Delhi District Court
Metropolitan Magistrate (Ni Act) vs Anuradha on 16 September, 2021
DLST020236602017 NEHA Digitally signed by
NEHA BARUPAL
BARUPAL Date: 2021.09.16
14:46:46 +05'30'
Presented on : 17.10.2017
Registered on : 24.10.2019
Decided on : 16.09.2021
Decision : Acquitted
IN THE COURT OF
METROPOLITAN MAGISTRATE (NI ACT)
AT SOUTH, SAKET DISTRICT COURT
(PRESIDED OVER BY MS. NEHA BARUPAL)
CT Cases/12492/2017
CNR NO.DL ST02-023660-2017
AMIT KUMAR
Son of Mr.Kedar Prasad
R/o D-781, Khadda Colony,
Badarpur, New Delhi
..............Complainant
VERSUS
ANURADHA
daughter of Puran Lal
R/o E-1576, Tigri Colony,
Khanpur, New Delhi .............. Accused
Offence punishable under section 138 of Negotiable
Instruments Act, 1881
CT Cases 12492/2016
AMIT KUMAR V. ANURADHA Page No. 1/7
JUDGMENT
1. The instant proceedings have originated out of a complaint preferred under section 138, Negotiable Instruments Act, 1881 (hereinafter "NI Act"). Briefly stated, the case of the complainant as stated in the complaint is that the complainant and the accused were known each other since 2014. It is alleged that in the year 2015, the accused approached the complainant for financial help of Rs.4 lakhs and the complainant gave the same to the accused as friendly loan in various installments for a period of one year. It is further stated that after repeated reminders, the accused issued a cheque bearing number 730901 dated 04.08.2017 for a sum of Rs.3,70,000/- drawn on State Bank of India, Ambedkar Nagar, Sector 1, Delhi (hereinafter referred to as the "cheque in question") towards discharge of the abovesaid liability.
2. Thereafter, the complainant presented the said cheque for encashment and the same was returned unpaid upon presentation for the reason "funds insufficient" vide return memo dated 05.08.2017. That a legal notice dated 04.09.2017 was duly sent by the complainant to the accused in this regard, but to no avail as the accused failed to pay the cheque amount within the prescribed period. Hence, the present complaint under Section 138 NI Act was filed.
NEHA Digitally signed by
NEHA BARUPAL
BARUPAL Date: 2021.09.16
14:47:06 +05'30'
CT Cases 12492/2016
AMIT KUMAR V. ANURADHA Page No. 2/7
3. In order to support his case, the complainant got examined Senior Manager from Corporation Bank (C1) who brought the bank account statement of the complainant (Ex. C1/B). The complainant tendered his affidavit Ex.CW1/1 into evidence wherein averments made in the complaint were reiterated. He also relied upon various documents such as Ex.CW1/A which is the cheque in question; Ex.CW/B which is the return memo; Ex.CW1/C(colly) which are the legal notice, postal receipts, tracking report and certificate mandated by section 65B of Indian Evidence Act.
4. The accused entered appearance after issuance of non-bailable warrant and was admitted to bail on 18.09.2019. Notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was served upon the accused, to which she pleaded not guilty and claimed trial and her plea of defence was recorded. The plea of defence, being brief, is being reproduced here. She stated as follows: "I do know the complainant. The cheque in question does not belong to me. The cheque in question has not been signed by me and the rest of the particulars were not filled up by me. I have not received the legal notice. Complainant was my gym trainer. I do not have any liability towards the complainant."
5. The accused was thereafter allowed to cross examine the NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.09.16 14:47:17 +05'30' CT Cases 12492/2016 AMIT KUMAR V. ANURADHA Page No. 3/7 complainant on preferring an application under section 145(2) NI Act. After closing of complainant evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein the incriminating evidence were put to the accused. The accused reiterated her plea of defence and also added that she does not have any account in SBI. She further admitted that the address mentioned in the legal notice is hers.
6. The matter was thereafter fixed for defence evidence and the accused examined a witness from State Bank of India in her defence. The said witness brought certified copy of the account opening form along with KYC (Ex. DW1/A)(colly) of the bank account on which the cheque in question has been drawn and the statement of the said account (Ex. DW1/B)(colly). Defence evidence was closed on 22.02.2020 and the matter was fixed for final arguments on 12.03.2020.
7. It is apposite to mention here that the matter was adjourned for final arguments about eighteen times excluding en bloc adjournments owing to the COVID-19 pandemic and including two adjournments with "last and final opportunity" for addressing arguments. In spite of ample notice of the dates of the proceedings conducted via video conferencing as well as physically, on many of which the complainant and/or several proxy counsels on behalf of the complainant had been present, NEHA Digitally signed by NEHA BARUPAL BARUPAL Date: 2021.09.16 14:47:29 +05'30' CT Cases 12492/2016 AMIT KUMAR V. ANURADHA Page No. 4/7 none of the opportunities were availed by the complainant to address final arguments or file written submissions. Brief submissions as advanced on behalf of the accused were heard and the said submissions were mentioned in the order 19.07.2021. Vide order dated 24.08.2021, the complainant was still given liberty to file written arguments till five days before the date fixed for pronouncement of judgment. This opportunity was also not availed by the complainant. Having noted this, I proceed to decide the present case.
8. I have carefully perused the record and have given my thoughtful consideration to the oral submissions of Ms. Asha Jatav, learned counsel for the accused. She argued that the cheque in question does not belong to the accused and has not been signed by the accused and the same has been proved by summoning of the concerned bank witness. Before appreciation of the evidence led on behalf of both the parties, at the very outset, I would like to narrate the legal principles relevant for adjudication of complaint under Section 138 of NI Act.
9. To establish the offence under section 138, NI Act the prosecution must naturally establish all the requisite ingredients of the offence as elucidated below:
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money CT Cases 12492/2016 NEHA Digitally signed by NEHA BARUPAL AMIT KUMAR V. ANURADHA BARUPAL Date: 2021.09.16 14:47:38 +05'30' Page No. 5/7 and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
10. The accused has denied any liability towards the complainant and the defence raised is that the cheque in question neither belongs to her nor signed by her. To buttress her argument, the accused examined witness from State Bank of India (DW-1) for bringing into evidence certified copy of the account opening form of account no. 20366222677 which is the account on which the cheque in question has been drawn. DW-1 was duly cross-examined by Mr. Manish Sharma, learned counsel for the complainant.
11. It is crystal clear from the deposition of DW-1 and perusal of the record brought by him (Ex. DW1/A)(colly) that the NEHA Digitally signed by NEHA BARUPAL CT Cases 12492/2016 AMIT KUMAR V. ANURADHA BARUPAL Date: 2021.09.16 14:47:49 +05'30' Page No. 6/7 account in question is in the name of one Ms. Payal Rani wife of Mr. Karan Kumar and not the accused herein, i.e. Ms. Anuradha. That being so, even the first ingredient of the alleged offence is not fulfilled since the cheque in question has not been drawn by the accused on an account maintained by her. Thus, it is evident that the complainant has miserably failed in establishing his case and failed to prove the offence under section 138 NI Act against the accused.
12. In view of the aforementioned discussion, I am of the considered opinion that the complainant has failed to establish his case beyond reasonable doubt by proving all the ingredients under Section 138 NI Act and the accused has successfully proved her defence. Thus, accused Anuradha is hereby acquitted for the offence punishable under Section 138 NI Act qua the cheque in question in the present case. Announced in the Open Court on this 16th September 2021. This Judgment consists of 7 signed pages.
NEHA Digitally signed by
NEHA BARUPAL
BARUPAL Date: 2021.09.16
14:48:02 +05'30'
(NEHA BARUPAL)
Metropolitan Magistrate (NI Act)-03 (South), Saket/New Delhi/16.09.2021 CT Cases 12492/2016 AMIT KUMAR V. ANURADHA Page No. 7/7