalimar Bagh,
Delhi.
(3) Name of the accused : Mrs. Kalpana Pandey
W/o Sh. S.K. Pandey
R/o H.No. C-10/130, Gautam Niwas,
Sector 10, Vasundhara,
Ghaziabad UP-201012
Also at:-
Prop. Of M/s Dev Gange Accessories,
Stall No. 1, Upper Ground Floor,
Sun Rises Mall,
Sector-11, Vasundhara,
Ghaziabad UP-201012.
(4) Offence complained of/ proved : U/S 138 Negotiable Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquitted
(7) Reserved for judgment on : 18.08.2022
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
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1. In brief, it is the case of the complainant that complainant knows the accused for several years; that the complainant requested on 20.02.2017 for a friendly loan of amount of Rs. 2,50,000/-; that the complainant paid the said amount on 20.02.2017; that to pay the aforesaid amount, the complainant handed over cheque bearing no. 493265 dated 25.05.2017 drawn on UCO bank, Vasundhara branch for the sum of ₹ 2,50,000/- which on presentation was returned dishonoured vide bank return memo dated 26.05.2017 on the account of funds insufficient and therefore legal notice was sent dated 08.06.2017, however despite the service of legal notice, the accused did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led pre-summoning evidence by way of affidavit (Ex CW1/A) and relied upon documents i.e., : cheque bearing no. 493265 dated 25.05.2017 for Rs. 2,50,000/- drawn on UCO Bank, Vasundhara Branch (Ex.CW1/1); the bank return memo dated 26.05.2017 (Ex CW1/2); legal notice dated 08.06.2017 (Ex CW1/3), postal receipt (Ex CW1/4 and Ex. CW1/5) which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 09.10.2017 for offence u/s. 138 NI Act.
3. After the accused entered appearance, he was admitted to bail and notice was framed against him on 09.01.2018 by the Ld Predecessor wherein the accused stated his defence that she did not know the complainant. She has taken loan from one Vijay Singh at around the time of Karva Chauth. She has returned the loan CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 2 of 16 amount to Vijay Singh from her account to the account of Vijay Singh. She had given the cheque in question to Vijay Singh but when she demanded the return of the cheque, he did not return the same. She admitted that cheque in question bears her signature. She admitted that she has received the legal notice. Further she stated that she has no legal liability towards the complainant.
4. After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 24.04.2018, the accused was permitted to cross- examine the complainant.
5. During his evidence, the complainant was duly cross examined by the counsel for accused in which he stated that he is a cricket umpire and earns approximately to Rs. 50,000 to 1 lakh. He knows the accused through her son as the son of the accused was playing cricket and he was known to him. He is not visiting to the house of the all the players who are playing cricket. He paid ₹ 2,50,000 to the accused in cash. The denomination of the currency notes which he handed over to the accused was of ₹ 2000/- and Rs. 100/-. He have only one bank account. He admitted to the fact that the demonetization of ₹ 500/- and Rs. 1000/- took on 08.11.2016. He did not remember what was the amount lying in his bank account in the month of February 2017, however ₹ 1,75,000 he has arranged himself and 75,000/- was borrowed from his friend. He further deposed that the accused stated at the time of borrowing the loan that she had purchased a flat but he did not know where she has taken the said flat. The said fact he has disclosed to his advocate while he was issuing a notice to the accused for dishonouring of cheque and at the time of filing of the present CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 3 of 16 complaint. He denied that he has not stated the said fact to his counsel because no such incident was ever happened. He further deposed that the accused address ideally is at D - 103/110, Gautam Niwas, Sector 10, Vasundhara, Sunrise Mall, Sector 11. He did not know the native place of the accused. The accused is having one son and one daughter. He did not know what is the business of the husband of the accused. He did not remember when he first met with the accused. He did not know what the son of the accused was doing. He was introduced by the accused to Vijay Singh in the year 2016. Complainant was directed to bring the business documents on the next date of hearing to which he brought a copy of passbook though not the original (Mark A). He admitted that the copy of the statement of his bank account is not reflecting his name. He deposed that he is income tax assessee since last 20 years, however, he has not shown in his ITR the alleged loan amount given to the accused. Complainant further deposed that he has disclosed in his last statement that he borrowed for Rs. 75,000/- from his friend namely Anoop Kumar Parashar, however, he does not know the father's name or his Residential address. He further deposed that no other person was present when he has given the alleged loan to the accused and the accused approached him at his residence. The cheque in question was handed over to him by the accused on 20.02.2017. The cheque in question was filled by the complainant and he admitted that the cheque was blank when he received the same. He denied that accused never handed over the cheque in question to him and the same was received from one Vijay Singh to whom the cheque in question was handed over by the accused in some other transaction. He admitted that he did not execute any loan agreement between him and the accused. He further admitted that he did not got signed any payment receipt with respect to the CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 4 of 16 alleged loan. He admitted that he has noted the address of the accused as the same was written outside the house of the accused. The amount received from his friend was in the denomination of ₹ 2000 and Rs. 100/- but he cannot tell the total number of currency notes. He denied that he has not told the name of a Anoop Kumar Parashar to his advocate from whom he has received the amount of Rs. 75,000/- at the time of issuance of legal notice and further he deposed that he have disclosed the name of his friend in his complaint however, after going through the complaint, the witness could not find the same. He deposed that the amount of ₹ 1,75,000/- was withdrawn from his bank through ATM. Again said, that he always used to keep sufficient amount in his house. He admitted that he cannot tell the rough idea about the currency note of Rs. 1000/- given to the accused and its amount. He further admitted that the date mentioned on the cheque was also filled up by him on the same date as he has given the alleged loan to the accused. He further admitted that as per income tax law, his cash transaction cannot exceed ₹ 20,000. He deposed that he has advanced the amount in cash for the reason that the accused needed to pay the builder in cash as her flat would be cancelled. He further deposed that he have not seen the document of the flat nor he have inquired regarding the said flat. Complainant deposed that he met with Vijay Singh in the house of the accused in the year 2016. However, he did not know where Vijay Singh resides. He denied that he is deliberately denying the status and relations with Vijay Singh. He further admitted that prior to alleged transaction with the accused, he never had given any loan to anybody except for some small amount. He further admitted that signatures over the cheque EX.CW1/1 is from different pen. He admitted that he has not shown or revealed the advancement of loan amount in his ITR. He further admitted that it is CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 5 of 16 correct that the limit for withdrawing the cash from the ATM since 08.11.2016 to April 2017 was ₹ 2000/- and Rs. 4000/- per day and the entire amount was withdrawn by him from the ATM. He further admitted that the accused approached him for taking alleged loan of ₹ 2.5 lakhs from him on 20.02.2017. He further deposed that he is not deposing falsely.
6. The statement of accused was thereafter recorded under Sec 313 CrPC on 16.07.2022 wherein the entire incriminating evidence was put to the accused and she reiterated his defence. She stated that she has never taken any loan amount from the complainant. She has never known complainant nor know him personally, nor there is any business transaction with the complainant. For the first time, she has seen the complainant in the Court itself. The cheque was handed over to one Vijay Singh. She did not know how come the cheque is in the possession of the complainant. She admitted that the cheque was dishonoured and further that she has never received any legal notice. As to the defence evidence, she revealed her intention not to lead so.
7. The accused however chose not to lead any evidence in her defence.
8. Final arguments advanced by Sh. Darshan Pratap Singh, Ld. Counsel for the complainant and by Sh. S.A. Khan, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 6 of 16
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That 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;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by her with a bank and hence the ingredient (i) is deemed to proved as not disputed.
11. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex.CW1/1 dated 25.05.2017 was returned dishonoured on 26.05.2017. During his cross-examination, no questions were put to the complainant nor any suggestions were given to him as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 7 of 16 in question having been presented during the period of its validity is deemed to be proved as not disputed.
12. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by her in her statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
13. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, he sent notice dated 08.06.2017 (Ex CW1/3) to the accused for return of the cheque amount vide speed post and courier on 10.06.2017 ie within 30 days of dishonour of the cheque. The complainant also relied upon receipts (Ex CW1/4 and Ex CW1/5) . The accused has however denied receipt of the notice of demand.
14. It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given.
15. In the present case, it is not the case of the accused that the address on which the notice was sent is not her address, rather she has given the same address in the Court when her statement under Section 281 r/w 313 CrPC was being recorded. Hence the notice was sent by the accused at her correct address. For reasons best known to her, CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 8 of 16 the accused has not led any evidence in rebuttal to disprove the report given by the postal official either.
16. Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that " 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 u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had 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 u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
17. Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused as also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of legal notice dated 08.06.2017 (Ex.CW-1/3) the present complaint cannot be rejected and the same is help to have been duly served upon the accused.
18. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 9 of 16 DEBT/LIABILITY
19. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. "(Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
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20. The NI Act also provides under Section 139 that 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. Thus, 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. 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. 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. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
21. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
22. Firstly, from the testimony of the complainant it is evident that he claims himself to be a businessman and have been income tax assessee since last 20 years. In the present case, the accused is not any near relative of the complainant but complainant only knows the accused through the son of the accused who used to play cricket. In these circumstances it is improbable that complainant would advance the sum of Rs. 2,50,000/- without the execution of any documentary evidence and also in such CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 11 of 16 circumstances, any prudent man would give such cash amount in front of anyone who could depose thereafter. Also there is a contradiction in the testimony of the complainant. Firstly, he submits that he knows the accused through the son of the accused as the son of the accused used to play cricket and he was a cricket umpire but in the latter part of the cross examination he admits that he knows Vijay Singh and he first met him at the house of the accused in the year 2016. The plausible defence of the accused that the cheque was handed over to Vijay Singh stands a plausible narrative.
23. Secondly, in paragraph 2 and 3 of the complaint, the complainant has revealed in what manner the loan was advance however the same has not been substantiated. Further the deposition of the complainant that he has borrowed Rs. 75,000/- from one Anoop Kumar Parasher and strangely, the complainant does not know the name of the father of Anoop Kumar Parasher nor his residential address cast doubts upon the version of the complainant that he have borrowed any such amount from Anoop Parasher.
24. Thirdly, further his deposition that he has withdrawn Rs. 1,75,000/- from ATM, is also have not been proved even though passbook has been placed on record. It is also interesting to note that such passbook which has been placed on record is photocopy Mark A, which does not reflect that such amount was withdrawn from the account of the complainant and further such a statement of bank account does not reveals that such bank account belongs to the complainant. Also it is interesting to CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 12 of 16 note that the complainant have deliberately omitted the duration in which the cheque was dishonoured which cast doubts upon the version of the complainant.
25. Fourthly, it is improbable that complainant could have withdrawn the amount of ₹ 175,000/- through ATM at the time when demonetization was prevailing and only limited amount of money could be withdrawn on each day. Even the passbook which have been relied upon by the complainant also does not reveal that such amount was withdrawn. Henceforth, the version of the complainant that ₹ 175,000/- was withdrawn from the ATM stands negated. Further despite given opportunity, he has not been able to place on record any documentary evidence to prove the same. The document that have been placed on record Mark A is adverse to him.
26. Fifthly, it is admitted by the complainant that no cash transaction can take place for the amount exceeding ₹ 20,000/- as for income tax law, however he had gathered courage to do so and further it is his own admission that the same has not been reflected in the ITR of the complainant also cast doubt upon the case of the complainant.
27. Sixthly, it is the averment of the complainant that he knows the accused for several years in paragraph 1 of the complaint, however it has been deposed by the complainant that he has to go through the house of the complainant to trace out the address, cast doubt about the fact that the accused and the complainant are acquainted to each other.
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28. Seventhly, it is also beyond prudence that the person who is relying upon the bank account and the date on which the loan was advanced, the balance amount was around Rs. 5,51,000/- then how come there is an occasion to borrow money of ₹ 75,000/- from his friend Anoop, and it is interesting that he do not know the name of the father of his friend Anoop or his residential address.
29. Eighthly, application under section 145(2) of NI Act as filed by accused substantiate her version of defence and also her acquaintance with Vijay Singh and in particular the various documents that have been placed on record by the accused further substantiate her defence. It is important to note that the Court cannot rely upon such document as a part of evidence, for the reason that same has been placed on record but have not been proved as per Evidence Act however, prima facie inference can be made by the Court. Further the admission on the part of the complainant that he knows Vijay Singh also further substantiate the defence of the accused.
30. Ninthly, to substantiate his case, the complainant could have examined his friend from whom he has borrowed ₹ 75,000/- i.e. Anoop, however he has failed to do so.
31. It is pertinent to mention here in that aforesaid observations and reasons are based upon an reliance is being placed upon Krishna Janardhan Bhat v. Dattatraya G. Hegde Cr. Appeal no. 518 of 2016 passed by Hon'ble Supreme Court of India, Jai Bhagwan Panwar v. Sangeeta Rani Crl. L.P. no. 14 of 2013 and Pushpa Devi v. Sushila Crl. L.P. no. 324 of 2018 passed by Hon'ble High Court of Delhi. CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 14 of 16
32. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability / consideration was improbable / doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
33. However, the complainant herein has miserably failed to do so.
34. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
35. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
36. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Smt. Kalpana Pandey W/o Sh. S.K. Pandey is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, she stands acquitted.
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37. Accused Kalpana Pandey W/o Sh. S.K. Pandey is directed to furnish bail bond and surety bond in the sum of Rs.10,000/- under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon her.
38. File be consigned to Record Room after due compliance.
Announced in the open court on 18.08.2022 (VAIBHAV CHAURASIA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 16 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi CIS NO. 9057/2017 Ram Shankar Gupta Vs. Kalpana Pandey Page 16 of 16