Delhi District Court
Jai Singh vs Amita on 7 November, 2023
IN THE COURT OF MS. AAKANKSHA, METROPOLITAN
MAGISTRATE, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No. 20138/17
CNR No. DLSW02- 028027-2017
Jai Singh .........Complainant
Through: Mr. S.S. Saini, Advocate
Versus
Amita ............Accused
Through: Mr. Sanjeev Beniwal, Advocate
(1) Name of the complainant Jai Singh
S/o Late Sh. Katar Singh,
R/o H.No.119, Near Sector
16-B, Dwarka, Village and
Post office Kakrola, New
Delhi.
(2) Name of the accused Amita
W/o Late Sh. Parveen Kalkal,
D/o Subedar Major Om
Parkash,
R/o H.No. 245, Gali no.3,
Ward No.21, Near Brahm
Kumari Ashram, Dhikoda
Road, Charkhi Dadri,
Haryana.
(3) Offence complained of or Section 138 Negotiable
proved Instruments Act, 1881
(4) Plea of accused persons Pleaded not guilty
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AAKANKSHA
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(5) Date of institution of case 17.10.2017
(6) Date of conclusion of 03.11.2023
arguments
(7) Date of Final Order 07.11.2023
(8) Final Order ACQUITTAL
JUDGMENT
1. The complainant Jai Singh has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Amita on 16.10.2017.
2. The factual matrix as can be culled out from the complaint is owing to friendly relations accused borrowed friendly loan of Rs.7,00,000/- from complainant to meet her financial needs on 15.05.2012 for a period of two years, the accused again borrowed financial assistance of Rs.3,00,000/- from complainant on 26.09.2013 for a period of six months, after the expiry of promised period the accused issued the cheque in question bearing no.125012 dated 28.08.2017 for a sum of Rs.10,00,000/- drawn on ICICI Bank, Gurgaon Sector 15, Haryana with assurance of its encashment upon presentation. However, to the complainant's dismay the said cheque was returned unpaid with remarks "Funds Insufficient" vide return memo dated 30.08.2017. Complainant then contacted accused regarding bouncing of cheque in question to which accused paid no heed. The complainant then issued a legal notice dated 07.09.2017 calling upon the accused to pay the cheque amount within 15 days Ct. Case No.20138/17 Digitally signed Jai Singh vs Amita by AAKANKSHA Page 2 of 26 AAKANKSHA Date: 2023.11.07 15:39:01 +0530 from the receipt thereof, the same was duly served upon the accused but the accused failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') seeking redress against the dishonor of the cheque in question.
3. With a view to establish a prima facie case in order to enable the court to summon the accused, complainant led pre- summoning evidence by way of affidavit Ex.CW-1/6. The complainant relied upon following documentary evidence:
(a) Copy of statement of account of complainant, which is Mark A.
(b) Original cheque bearing no. 125012 dated 28.08.2017 for sum of Rs.10,00,000/- drawn on ICICI Bank, which is Ex.CW-1/2.
(c) Cheque return memo, which is Ex.CW1/3.
(d) Office copy of legal notice dated 07.09.2017, which is Ex. CW1/4.
(e) Postal receipt, which is Ex. CW1/5.
Complainant closed his pre-summoning evidence on 08.01.2018.
4. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 08.01.2018. Accused entered her first appearance on 17.09.2018.
5. Notice u/s 251 Cr.P.C. was framed against accused on 21.12.2018 stating out to her the substance of accusation, to which she pleaded not guilty and claimed trial. Her defence was recorded at the Ct. Case No.20138/17 Digitally signed Jai Singh vs Amita by AAKANKSHA Page 3 of 26 AAKANKSHA Date: 2023.11.07 15:39:05 +0530 stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that she did not issue the cheque in question, it does not bear her signature, her husband was managing her account, there was dealing between her husband and complainant, she did not receive any legal notice and does not have any knowledge of the dealing between her husband and complainant.
6. Accused was granted right to cross-examine the complainant on an application filed u/s 145(2) NI Act vide order dated 01.05.2019. The complainant was examined as CW-1 thereby adopting his pre-summoning evidence as post-summoning evidence and was cross-examined and discharged. Vide separate statement of complainant, complainant evidence was closed on 03.06.2019.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 08.07.2019 wherein all the incriminating evidence was put to the accused and she was granted an opportunity to explain the circumstances appearing against her at trial. While explaining the circumstances appearing in evidence against her, accused stated without oath that she does not know the complainant, she did not take any amount from complainant, she did not issue the cheque in question, she did not sign the cheque in question though the signatures on the cheque are similar to her signature, she did not fill the contents therein, she did not receive legal notice but it bears her correct address, she was proprietor of M/s. SBS Builders but her husband was looking after the said business, her husband committed suicide on 26.03.2016, she did not have any transaction with Ct. Case No.20138/17 Digitally signed by Jai Singh vs Amita AAKANKSHA Page 4 of 26 AAKANKSHA Date: 2023.11.07 15:39:10 +0530 complainant and does not have any liability. Accused preferred not to lead evidence in her defence.
8. At the stage of final arguments, complainant preferred an application u/s 311 Cr.PC on 09.09.2019 to summon bank witnesses. The said application was allowed on 09.09.2019 itself. In additional complainant evidence, complainant examined Sh. Satish Kumar as CW2, who was duly cross examined and discharged. Complainant also examined Sh. Prithvi Sethi as CW3, who was duly cross examined and discharged. Again an application u/s 311 Cr.PC was moved on behalf of accused to recall complainant for cross examination which was allowed vide order dated 14.02.2020 and the complainant/CW1 was again cross examined and discharged on 14.02.2020 itself.
9. Additional statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 29.04.2022 wherein all the additional incriminating evidence was put to the accused and she was granted an opportunity to explain the circumstances appearing against her at trial. While explaining the circumstances appearing in evidence against her, accused stated without oath that she does not have knowledge about the documents Ex.CW2/1, Ex.CW3/1, Ex.CW3/2 and Ex.CW3/3 as her deceased husband used to manage the entire business and the bank account, the business was managed by her husband and she has no knowledge about any transaction with the complainant, her husband never disclosed any debt with the complainant, complainant had misused the instrument by forging the same. Accused preferred to lead evidence in her defence.
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10. At the stage of defence evidence, accused examined herself as DW1 and relied upon death certificate of her husband (Ex.DW1/A), FIR No.126/2016 PS Rajender Park, Gurgaon(Ex.DW1/B colly) and summons of a civil case (Ex.DW1/C). She was duly cross examined and discharged. Vide her separate statement, defence evidence stood closed on 18.10.2022.
11. At the stage of final arguments, Ld. counsel for complainant filed written submissions. It has been contended on behalf of complainant that accused took two defences i.e. no loan was given and the cheque was given to complainant by Rishi Prakash and misused by complainant, that friendly relations between the parties is not disputed even in cross-examination of complainant, accused led defence evidence but did not depose in her examination in chief that she did not sign the cheque in question nor did she distinctively answer as to how the cheque came into possession of complainant, reply of accused qua receiving of legal notice and the address mentioned on the same is not coherent, accused willingly tried to avoid answering truly to the questions put to her in her cross- examination, accused could not definitely answer as to who signed the cheque in question and prayed to convict the accused on the basis of presumption of law. Ld. counsel for complainant relied upon the following cases to support his submissions: Darbar Exports & ors. v. Bank of India & ors. (2003)03 DEL CK 0021, Santosh Mittal v. Sudha Dayal 2014 VIII AD (DELHI) 268 and GL Sharma v. Hemant Kishor 2015 II AD (DELHI) 340.
12. Per contra, Ld. counsel for accused also filed written submissions. It has been contended on behalf of accused that when Ct. Case No.20138/17 Jai Singh vs Amita Digitally signed by AAKANKSHA Page 6 of 26 AAKANKSHA Date: 2023.11.07 15:39:21 +0530 final arguments were heard by Ld. Predecessor and Ld. counsel for accused raised objection of limitation then complainant came up with an entirely different story that a cheque of Rs. 500/- was honored in account of complainant by accused and thus complainant moved an application u/s 311 Cr.P.C. for re-examination of witness, that accused is a widow housewife whose late husband was in a business of building material supply and out of love and affection he made accused proprietor of such business in 2013, but her husband committed suicide on 23.03.2016, after his demise the business was closed as there was no one to run the business, it can be seen from Ex. CW-3/3 which shows that no cheque book was issued after demise of husband of accused, complainant is about 75 years old and accused is only 35 years old and thus there can be no friendly relations between them, there is no written agreement of loan as alleged, complainant deposed that he comes to court with one Rishi Prakash, Rishi Prakash is the instrument of filing the present false case as accused never met the complainant in her life but Rishi Prakash had business relations with husband of accused and he might be instrumental in providing cheque in question to the complainant, further complainant deposed that a cheque of Rs. 500/- was given by accused in presence of Rishi Prakash but the said person was not examined as witness by complainant, even otherwise as per version of complainant he has received Rs. 500/- as part repayment of the alleged loan but still presented cheque for a total alleged loan amount of Rs. 10 lacs although the alleged liability of accused would be only of Rs. 9,99,500/-, complainant also deposed that cheque of Rs. 500/- was given by accused for verification of her account, that usually verification of account is done by lender at the time of extending loan and if the story of verification of account is true then the case of complainant that loan was extended in 2012 and 2013 becomes false ad concocted, also complainant deposed that after accused left his Ct. Case No.20138/17 Jai Singh vs Amita Digitally signed by Page 7 of 26 AAKANKSHA AAKANKSHA Date:
2023.11.07 15:39:26 +0530 neighbourhood complainant met her in court but on other hand complainant deposed that after giving of cheque of Rs. 500/- in 2015 accused met him in court, which means that complainant is deposing at his convenience and narrating a false story, when accused left the neighbourhood of complainant in 2013 it is not possible that cheque of Rs. 500/- would be delivered to complainant in 2015 since complainant deposed that accused has not met him after accused left his neighbourhood. He further raised an issue that if a cheque bearing number 125013 was given by accused to complainant in the year 2015 then how can accused give the cheque in issue bearing number 125012 to complainant in the year 2017, that since custody of cheque is not proved by version of complainant as such presumption u/s 139 NI Act stands rebutted and prayed to acquit the accused. Ld. counsel for accused relied upon the following cases to support his submissions: M/s Alliance Infrastructure v. Vinay Mittal dated 18.01.2010, Krishna Janardhan Bhat v. Dattaraya G Hegde 2008 LawSuit(SC)55 and Starkey Laboratories India Pvt. Ltd. v. Sanjay Gujral dated 24.09.2019.
13. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
14. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
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(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that the 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;
(iii) that the cheque is 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 that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) that 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) that the drawer of such cheque fails 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;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
15. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of Ct. Case No.20138/17 Digitally signed Jai Singh vs Amita by Page 9 of 26 AAKANKSHA AAKANKSHA Date:
2023.11.07 15:39:36 +0530 law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that Ct. Case No.20138/17 Jai Singh vs Amita Digitally signed Page 10 of 26 by AAKANKSHA AAKANKSHA Date:
2023.11.07 15:39:40 +0530 negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of cross-examination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence. It is, thus, clear that in cases of Section 138 NI Act, upon proof of foundational facts, law presumes in favour of drawee that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut the same is upon the accused. The burden does not have to be conclusively Digitally signed Ct. Case No.20138/17 by Jai Singh vs Amita AAKANKSHA AAKANKSHA Date:
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16. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
16.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheque in question on his account maintained with a bank for discharge of any debt or other liability. In the instant case, accused has denied her signature on the cheque in question in her statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. However, she has admitted the fact that the signature on the cheque in issue are similar to her signature but she did not sign the same. In her evidence, she deposed that her husband used to maintain her bank accounts and the business of proprietorship concern which was under
her name and that she never objected to her husband signing her cheques on her behalf. She further deposed that the cheque in issue might have been signed by her husband. Thus, although accused has denied her signature on the cheque in issue, she has admitted that she had given authority to her husband to sign the cheques of CBS Builders on her behalf. The cheque in issue has also not been returned dishonored for mismatch of signature. It is well settled law that mere denial of signature as no value under law and the onus was upon Ct. Case No.20138/17 Digitally signed Jai Singh vs Amita by AAKANKSHA Page 12 of 26 AAKANKSHA Date: 2023.11.07 15:39:52 +0530 accused to prove that the signature on the cheque in issue was not hers. However, accused did not get the opinion of any handwriting expert to prove the said point, the cheque in issue was not returned dishonored for mismatch of signature. Accused also did not examine her banker to prove her admitted signatures on the record of the bank. Accused has herself admitted the fact that the signatures on the cheque in issue were similar to hers and that she had given authority to her husband to sign the cheques on her behalf. Thus, accused has failed to prove that the cheque in issue does not bear her signature. Further, the cheque in question has been drawn on the account maintained by accused with ICICI Bank. The said fact has not been denied by accused at any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa:
(2019) 5 SCC 418, by observing that:
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.Ct. Case No.20138/17 Digitally signed
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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.
(v) It is not necessary for the accused to come in the witness box to support his defence."
16.2. In the instant case, it having been proved that the signature on the cheque in issue belonged to accused and the said cheque was also drawn on her bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheque in question was issued by her in discharge of, whole or part of, legally enforceable debt or liability.
16.3. Now the burden shifts upon accused to rebut the above presumption by raising a probable defence, by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on Digitally signed Ct. Case No.20138/17 by AAKANKSHA Jai Singh vs Amita AAKANKSHA Date:
2023.11.07 Page 14 of 26 15:40:00 +0530 the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).
16.4. To prove her defence, accused cross examined CW-
1/complainant, who deposed, in brief, that he knows Rishi Prakash who is present in the court and he appears on each and every date with Rishi Prakash, he was a Zamindar when he gave loan to the accused, he received an award of Rs.10.5 Lakhs in 2012 through a voucher from govt. against acquisition proceedings carried out against his agricultural land of which he was the sole owner, he gave loan to the accused out of the above amount, he withdrew the loan amount from his bank through cheque, he knows accused for last 4-5 years, he visited the house of accused, Praveen is the name of husband of accused, accused was residing in his vicinity but left 2-3 years ago, accused shifted to Gurgaon as told by someone, he never went to the house of accused in Gurgaon, he did not meet the accused after she left from his neighbourhood, he met the accused in the court after she left from his neighbourhood, the cheque in question was not given by Rishi Prakash and he did not misuse the same, he is not deposing at the instance of Rishi Prakash. He further deposed that the cheque of Rs.500/- bearing no.125013 was given by accused in 2015 in his village Kakrola in presence of Rishi Prakash, the said cheque was given by accused for verifying her account, after giving of the said cheque accused met him in the court in respect of the present case. Upon court question that whether the payment of Rs.500/- was towards the principal amount of Rs.10,00,000/-, the witness answered in affirmative.
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16.5 Complainant examined bank witness Mr. Satish Kumar
as CW-2 who relied upon statement of account of complainant w.e.f. 31.03.2015 till 01.05.2017 (Ex.CW2/1) and deposed that the complainant received a sum of Rs.500/- vide cheque no.125013 on 07.10.2015.
16.6 Complainant further examined bank witness Sh. Prithvi Sethi as CW-3 who relied upon the bank account statement of accused w.e.f. 01.10.2015 till 31.12.2015 (Ex.CW3/1) and deposed that cheque no.125013 dated 06.10.2015 was encashed for Rs.500/- in the account of complainant. The witness also relied upon his authority letter (Ex.CW3/2) and relevant information regarding date of opening of account and issuance of cheque book (Ex.CW3/3).
16.7 To prove her defence, accused also examined herself as DW1 and deposed, in brief, that her husband started proprietorship firm M/s. SBS Builders in December, 2013 and made her the proprietor, her husband committed suicide on 26.03.2016 as he had taken some loan from some goons and even after repaying the entire loan, the said persons were threatening to kill him and his family members, her husband used to run the above business and had possession of cheque books of the proprietorship firm, the signature of her husband were similar to her signature which were on the said cheques and she never objected, the cheque in question might have been signed by her husband, she saw the complainant for the first time in the court, she never took any loan from the complainant, her husband did not discuss about complainant to her, her husband knew Mr. Rishi Prakash who is friend of complainant, Mr. Rishi Prakash might have given the cheque in issue to the complainant, after demise Ct. Case No.20138/17 Digitally Jai Singh vs Amita signed by Page 16 of 26 AAKANKSHA AAKANKSHA Date:
2023.11.07 15:40:11 +0530 of her husband the business was shutdown, Rishi Prakash also filed a civil case against her for recovery of money, she has been falsely implicated. During cross examination, DW1 deposed in brief that the address mentioned on the legal notice is incorrect as her house no. is 232 and not 245, she does not recollect receiving of legal notice or sending of any reply, she and her husband were not doing business of building material supply but only her husband was in the said business, her husband did not take loan for running the said business, her husband opened the bank account of the said business in her name, her ICICI Bank account is not joint with her husband, previously she was living in Hari Vihar near Kakrola till 2012, she does not know the complainant, she does not know the location of site of building material shop where her husband was running business, she does not remember the name of the person who threatened her husband, her husband moved application for getting the cheque books from bank, she does not remember the number of cheque books taken by her.
16.8. The defence of accused, as can be culled out from her plea, evidence and cross-examination of complainant, has been that she does not know the complainant, she never met the complainant or heard his name before filing of the present case, she never took any financial assistance from complainant, although the proprietorship firm M/s SBS Builders was under her name but the same was looked after and run by her husband, who committed suicide and that her husband only had possession of the cheque book of the said firm, that her husband had business relation with Rishi Prakash with whom complainant comes to court and Rishi Prakash might be instrumental in giving the cheque in issue to the complainant who misused the same. Now let us examine the defence of accused one at a time.
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16.9. Whether accused knew the complainant prior to filing of the present case?
The accused has taken defence that she does not know the complainant and never met the complainant, she never heard of complainant's name from her husband. Whereas complainant has come up with a case that accused and complainant had friendly relations as they were neighbours and thus accused availed financial assistance of Rs. 7 lacs from complainant on 15.05.2012 and Rs.3 lacs on 26.09.2013. the present case was filed on 16.10.2017. However, during his cross-examination, CW-1 deposed that he knew accused since past 4-5 years. This cross-examination was conducted on 03.06.2019. Thus, what complainant meant was that he knew accused since around the year 2014, which goes against the facts of the complaint that complainant knew the accused so well even prior to 2012 that he advanced a sum of Rs. 7 lacs to accused without nay loan agreement or any proof of the said transaction. Further, CW-1 admitted that he did not even know the address of accused where accused shifted in around the year 2017 and that since accused shifted from his vicinity he did not meet accused except in the court for the present case. Whereas on the other hand, CW-1 deposed on 14.02.2020 that after accused gave him a cheque for a sum of Rs. 500/- in 2015, he met accused in the court for the present case. Both the above statements cannot co-exist. It transpires that complainant is himself unsure as to when he met the accused for the last time before filing of the present case and admittedly despite alleging friendly relations, complainant has been unaware about the address of accused where the accused shifted in the same year when the cheque in issue is alleged to have been issued by accused i.e. 2017. Further, Ld. counsel has also raised an objection that owing to a large age gap between the parties, it is difficult to imagine friendly relation between the parties.
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Thus, accused has been successful in raising a prima facie doubt over the case of complainant.
16.10. Furthermore, complainant has deposed that accused handed him a cheque bearing number 125013 for a sum of Rs. 500/- in the year 2015 for the purpose of verification of account, and the same was duly encashed. Ld. counsel for accused has raised an objection stating that usually verification of account is done at the time when money is advanced to a person and not after 2-3 years. He also raised an objection to the effect that it is doubtful that cheque bearing number 125013 for Rs. 500/- would be given by accused to complainant in 2015 and cheque bearing number 125012 (which precedes 125013) would be given by accused to complainant in 2017. No explanation whatsoever has come forth on behalf of complainant to the above objections. Also, complainant has deposed that the cheque of Rs. 500/- was given by accused to complainant in presence of Rishi Prakash. Complainant has also deposed that he knows Rishi Prakash and that he comes to court every time with Rishi Prakash. Whereas accused has raised a defence that Rishi Prakash had business relations with her deceased husband and Rishi Prakash might have been instrumental in passing the possession of cheque in issue to complainant. However, despite taking such defence by accused during cross-examination of CW-1 itself, complainant has failed to examine Rishi Prakash. This has raised a further doubt on the case of complainant.
16.11. The pivotal defence raised by Ld. counsel for accused during the course of final arguments, has been that the complainant himself has admitted in his cross-examination that a sum of Rs. 500/-
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was paid to him which was also in discharge of part of the alleged loan and thus accused cannot be said to be liable to the extent of the cheque amount. Thus, it has to be adjudged whether on the date of presentation of cheque in issue, accused had an existing liability of Rs. 10,00,000/-.
The cheque in issue was presented by complainant on or after 28.08.2017 (date on the cheque) for a sum of Rs. 10,00,000/-. The alleged amount of loan is also Rs.10,00,000/-. However, bank witnesses CW-2 and CW-3 have placed on record bank account statements of complainant and accused thereby deposing and proving that a cheque bearing no. 125013 for a sum Rs. 500/- was encashed in the account of complainant on 07.10.2015. The said bank account statements are not under dispute by complainant. Complainant himself has deposed on 14.02.2020 that a cheque bearing no. 125013 for an amount of Rs. 500/- was given by accused to him in the year 2015 in presence of Rishi Prakash for verifying her account. Upon being questioned by the court, CW-1 admitted the fact that such payment of Rs. 500/- was towards principal amount of Rs. 10,00,000/-. Nevertheless, the cheque in issue was presented for a whole sum of Rs. 10,00,000/- by complainant on or after 28.08.2017. Thus, it can be safely held that when accused admittedly paid Rs. 500/- towards alleged principal amount of Rs. 10,00,000/-, she could not have been liable to pay the entire amount of Rs. 10,00,000/- on or after 28.08.2017. In such circumstances, even if it is believed that the accused borrowed a sum of Rs. 10,00,000/- from complainant, the liability of accused as on the date of presentation of cheque in issue would have been only to the extent of Rs. 9,99,500/-. However, admittedly the cheque in issue has been presented for an amount of Rs. 10,00,000/- which is more than the liability of accused. Thus, it is a proven fact that the cheque in issue has been presented by Ct. Case No.20138/17 Jai Singh vs Amita Digitally signed by AAKANKSHA Page 20 of 26 AAKANKSHA Date: 2023.11.07 15:40:31 +0530 complainant for an amount which was not due towards complainant on the date of its presentation.
16.12. It would be apposite to understand the law laid down by Hon'ble Supreme Court in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel (2023) 1 SCC 578 wherein it has been observed as follows:
"30. In view of the discussion above, we summarize our findings below:
For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would to be the sum represented on the cheque;
When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the [NI] Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under section 138 will stand attracted..."
Thus, what has been laid down in the above precedent is that a cheque presented without endorsement of part payment made by drawer after issuance of the said cheque and before its maturity, cannot be considered to be cheque presented in discharge of legally enforceable debt. In the present case also, as observed hereinabove the complainant has presented the cheque in question for an amount of Rs. 10,00,000/- i.e. more than the liability of accused on the date of its presentation without endorsement of part payment of Rs. 500/- on 07.10.2015. Thus, the accused has been able to prove her defence that Ct. Case No.20138/17 Digitally signed Jai Singh vs Amita by Page 21 of 26 AAKANKSHA AAKANKSHA Date:
2023.11.07 15:40:35 +0530 the cheque was presented for more than the liability of accused as on date of presentation.
16.13. Ld. counsel for complainant has relied upon the case of Santosh Mittal v. Sudha Dayal 2014 VIII AD (DELHI) 268.
However, the facts of the above case does not applied in the present case in so far as although there was no statutory requirement for execution of loan agreement, but the issuance of cheque has not been admitted by the accused in the present case. Moreover in the above case, the accused has failed to disclose her defence in her plea of defence and it was also found that the accused forged a false receipt and the same was never put to the complainant in her cross examination. Whereas in the present case, the accused has been successful in rebutting the presumption u/s 139 NI Act.
The first legal requirement is, thus, proved in favour of accused and against the complainant.
17. The second legal requirement is:
"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."
The cheque in question Ex. CW-1/2 is dated 28.08.2017. The cheque returning memo Ex. CW-1/3 is undated. However, complainant has averred that the cheque was returned dishonored on 30.08.2017 which has not been objected to by accused. It proves that the cheque in question was presented within the period of its validity. Further, defence has failed to controvert the said fact.
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Thus, the second legal requirement is adjudicated in favour of complainant.
18. The third legal requirement is:
"That cheque is 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 that it exceeds the amount arranged to be paid from that account by an agreement made with the bank."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and the upon production of such bank memo, the burden shifts upon accused to disprove the same. In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheque in question was dishonored for the reason stated therein viz. funds insufficient and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has failed to rebut the same.
Thus, the third legal requirement is adjudicated in favour of complainant.
19. The fourth legal requirement is:
"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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
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In the instant case, the cheque in issue was returned dishonoured on 30.08.2017. The complainant sent a legal notice dated 07.09.2017 (Ex.CW-1/4) addressed to the accused. Speed post receipt dated 08.09.2017 is also on record (Ex. CW-1/5). There is no tracking report on record. Non-filing of tracking report can be a ground for not summoning the accused but that stage is long over. On the merits, accused has first admitted receiving of notice in her plea of defence u/s 251 Cr.P.C. but later denied receiving of any notice in her statement u/s 313 Cr.P.C. However, accused has admitted her address to be correctly mentioned on the legal notice. Thus, in view of admitted address of accused, it can be said that the legal notice was properly addressed to the correct address of accused and by virtue of presumption u/s 27 General Clauses Act accused is deemed to have received the legal notice, if the notice has been sent to correct address by post.
19.1. Even otherwise, law expects a person pleading non- receipt of any demand notice to prove his bona fide by making the payment of the cheque amount within 15 days of receiving court summons. This is crystallized by the verdict of Hon'ble Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 made payment within 15 days of receipt of summons (by receiving a copy of complaint Ct. Case No.20138/17 Jai Singh vs Amita Digitally signed by Page 24 of 26 AAKANKSHA AAKANKSHA Date:
2023.11.07 15:40:54 +0530 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 G.C. Act and section 114 of the Evidence Act."
19.2. In the case at hand, despite issuance of summons and appearance of accused before the court, accused has failed to pay the cheque amount to the complainant and thus is precluded from raising the plea of non-service of demand notice.
19.3. Also, it is an undisputed fact and a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
20. The fifth legal requirement is:
"The drawer of such cheque fails 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."
It is an undisputed fact and also a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
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Thus, the fifth legal requirement is adjudicated in favour of complainant.
21. All the legal requirements constituting an offence u/s 138 NI Act being cumulative in nature, the fact that the first legal requirement has not been proved in favour of complainant, the ingredients necessary to bring home the guilt of accused remain incomplete. Accordingly, accused Amita is acquitted for the alleged offence u/s 138 NI Act.
Digitally signed by AAKANKSHA AAKANKSHA Announced in the open Date: 2023.11.07 court on 07.11.2023 15:41:04 +0530 (Aakanksha) Metropolitan Magistrate(NI Act)-07 South West District, Dwarka Courts, New Delhi Ct. Case No.20138/17 Jai Singh vs Amita Page 26 of 26