Delhi District Court
Geeta vs Loveraj on 31 May, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL No. 23/2022(RBT 100/2022)
IN THE MATTER OF:
Geeta
W/o Sh. Vijay Kumar,
R/o H.No. N-68/35, T-Huts,
Aruna Nagar, Majnu Ka Tila,
Civil Lines, Delhi-110054
............Appellant
Versus
Loveraj
S/o Sh. Prem Prakash,
R/o Devli Village,
New Delhi-110062
..............Respondent
Instituted on : 17.01.2022
Reserved on : 30.05.2023
Pronounced on : 31.05.2023
JUDGMENT
1. Vide this appeal, the appellant assails the judgment of conviction dated 03.12.2021 and order on sentence dated 13.12.2021, passed by Ld. Metropolitan Magistrate-04, South District, Saket Courts, New Delhi, in CA No. 23/2022 Geeta vs. Loveraj Page No. 1/12 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.31
16:29:16
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case bearing CT No.9272/2017 titled as "Loveraj Vs. Geeta", whereby she was convicted for the offence under section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act') and was sentenced to pay fine amounting to Rs.1,65,000/- payable as compensation to the respondent. In default of payment of same, she was directed to undergo simple imprisonment for a period of one month.
2. Brief facts as per record are as under:-
A complaint alleging commission of offence under section 138 NI Act was filed by respondent against the appellant with the allegations that respondent had friendly relations with the appellant. In December, 2016, he extended a friendly loan of Rs.1,20,000/- to her on being approached for this purpose. The appellant has assured him to return the said amount within two months, however she failed to do so. Later, in order to discharge her liability towards the respondent for the friendly loan, she issued cheque bearing no. 129148 dated 02.05.2017 for an amount of Rs.1,20,000/- drawn on State Bank of India, J-20 Saket, New Delhi-110017 (hereinafter referred to as the "cheque in question"). On presentation of cheque for encashment by respondent through his banker i.e. Punjab National Bank, Devli Village, New Delhi, same got dishonoured with remarks "Funds Insufficient" vide return memo dated 12.07.2017. The legal notice dated 13.07.2017 was sent to her on her address by registered post which was duly served to her. Despite that, the payment of the cheque in question was not made. Hence, complaint for the offence u/s 138 NI Act was filed against her.
CA No. 23/2022 Geeta vs. Loveraj Page No. 2/12
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.31
16:29:25
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3. Record transpires that post summoning and completion of necessary formalities, Ld Trial Court served notice u/s 251 CrPC upon the appellant on 11.10.2018 to which she pleaded not guilty and claimed trial. The plea of defence as taken by her at that stage is being reproduced below for the sake of convenience:-
"The cheque in question given as blank signed cheque against a loan amount of Rs.35,000/-. I have already returned the amount of Rs.30,000/-. I borrowed this amount for the help of my friend Ms. Baby for the operation of her husband. I have no borrowed the amount of Rs.1,20,000/- from the complainant. I had received the legal notice of demand. I have no legal liability to pay the cheques amount to the complainant."
3A. Record further transpires that in post summoning evidence, respondent/complainant deposed on the line of his complaint and relied upon following documents :-
a) Evidence by way of affidavit of complainant Ex.CW1/1,
b) Cheque in question Ex.CW1/A,
c) Return memo Ex.CW1/B,
d) Copy of legal demand notice Ex.CW1/C,
e) Postal receipt Ex.CW1/D,
f) Printout of tracking report Ex.CW1/E. 3B. Record further transpires that complainant was cross examined as CW-1 on 06.09.2019 by Ld. Defence Counsel.CA No. 23/2022 Geeta vs. Loveraj Page No. 3/12
Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.31
16:29:35
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3C. Trial Court record further reveals that in her statement u/s 313
CrPC, the appellant/accused claimed to be falsely implicated and stated as under :-
"I do not know the complainant. I was a member of committee which was run by one Baby. I had taken a sum of Rs.35000/- from Baby and handed over the cheque in question at her request in a blank signed condition by way of security. I have paid all the installments towards the committee except the last 3-4 installments due to financial difficulty. The complainant has misused the cheque in question in connivance with Baby. The amount of each installment was Rs.3500/- and I am only liable to pay 4 installment of Rs.3500/- to Baby and I am not liable to pay the amount mentioned in cheque in question to the complainant."
3D. Record further transpires that appellant examined herself as a witness (DW-1) u/s 315 Cr.P.C. in her defence on 07.12.2019 and was cross examined by Ld. Counsel for respondent on 13.03.2020.
4. Ld. Trial Court vide impugned judgment observed that appellant has failed to rebut the presumptions existing in favour of respondent and while acting upon the testimony of witness and relying upon the other material available on record, held that the ingredients of section 138 NI Act stand fully proved in the instant case. Ld. Trial court found the appellant/accused guilty of offence under section 138 NI Act and convicted her vide impugned judgment which is under challenge in the present appeal.
CA No. 23/2022 Geeta vs. Loveraj Page No. 4/12
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.31
16:29:44
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5. Arguments have been heard from both the sides.
It has been argued by Ld. Counsel for the appellant that Ld. Trial Court has convicted the appellant without properly appreciating the facts and law applicable thereupon. It has been submitted that as per the case of the respondent, the alleged loan amount was paid in cash, however he was not having the financial capacity to do so. It was further argued that in the complaint, the respondent has stated that he was having friendly relations with the appellant whereas in his cross-examination he is stated that he knew her because she worked as a maid in the house of his tenant, namely, Nishant. It was submitted that it was highly improbable that a person would advance a sum of Rs.1,20,000/- to a maid of his tenant. It was also submitted that the cheque in question was given in blank with signature only as security for the committee being run by one Ms. Baby and same has been misused by the respondent after filling the remaining details. It was also submitted that the respondent has filed several other cases against poor ladies in similar manner which is clear from the record called by this Court u/s 391 Cr.P.C. He has prayed for setting aside the impugned judgment and for acquittal of the appellant. He has relied upon judgment of Hon'ble Bombay High Court in M/s Pinak Bharat and Company Vs. Shri Anil Ram Rao Naik Crl. Appeal No. 1630/2011.
6. No arguments were led on behalf of respondent. Record reveals that the respondent had appeared before Ld. Predecessor on 07.04.2022. He was represented by one advocate on next date i.e. 11.07.2022 however, none has appeared on his behalf since then. It appears that respondent has nothing to say in the present proceedings.
CA No. 23/2022 Geeta vs. Loveraj Page No. 5/12
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.31
16:29:52
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7. I have considered the submissions alongwith record.
As mentioned earlier, Ld. Trial Court has convicted the appellant after holding that she has failed to rebut the mandatory presumptions under NI Act. The presumptions mentioned above are as under :-
118. Presumption as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made :-
a) of consideration-- 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;
b) as to date-- that every negotiable instrument bearing a date was made or drawn on such date;
c) as to time of acceptance--that every accepted bill of exhange was accepted within a reasonable time after its date and before its maturity;..........
139. Presumption in favor of holder: 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.
8. Regarding these presumptions, Hon'ble Supreme Court in Basalingappa Vs. Mudibasappa, Crl. Appeal No.636/2019 held as under:-
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-CA No. 23/2022 Geeta vs. Loveraj Page No. 6/12 Digitally signed
SUNIL by SUNIL GUPTA GUPTA Date:
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(i) Once the execution of cheque is admitted presumption that the cheque was for the discharge of any debt or other liability.
(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 from 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."
9. The crux of the case of the respondent before Ld. Trial Court is that the appellant was known to him and she approached him in December, 2016 seeking help for a sum of Rs. 1,20,000/- which was so advanced to her. The cheque in question was handed over to discharge said liability which was dishonored on being presented for encashment.
10. The defence taken by the appellant at the stage of notice u/s 251 CA No. 23/2022 Geeta vs. Loveraj Page No. 7/12 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.31
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Cr.P.C. before Ld. Trial Court was that she had given the cheque in question to the respondent in blank with her signature only against a loan of Rs.35,000/- out of which she has already returned a sum of Rs.30,000/-. It was also stated that the amount of Rs.35,000/- was borrowed for the help of her friend Ms. Baby for operation of her husband. She denied having borrowed the sum of Rs.1,20,000/- from the respondent.
11. During the brief cross-examination of respondent,the defence of the appellant as taken at the stage of notice u/s 251 Cr.P.C. was not put to the respondent in any manner. In fact, not even a single suggestion denying the alleged transaction was put to him. It seems that the focus of Ld. Defence Counsel was on showing the improbability of the transaction in question by getting on record the relationship between the parties, the reason as to why the alleged loan was so advanced and financial capacity of the respondent.
12. In her statement u/s 313 Cr.P.C., the appellant stated that the cheque in question was given as security for a committee being run by one Ms. Baby from whom she had taken a sum of Rs.35,000/-. It was also stated that the cheque was so given by her in blank signed condition and that the respondent has misused her cheque. She also stated that her liability was to the tune of four installments of Rs.3500/- each only. In her testimony as a witness u/s 315 Cr.P.C., her defence was similar to the defence taken during her statement u/s 313 Cr.P.C.
13. So it is clear from above that the appellant has taken different defences at different stages of trial. At the stage of framing of notice u/s 251 Cr.P.C., her defence was that she had borrowed a sum of Rs.35,000/-
CA No. 23/2022 Geeta vs. Loveraj Page No. 8/12
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.31
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against the blank signed cheque in question for the operation of husband of her friend Ms. Baby whereas in her testimony she stated that she had got a sum of Rs.35,000/- in the committee being run by Ms. Baby and cheque in question was issued in blank signed condition as security thereof. However, she has remained consistent in her defence on the point that she had never borrowed a sum of Rs.1,20,000/- from the respondent and that her blank signed cheque was misused.
14. Admittedly, the cheque in question is bearing signature of the appellant. There is no dispute to the dishonor of cheque in question or to the receipt of legal demand notice. The only defence taken by appellant before this Court is that no such loan was ever taken by her and that the respondent has failed to establish the existence of any such loan as no specific details thereof including pertaining to his financial capacity have come on record.
15. As mentioned earlier, the case of respondent is that he had advanced a sum of Rs.1.2 lacs to the appellant but the date, time or month thereof has not been specified. He has simply written in the complaint as well as in his evidence by way of affidavit Ex.CW1/1 that the appellant approached him in the month of December, 2016 for friendly loan of Rs.1.2 lacs and that same was so given keeping in view their relations. He has even failed to specify the mode of payment i.e. whether the amount was paid in cash or through banking channel. In his cross-examination, he has mentioned that the loan amount was given in December, 2016, however the date was not specified. Hon'ble Apex Court in Vijay Vs. Laxman & Anr. Crl. Appeal No. 261/2013 has held on the effect of omission to mention the date on CA No. 23/2022 Geeta vs. Loveraj Page No. 9/12 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.05.31
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which loan was allegedly advanced, as under:-
"In the first place the story of the complainant that he advanced a loan to the respondent-accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. The presumption is, however, rebuttable in nature."
16. So, this omission in itself is sufficient to create doubt on the case of respondent more so because he has not even specified the date when the cheque in question was received by him from the appellant.
17. There is another interesting point. As per the complaint and evidence by way of affidavit of the respondent, appellant was having friendly relations with him, however the nature thereof was not disclosed. In his cross-examination, he stated that he knew the appellant because she was working as a domestic help in the house of his tenant Mr. Nishant. Nothing has come on record thereafter to substantiate said submission. Also, as per the respondent (as stated in his cross-examination), the amount in question was given in December, 2016 as the husband of appellant was seriously ill and she needed the money to pay hospital bills. It is not clear as to why these facts were not so mentioned in the complaint or in his evidence by way of affidavit. It is not believable that a person will lend a sum to the tune of Rs.1.2 lacs to a lady only because she is working as a domestic help CA No. 23/2022 Geeta vs. Loveraj Page No. 10/12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.31 16:30:37 +0530 at the house of his tenant that too without security of any nature whatsoever. These facts make his case more doubtful.
18. Ld. Defence Counsel has also raised doubt on the financial capacity of the respondent. It is to be seen that the mode of payment of alleged loan to the appellant has not come on record. The entire complaint and evidence by way of affidavit of respondent is silent on this point. In his cross- examination, he stated that he used to file income tax return, however no such ITR has come on record. Here the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers & Ors., (2020) 12 SCC 724 is material in which it was held as under:-
"We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque."
19. Similar observations were made by Hon'ble Apex Court in Basalingappa Vs. Mudibasappa (supra). Reliance is also placed on the judgment of Hon'ble Kerala High Court in Sunitha vs. Sheela Antony, 2020 SCC Online Ker 1750 in which it was held as under:-
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent CA No. 23/2022 Geeta vs. Loveraj Page No. 11/12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.05.31 16:30:54 +0530 money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused."
20. Considering the above discussion, this Court is of the view that the appellant has successfully rebutted the presumptions existing in favour of the respondent by relying upon the material placed on record on behalf of respondent. Ld. Trial Court committed an error in holding otherwise in the impugned judgment dated 03.12.2021. With these observations, the instant appeal stands allowed. The impugned judgment and order on sentence emanating therefrom stand set aside accordingly. The appellant/accused Geeta stands acquitted of offence U/s 138 N I Act. She is directed to furnish personal bond & surety bond in the sum of Rs.15,000/- each for the purpose of Section 437 (A) CrPC. Bond has not been furnished. The demand draft amounting to 20% of the compensation amount deposited with Ld. Trial Court in terms of order dated 17.01.2022 of this Court be released to her against receipt.
Appeal stands disposed of.
Announced in the open (SUNIL GUPTA)
court on 31st May, 2023 Additional Sessions Judge-06
South, Saket Courts, New Delhi
CA No. 23/2022 Geeta vs. Loveraj Page No. 12/12
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.05.31
16:31:06
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