Delhi District Court
Smt. Girja Mishra vs . Smt. Ranju Cc No. 56298/16 on 1 December, 2021
IN THE COURT OF SH. PANKAJ ARORA : ACMM
(EAST) : KARKARDOOMA COURTS, DELHI
CC No. 56298/2016
CNR No. DLET020003832016
Girja Mishra .......................................................Complainant
Versus
Smt. Ranju ............................................................ Accused
Offence complained of u/sec 138 of Negotiable Instruments Act
Offence complained of or proved : U/s 138 N.I. Act
Plea of the Accused : Accused pleaded
not guilty
Date of commission of offence : 05.11.1517.11.15
Date of institution of the Case : 22.01.2016
Date on which arguments heard : 01.12.2021
Date of decision : 01.12.2021
Final Order : Acquitted u/s 138
N.I. Act.
JUDGMENT
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE
1. The complainant's case is that accused Smt. Ranju had Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 issued two cheques (1) cheque bearing no. 248386 dated 17.11.2015 for sum of Rs. 1,11,000/ drawn on ICICI Bank, Preet Vihar Branch, New Delhi, and (2) cheque bearing no. 067538 dated 05.11.2015 for sum of Rs. 10,000/ drawn on Central Bank of India, AwaneGhalib Institute, Mata Sundari College Road, New Delhi, in favour of complainant in discharge of legal debt/liability towards the complainant. On presentation by the complainant with its banker, the said cheques got dishonored with remarks "Funds Insufficient/Payment Stopped by Drawer" as reflected vide returning memos dated 05.11.2015/10.11.2015/18.11.2015. Thereafter, legal demand notice dated 28.11.2015 was sent to the accused calling accused to pay the cheque amount within stipulated period of 15 days as per NI Act. The said legal notice was duly served upon the accused, but accused did not pay the cheque amount to the complainant.
2. The offence U/s 138 of N.I. Act consists of following ingredients: a. The cheque was drawn by drawer on an account maintained by them with the banker for payment of any Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 amount of money out of that account.
b. The said payment was made for discharge of any debt for other liability in whole or in part.
c. The said cheque was returned unpaid by the bank. d. The cheque was presented to the bank within a period of 6 months from the date on which it was drawn or within the period of its validity whichever is earlier. e. The payee or the Holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
f. The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice.
g. The payee or the Holder in due course of the cheque shall make a complaint in writing within one month of the date on which the Cause of Action arises i.e. 15 days Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 from the receipt of the notice by the drawer.
3. The complainant got herself examined as CW1 in her per summoning evidence and she relied upon evidence by way of affidavit which is Ex. CW1/1, dishonored cheque no. 248386 in original as Ex. CW1/A, bank returning memo dated 18.11.2015 as Ex. CW1/B, dishonored another cheque no. 067538 in original as Ex. CW1/C, bank returning memos dated 05.11.2015 and 10.11.2015 as Ex. CW1/D and Ex. CW1/E, copy of receipt of friendly loan as Ex.CW1/F. Complainant served a legal notice dated 28.11.2015 upon the accused through Registered post and same was duly served upon the accused. Copy of the legal notice is Ex. CW1/G, receipt of registered AD as Ex. CW1/H and tracking record of post office is Ex. CW1/I. Accused failed to make the payment of the cheque amount within the requisite period to the complainant and therefore, complainant filed complaint before the court on 22.01.2016.
4. On 17.03.2016, after being satisfied that the complainant has a prima facie case against the accused, the court summoned accused for offence U/s 138 of the N.I. Act.
Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16
5. The notice under Section 251 Cr. PC was served upon the accused. She pleaded not guilty and claimed trial. As per the judgment of the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State & Anr, Crl. M.C. no. 1996/2010 & Crl. M.A. no. 7672/2010, decided on 12.07.2010, her plea of defence was recorded.
6. In order to substantiate its case, the complainant examined herself and she was also crossexamined by the Ld. Defence Counsel. No other witness was got examined by the complainant.
During crossexamination, complainant stated that she had given Rs. 1,21,000/ to the accused and she had two cheques of the accused. She admitted that document Ex. CW1/DX1 was executed between them at the time of giving loan and taking the gold articles from the accused. She stated that she did not know whether the accused had taken a loan of Rs. 2 lac from her when the accused had pledged the gold items mentioned in Ex. CW1/DX1. She volunteered that her husband must be aware of the same. She had no knowledge about the deal mentioned in document Ex. CW1/DX1. Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 She denied that accused had taken a loan of Rs. 2 lacs from her as mentioned Ex. CW1/DX1. She further denied that accused had repaid Rs. 1,75,000/ out of total loan amount of Rs. 2 lacs and therefore, she had returned certain jewellery to her as mentioned at point B. She did not know whether the personal loan was shown in her ITR or not. Her husband might be aware of the same. She had not given loan to any other person except the accused. She had not filed any other complaint u/s 138 NI Act against any of the person. She admitted that she had filed a complaint u/s 138 NI Act against Baby Mishra, which is pending in the court of Ld. M.M. Sh. Rakesh Rampuri. She did not have any license to give loan to other persons.
7. Thereafter, all the circumstances appearing in the evidence against the accused were put to her in order to enable her to offer her explanation. In his statement U/s 313 Cr.P.C. recorded on 13.01.2020, accused has stated that she had taken a loan of Rs. 2 lacs from the husband of the complainant and she even did not know the complainant by name. After sometime, she had returned a sum of Rs. 1,75,000/ to the husband of the complainant at her house in the presence of her daughter Preeti. Husband of the complainant had Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 also called a peson, who was known as Langda in the locality. In his presence, she had returned the money. That person asked her as to when she would return the money within 3 months. Then, husband of the complainant and said Langda had demanded 5 cheques from her. She was illiterate. She had given 5 cheques to the husband of the complainant after putting her signatures. They were blank cheques having her signatures only. These two cheques were out of those 5 cheuqes. She had not repaid the balance amount of Rs. 25,000/. However, she had not taken any loan from the complainant. Accused did not lead any evidence in his defence.
8. Arguments have been advanced by both the parties at length. It has been argued by Ld. counsel for the complainant that from evidence, he has proved that the cheques in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment. It is argued that during cross examination of witnesses, no material contradictions have come out and the complainant has been able to prove her case to the hilt. It has been argued that accused has failed to rebut the statutory presumption Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16
9. Per contra, for knocking down the edifice of complainant case, it has been argued vehemently by Ld. counsel for defence that no case is made out against accused as she is innocent and complainant has misused the cheque in question. It has further been argued that accused has been able to successfully rebut the presumption raised against her. She has relief upon the following judgments in support of his arguments :
a) MS Narayana Menon @ Mani vs. State of Kerala, in Crl. Appeal no. 1012 of 1999, decided on 04.07.2006
b) Krishna Janardhan Bhai vs. Dattatraya G. Hegde in Crl. Appeal no. 518/2006, decided on 11.01.2008
c) Saj Properties Pvt. Ltd. vs. Virender Dagar in Crl. L.P. no. 382 of 2014 decided on 09.03.2015
d) A.S. Bafakkithangal vs. Purushothaman & Anr. In Crl. Appeal no. 194/2002 decided on 18.03.2009
e) Pushpa Devi (Smt.) vs. Sushila (Smt.) in Crl. L.P no. 324/2018 decided on 14.05.2018
f) Dilawarsinh Modubha Zala vs. State of Gujarat & Ors. In Crl. Appeal no. 2086/2010 decided on 12.01.2012
g) Pine Product Industries vs. R.P. Gupta & Sons & Anr., in Crl. Rev. P. 74243/2006 decided on 06.12.2006
10. Before entering into factual matrix of the present case, I deem it fit to discuss certain statutory provisions of Negotiable Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 Instruments Act. Section 118 (A) of N I Act provides for presumptions regarding consideration for a Negotiable Instrument. It reads as under :
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
11. Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as under :
"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, or any debt or other liability".
12. Apex court in Rangappa vs Mohan AIR 2010 SC 1898 while overruling the judgment titled Krishna Janardhan Bhatt vs Dattatraya G Hegde AIR 2008 SC 1325 observed in para 14 that :
"the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in Krishna Janardhan Bhatt (supra) cannot be correct............This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
13. Therefore, in view of the statutory provisions and Apex Court's judgments, there is a presumption in favor of holder of the Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 cheque that he has received the same for discharge in whole or in part of any legally enforceable debt or other liability. It is a well settled principle of law that the presumption available U/s 139 N I Act can be rebutted by the accused by adducing evidence. Therefore, the burden of proof is on the accused to rebut this statutory presumption. The accused can prove the non existence of consideration by raising a probable defence and if he proves the same, then only the onus would shift upon complainant, who has to prove it as a matter of fact and his failure to prove would disentitle him to grant the relief.
14. It is observed that during the course of crossexamination, the accused has produced one document i.e. Ex. CW1/DX1 bearing the signatures of the complainant and the complainant has also admitted the execution of the said document and identified her signatures thereupon. However, she had expressed her ignorance about the contents mentioned therein. As per the said document, it appears that the complainant had retained gold items as a pledge in lieu of loan of Rs. 2,00,000/ (Rs. Two lacs only) advanced to the accused.
15. At the time of framing of charge, the accused has stated in his defence that she had taken a loan of Rs. 2 lakh from the complainant in February 2015. Against the said loan, she had given the security of his daughter in law's jewellery. The jewellery was handed over to the complainant in her bank i.e. ICICI Bank after taking out the jewellery from the bank locker. The cash amount of Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 Rs. 2 lakhs was also handed over to her by the complainant in the said bank. She kept on paying Rs. 5,000/ per month as interest. However, she could not pay the said amount for a few month because of accident of her son. Later on, when her daughterinlaw requires the said jewellery, she manged to collect Rs. 1,75,000/ and gave the same to the complainant and asked him to return the jewellery. He did not returned his complete jewellery and has forcibly taken five cheques from her, two in her house, when he came with Ashish Shukla bank official and balance three at the time of payment of Rs. 1,75,000/. The complainant had misused her cheques and filed the present false case against her. She had no liability towards.
16. Therefore, this court is of the opinion that accused has succeeded in rebutting the presumption u/s 139 of the NI Act and she has raised probable defence, which creates doubt about the existence of legally enforceable debt or liability towards the complainant. Apart from the cheques in question, the complainant has not come up with any other evidence to show the existence of legally enforceable debt at the time of dishonour of the cheques in question.
17. In a case titled as Dilawarsinh Modubha Zala vs. State of Gujarat & Ors. in Crl. Appeal no. 2086/2010 decided on 12.01.2012, Hon'ble High Court of Gujarat has held as under : "13. It is settled proposition that when an accused has to rebut the presumption under Section 139 of the Act, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 accused is able to raise a probable defence which creates doubts about the existence of a legally recoverable 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. In the present case the accused was able to raise probable defence."
18. In another case titled as "Pine Product Industries vs. R.P. Gupta & Sons & Anr., in Crl. Rev. P. 74243/2006 decided on 06.12.2006, the Hon'ble High Court of Delhi as held that : "....... I find that there is no difficulty with the proposition that Section 139 of the Negotiable Instruments Act, 1881 raises a presumption that the holder of the cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability. There is also no dispute that this presumption is a rebuttal presumption. The presumption has to be rebutted in the course of the trial and once rebutted the onus would shift on the complainant to establish and prove beyond reasonable doubt that the cheque was, in fact, issued for the discharge, in whole or in part, of any debt or other liability. Once this presumption is rebutted then the case has to be considered from the stand point of the explanation contained in Section 138 which says that for the purposes of that Section, "debt or other liability" means a legally enforceable debt of other liability. So, once the presumption is rebutted, the onus shifts on to the complainant to not only establish that the cheque was issued for the discharge of a debt of other liability but that such debt or liability was legally enforceable.
19. It is further noted that there is contradiction in the Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16 testimony of CW1 as she had stated at one point that she had not filed any other complaint u/s 138 NI Act against any person. However, later on, she had admitted the suggestion by stating that she had filed a complaint u/s 138 NI Act against Baby Mishra as well. Thus, the testimony of complainant/CW1 fails to inspire confidence of this court, particularly in view of the fact that she had failed to come up with any evidence to show the liability of accused, if any, existed at the time of dishonour of the cheques in question.
20. It is well settled that it is the duty of the complainant to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the complainant becomes doubtful and the benefit of doubt certainly goes in favor of the accused. The complainant has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused namely Smt. Ranju is hereby acquitted for the commission of offence punishable U/s 138 NI Act.
Digitally signed by PANKAJ Announced in the open Court, PANKAJ ARORA ARORA Date: 2021.12.01 On 01.12.2021 16:57:44 +0530 (Pankaj Arora) ACMM (East)/KKD/Delhi 01.12.2021 Smt. Girja Mishra vs. Smt. Ranju CC No. 56298/16