Delhi District Court
Judgment In The Case Of Manjula Chellur vs . R.V. Shashidaran on 26 November, 2012
IN THE COURT OF MS. SUGANDHA AGGARWAL
ADDL. RENT CONTROLLER: NORTHWEST : ROHINI :
DELHI
Unique Case ID No. 02404R0535252007
Police Station : Vikas Puri
JUDGMENT
(a) Complaint Case No. 538/09/2007
(b) Date of offence After fifteen days of service of notice dated 23.08.2007.
(c) Complainant Sh. Jitender Kumar S/o. Sh. Ram Kishan R/o. WZ52, Village Keshopur, Vikas Puri, Delhi18.
(d) Accused Ms.Benu Taneja W/o. Sh. Himanshu
Taneja R/o. 66/15D, First floor,
Manohar Nagar, New Delhi18.
(e) Offence Under Section 138 of Negotiable
Instruments Act, 1881
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 29.09.2007
(i) Date when 16.11.2012
judgment was
reserved
(j) Date of judgment 26.11.2012
1. This is a complaint case filed by the complainant alleging the offence under Section 138 of Negotiable Instruments Act, against the accused. It is averred in the complaint that the accused CC No. 538/2009/07 Page 1 of 19 were having friendly and cordial relations with the complainant. It is averred that the accused persons have borrowed a sum of Rs. 1,50,000/ from the complainant as a friendly loan and against the said loan the accused no. 2 issued two cheques bearing no. 148791 and 148790 dated 16.08.2007 for a sum of Rs.77,000/ and 18.08.2007 for a sum of Rs.73,000/ respectively both drawn on ICICI Bank Ltd., Lajpat Nagar, New Delhi. It is further averred that while issuing the cheques in question, accused persons assured and promised the complainant that the said cheques would be honoured by the bank as and when presented for encashment.
2. It is averred that on the assurance of the accused, the complainant presented the cheque in question bearing no. 148790 for a sum of Rs. 73,000/, in his bank i.e. Bank of India, Keshopur Branch, New Delhi18. However the said cheque was dishonoured with the remarks "Payment Stopped by the drawer" vide returning memo dated 23.08.2007. It is further averred that the complainant immediately intimated the accused persons regarding the dishnour CC No. 538/2009/07 Page 2 of 19 of cheque but the accused persons instead of making the payment, started abusing the complainant and refused to make payment of cheque in question and threatened the complainant that accused persons will file a false case before the police as well as other government authorities. The complainant has further averred that a legal notice dated 23.08.2007 was sent to the accused through his counsel but accused failed to make the payment of cheque in question despite service of notice. Therefore the complainant was constrained to file the present case.
3. After examination of the complainant, accused was summoned for the offence punishable under Section 138 Negotiable Instruments Act.
4. When accused appeared in the Court, complete set of documents were supplied to her. Notice under Section 251 Code of Criminal Procedure for offence under Section 138 Negotiable Instruments Act, was served upon the accused vide order dated 20.01.2010, to which accused pleaded not guilty and claimed trial. CC No. 538/2009/07 Page 3 of 19 Accused Himanshu Taneja was discharged.
5. Complainant examined himself as CW1. CW1 has filed his affidavit Ex.CW1/A in examination in chief wherein he has reiterated and reaffirmed the contents of the complaint on oath and relied upon the following documents:
(a) Cheque in question is Ex. CW1/1. (b) Cheque returning memos are Ex. CW1/2 and Ex.CW1/3. (c) Legal notice and postal receipts and UPC are Ex. CW1/4 to Ex.CW1/7. (d) Original returned AD cards are Ex.CW1/8 and Ex. CW1/9. (e) Police complaints are Ex.CW1/10 and Ex.CW1/11.
6. CW1 was crossexamined. During crossexamination, CW1 has deposed that he is a Zamindar. He has further deposed that there is no date of loan mentioned in his affidavit or the complaint. Further CW1 has deposed that his farm land have been acquired and he has rental income of Rs.30,000/ per month but CW1 has shown his inability to tell the names of tenants in his CC No. 538/2009/07 Page 4 of 19 crossexamination. During crossexamination, CW1 has admitted that he is acquainted with one girl Pooja and he has gone to Haridwar, Manali and Nainital with the husband of accused and his friend Pooja and Anu. CW1 was discharged after cross examination.
Thereafter, complainant's evidence was closed.
7. After closure of complainant's evidence statement of the accused under Section 313 Code of Criminal Procedure was recorded. Entire incriminating evidence was put to the accused. Accused denied the entire incriminating evidence and stated that she is innocent and has been falsely implicated in this case. Accused opted to lead defence evidence.
8. Accused examined herself as DW1. She tendered her evidence by way of affidavit which is Ex. DW1/A. DW1 has not relied upon any document. She was crossexamined and discharged.
9. Accused examined HC Laxmi Narayan as DW2 from P.S. CC No. 538/2009/07 Page 5 of 19 Rajouri Garden, New Delhi. He deposed that he had brought summoned record i.e. FIR No. 663, P.S. Rajouri Garden, dated 24.08.2007 registered under Section 384/34 IPC, which was registered on the complaint of ASI Pawan Kumar. He further deposed that FIR was registered against four accused persons. He further deposed that Jitender Kumar, complainant in the present case is also one of the accused in the said FIR. He was cross examined and discharged.
10. Accused examined Mandeep Singh, Branch Sales Manager from ICICI Bank, Lajpat Nagar, New Delhi has been examined as DW3. He deposed that he had brought the summoned record of account no. 022501503030. He deposed that cheque bearing no. 148790 and another cheque bearing no. 148791 were issued from abovesaid account. He further deposed that on the instructions of the customer, both the cheques were stopped on 31.01.2006. He was crossexamined and discharged.
Thereafter, DE was closed.
CC No. 538/2009/07 Page 6 of 19
11. Written arguments have been filed by both the parties which have been perused.
12. In the written arguments filed on behalf of complainant, counsel for complainant has reiterated the contents of the complaint. He has further argued that complainant examined himself as CW1 wherein he has proved all the necessary documents such as cheque, original return memo, legal notice etc. as per the provisions of law. It is further argued that accused has admitted in her statement under Section 313 Cr.PC that she has signed the cheque in question, therefore, presumption be drawn in favour of complainant under Section 139 of Negotiable Instruments Act. In this regard, counsel for complainant has relied upon the judgment in the case of Manjula Chellur Vs. R.V. Shashidaran 2006 (2) Criminal Court Cases 723. It is further argued that though the said presumption is rebuttable but mere explanations are not sufficient. Accused is required to adduce cogent evidence to rebut the presumption but in the present case accused has failed to rebut CC No. 538/2009/07 Page 7 of 19 the presumption. Ld. Counsel has pointed out towards certain contradictions of the accused in her testimony. It is further argued that as per testimony of DW3, it is clear that the payment of cheque in question was stopped on 31.1.2006 which shows that the accused despite being aware that the payment of cheque has been stopped, deliberately and malafidely handed over the cheque to the complainant. Further accused has not placed on record any documentary proof to substantiate her defence. Hence the complainant has proved beyond reasonable doubt that accused has taken the loan for which she had issued the cheque which was dishonored on presentation. Accused has failed to make payment of cheque amount and therefore she is liable to be convicted for offence under Section 138 of Negotiable Instruments Act.
13. Written arguments have also been filed on behalf of accused wherein it is stated that there is no legally enforceable liability upon the accused to pay the cheque amount. It is contended that if any one essential ingredient of Section 138 of CC No. 538/2009/07 Page 8 of 19 Negotiable Instruments Act is missing then the accused cannot be prosecuted for the same. In this regard, counsel for accused has relied upon the judgments in the cases of M.S.Narayana Menon @ Mani Vs. State of Kerala & Anr. 2006 JCC (NI) 198 and S.B.V. Satyanarayan Rao Vs. A. Venkateshwar Rao & Anr. I (1996) BC
464. It is further argued that the crossexamination of complainant will show that there are lot of contradictions in his cross examination. Complainant has failed to show the source of his income so as to be capable of giving such a huge loan to accused. Therefore, the testimony of CW1 cannot be considered. It is further argued that it has been admitted by CW1 that an FIR for blackmailing has been registered against him and the said FIR has been duly proved on record as Ex.DW2/1 by the testimony of DW2. Therefore, in these circumstances, accused shall be acquitted as cheques were not issued against a legally enforceable debt.
14. I have considered the rival contentions of both parties and have carefully scrutinized the record.
CC No. 538/2009/07 Page 9 of 19
15. In the present case, accused has been charged for offence under Section 138 of Negotiable Instruments Act, 1881. In order to prove the guilt of accused for offence under Section 138 of Negotiable Instruments Act, 1881, the complainant is required to prove the following ingredients beyond reasonable doubt : i. Accused had issued a cheque in favor of complainant. ii. The said cheque has been issued in discharge of a debt or liability and is for consideration.
iii.The said cheque has been dishonored on presentation. iv.Accused has failed to make payment of cheque amount within 15 days from the date of service of legal notice served to him by complainant.
16. As per the allegations alleged by the complainant, accused has borrowed a sum of Rs.1.5 Lakhs from the complainant and issued two cheques bearing no. 148791 and 148790 dated 16.08.2007 for a sum of Rs.77,000/ and 18.08.2007 for a sum of Rs.73,000/ respectively both drawn on ICICI Bank Ltd., Lajpat Nagar, New Delhi. In order to prove his case, complainant has examined himself as CW1 and has filed his affidavit Ex.CW1/A CC No. 538/2009/07 Page 10 of 19 wherein he has reiterated and reaffirmed the contents of complaint on oath. Complainant was crossexamined at length. Counsel for complainant has argued that the accused has admitted that cheques in question bear her signatures. Complainant has examined himself on oath and has proved that a friendly loan was taken by the accused and cheques were dishonored on presentation. Legal notice was served on the accused and accused failed to make payment, therefore, accused shall be convicted for offence under Section 138 of Negotiable Instruments Act.
17. However neither in the complaint nor in the affidavit filed in evidence, complainant has stated the date when the loan was taken, the place and the purpose for which the loan was taken. The only submission made by the complainant is that accused has borrowed a sum of Rs. 1.5 Lakhs from the complainant and two cheques i.e. cheques in question were issued by the accused.
18. During crossexamination, complainant has stated that he is a Zamindar but subsequently complainant in his cross CC No. 538/2009/07 Page 11 of 19 examination has stated that he is having rental income which is Rs.30,000/ per month. During crossexamination, complainant showed his inability to tell the names of tenants and the rate of rent which is being paid by the tenants. CW1 further stated in his cross examination that the rent is being collected and the tenants are being managed by his father who is 8082 years old. Further during crossexamination, complainant has stated that he only knows Pooja and is well acquainted with her but had shown his inability to tell her present whereabouts. Subsequently, during cross examination CW1 admitted that he has gone to Haridwar with the husband of the accused alongwith Pooja and Anu. During cross examination, complainant has admitted that an FIR of blackmailing has been registered against him alongwith other accused persons.
19. The defence taken by the accused is that the complainant is running a racket of clicking photographs of people in compromising situation and thereafter blackmailing them with said photographs. It is further stated by the accused that complainant CC No. 538/2009/07 Page 12 of 19 was blackmailing the husband of accused as he had taken the said photographs of husband of accused. It was husband of accused who had handed over the cheques in question to complainant. In order to prove her stand, accused has examined herself as DW1 and filed her affidavit Ex.DW1/A. She has reiterated her defence on oath in her affidavit in examinationinchief. During crossexamination, DW1 maintained her stand. Further DW1 has stated that complaints were made in writing to ACP and DCP stating that complainant herein is harassing and blackmailing her and her husband. DW1 has also stated that she got the payment of cheques in question stopped in the year 2006 after she left the earlier job.
20. It is a settled law that in a criminal case, in order to prove the guilt of accused, complainant is to prove the same beyond reasonable doubt. In a case under Section 138 of Negotiable Instruments Act, if it is proved that accused has issued the cheque in favour of complainant then a presumption is drawn under Section 139 of Negotiable Instruments Act that the cheque was CC No. 538/2009/07 Page 13 of 19 issued for a legally enforceable debt. However, the said presumption is rebuttable and the onus on the accused to rebut the said presumption is of preponderance of probabilities. Reference in this regard can be made to the case of M.S.Narayana Menon @ Mani Vs. State of Kerala & Anr. 2006 JCC (NI) 198, wherein it has been held by Hon'ble Supreme Court as under: "The standard of proof to be met by the accused in his defence is mere preponderance of probabilities and such inference can be drawn not only from the material on record and also by reference to the circumstances relied upon by the complainant.
The accused is only required to discharge the initial onus of proof and it is not necessary for him to disprove the prosecution case.
To discharge the initial burden, the accused need not enter the witness box or examine other witness in support of his defence. The onus can be discharged from the material brought on record by the complainant himself."
21. In the present case, firstly the onus was on the complainant to prove beyond reasonable doubt that accused has taken a friendly loan from the complainant and issued the cheques in question for repayment of said loan. In order to prove its averments, complainant has examined himself as CW1. Complainant has not given the details of the loan such as the date CC No. 538/2009/07 Page 14 of 19 on which the loan was given, the purpose for which loan was given etc. However, as discussed above, there are lot of contradictions in the testimony of CW1 and from the crossexamination of CW1 it appears that CW1 is a shaky witness and his testimony is not creditworthy. CW1 has taken different stands regarding source of income so it cannot be established as to what is the source of income of having Rs.1.5 Lakhs to give loan to accused. There is no other witness and neither any documents proved on record by the complainant in support of his averments.
22. On the other hand, accused has stated that complainant was blackmailing the husband of accused. CW1 in his cross examination has admitted that husband of accused has gone out with CW1 and two other girls. CW1 has also admitted in his cross examination that an FIR for blackmailing is pending against CW1. Accused has examined herself as DW1 wherein she has reiterated the stand taken by her on oath. DW1 has withstand the test of crossexamination and has maintained her stand during cross CC No. 538/2009/07 Page 15 of 19 examination. In view of the law laid down in M.S.Narayana Menon's case (supra), the onus to rebut the presumption is of preponderance of probabilities and for the same reason the entire material on record is to be seen. In the present case after considering the testimony of complainant and DW1, I am of the considered opinion that accused has successfully rebutted the presumption under Section 139 of Negotiable Instruments Act.
23. Furthermore as per the stand of accused, she has stopped the payment for the cheque in question in the year 2006 when she left the earlier job. CW1 has stated that the present loan transaction is of the year 2007. But the averment of accused has been corroborated by the testimony of DW3 Mandeep Singh who is Branch Sales Manager of ICICI Bank. DW3 has deposed that as per their record, they had instructions from the customer on 31.6.2006 to stop payment of cheque in question. It is an admitted case of the complainant that cheques in question were returned with endorsement "stop payment". Therefore from the testimony of CC No. 538/2009/07 Page 16 of 19 DW3 also, the submission of accused that cheque was stopped by her way back in 2006 when she had left the earlier job also seems to be tenable. Hence it cannot be said that accused has deliberately stopped the payment of cheques in question after handing over the same to complainant in the year 2007 so as to attract liability under Section 138 of Negotiable Instruments Act.
24. Counsel for complainant has referred to the judgment in the case of Manjula Chellur Vs. R.V. Shashidaran 2006 (2) Criminal Court Cases 723, wherein it has been held by the Hon'ble High Court that when the issuance of cheque and signatures on the cheque is admitted, presumption is drawn that cheque was issued towards legally enforceable debt. Firstly, in the present case accused has only admitted her signatures on the cheque and she has not admitted the fact that she has issued the cheques in favour of complainant. It has been held in G. Gopan Vs. Tonny Varghese 2001 (1) DCR 314 as under : "When the execution of the cheque is denied by the accused, it is for the complainant to establish the same. In the CC No. 538/2009/07 Page 17 of 19 absence of any positive evidence regarding the execution of the cheque by the accused, it is to be hold that the accused had issued only blank cheque and the same was not executed by him. Simply because the cheque contained the signature of accused, it cannot be said that the cheque was drawn by the accused as contemplated under Section 138 of the N.I. Act."
25. Hence in view of the above, in the present case it cannot be said that accused has admitted that she has issued the cheques in favour of the complainant. Further, as discussed above, accused has rebutted the presumption and has proved that cheques were not issued for repayment of loan transaction. On the other hand, complainant has failed to produce any cogent and reliable evidence to prove his averments.
26. Ld. counsel for complainant has stated that there are contradictions in the testimony of DW1. In examinationinchief, DW1 has stated that her husband had taken her cheques without her knowledge and in crossexamination DW1 has stated that cheques were stolen. During crossexamination, DW1 has stated that cheques were stolen by her husband and furthermore there are no material contradictions in the testimony so as to render her CC No. 538/2009/07 Page 18 of 19 testimony uncreditworthy. It is settled law that minor contradictions shall not shake the testimony of the witness.
In the case of Bhoginbhai Hirjibhai v. State of Gujarat 1983 CRI. L. J. 1096, it was held that: "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important 'probabilitiesfactor' echoes in favour of the version narrated by the witnesses."
27. In view of above discussion, I am of the considered opinion that complainant has failed to prove its case against the accused beyond reasonable doubt. Accordingly the accused is acquitted for commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881. Personal bond and surety bonds are extended for the purposes of Section 437A Cr.PC. File be consigned to Record Room.
(Sugandha Aggarwal) Addl. Rent Controller (N/W) Rohini Courts : Delhi Announced in open Court on November 26, 2012.
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