Delhi High Court

Leena Kataria vs State & Anr on 16 January, 2020

$~6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 16.01.2020

+     CRL.A. 131/2018
      LEENA KATARIA                                      ..... Appellant
                         Through      Mr.Faisal Naseem, Adv. with
                                      Mr.Vinay Garg, Adv.

                         versus

      STATE & ANR                                        ..... Respondents
                         Through
                                      Mr.Abhay Kumar, Adv. with
                                      Mr.Rahul Ranjan, Adv. for R-2.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

1. The present petition is filed under section 378(1) of Cr.P.C. seeking

special leave to appeal against the impugned order dated 10.01.2017 passed

by learned MM (N.I. Act)-04, South East District, Saket Courts, New Delhi

in the criminal complaint No.614484/16.

2. The facts of case as stated in the present petition are that respondent

no.2 approached petitioner for a friendly loan of ₹3,15,000/- (Rupees Three

Lakh Fifteen Thousand Only) in April-July, 2012 and due to good relations

with respondent no.2, petitioner gave loan to him with the assurance that he

shall return the said amount as early as possible. After much persuasion and

request to respondent no.2 for clearance of outstanding amount of Rs.

3,15,000/-, respondent no.2 issued a cheque bearing No.208135 dated

05.01.2014 for a sum of Rs.2,95,000/- drawn on Punjab & Sind Bank,

Kalkaji, New Delhi in favour of petitioner. However, on presentation of the

cheque, it was dishonoured due to 'insufficiency of funds' which was

informed to the petitioner vide cheque return memo report dated 21.01.2014.

The petitioner by means of legal notice dated 04.02.2014 called upon

respondent no.2 to make payment of the cheque amount within 15 days from

the date of receipt of notice. Since there was no response from respondent

no.2, petitioner instituted a complaint under Section 138 of the Negotiable

Instruments Act, 1881 before the court of Ld. MM with a prayer to summon,

try and punish him for the offence committed. Thereafter, notice under

Section 251 Cr.P.C. was framed against respondent no.2. The respondent no,

who filed an application under Section 145(2) NI Act which was allowed by

the Ld. MM on 21.09.2015.

3. Further case of petitioner is that she examined herself as CW-1 by

way of affidavit and also cross examined and discharged. After the evidence

of petitioner, respondent no.2 was examined under Section 313 Cr.P.C.

wherein all the incriminating evidences were put to him and he denied the

same. Consequently, respondent no.2 examined himself as DW-1 and he

was cross examined and discharged. Respondent no.2 in order to rebut the

presumption had relied upon a cheque book allegedly bearing the receiving

from the petitioner and legal notice dated 04.10.2013 without any proof of

service. Thereafter, the learned MM vide impugned judgment dated

10.01.2017 acquitted respondent no.2 for the offence under section 138 of

the N.I. Act.

4. The present petition is filed on the ground that impugned order dated

10.01.2017 is ex facie contrary to the law and perverse and is wholly unjust

and the same is liable to be set aside. Learned MM has erred by ignoring the

statement of respondent no.2 recorded under Section 313 Cr.P.C. wherein he

has clearly admitted that loan was taken from the petitioner amounting to

Rs. 3,15,000/- during the period of April to July 2012 and has further

admitted to have issued the cheque in question in favour of petitioner.

Moreover, Ld. MM has also overlooked the notice framed under Section 251

Cr.P.C. against respondent no.2 wherein he has admitted to have taken a

loan from the petitioner though he alleged to have taken loan of

Rs.1,50,000/- and set up the defence of issuing the cheque in question as

security for the loan.

5. Learned counsel for the petitioner submits that learned MM has failed

to appreciate the law that defence of security necessarily stipulates that

repayment has been made by the borrower but in the present case respondent

no.2 has miserably failed to prove repayment of loan amount to the

petitioner. The court below has erred in law in believing testimony as well

as the documents produced by respondent no.2 as a gospel truth without

requiring him to prove the same in contravention of the law of evidence. It is

further submitted that decision of Ld. MM is solely on the basis of two

documents produced by respondent no.2 which are one; a cheque book

which is Exhibit DWl/B alleged to be bearing signatures of the petitioner

and the other; legal notice which is Exhibit DWl/C allegedly sent by

respondent no.2 to the petitioner. However, respondent no.2 has miserably

failed to prove both these documents on record. Thus, the impugned order

deserves to be set aside.

6. On perusal of the impugned order dated 10.01.2017, it is revealed that

the case of complainant/petitioner is that she had advanced loan of

Rs.3,15,000/- to accused/respondent no.2 but the same has not been

supported by any document to prove that the loan was actually advanced.

The petitioner in her examination as CW-1 had specifically stated that she

can produce the bank statement to show withdrawal of money from her

account, however, she did not produce any document. To support her claim,

further, the petitioner has stated that loan was given in three partly payments

from the month of April to July 2012 in cash. However, no specific date has

been mentioned in the complaint regarding payments were made to

accused/respondent no.2. The petitioner also denied service of legal notice

Ex.DW1/C sent by respondent no.2 to her demanding his blank cheques.

However, petitioner contended before the Ld. Trial Court that notice Ex.

DWl/C was not sent to her on her address. The same was denied by

respondent no.2 in his cross-examination and he specially stated that the

legal notice was sent on the address of maternal house of the petitioner. The

petitioner did not prove that she has severed from her parents but after

marriage the address was not of her parents. The legal notice Ex. DWl/C is

accompanied with postal receipt Ex. DWl/D, therefore, on the basis of the

presumptions u/s 27 General Clauses Act and 114(F) of the Indian Evidence

Act, 1872 Ld. Magistrate opined that legal notice was delivered to the

petitioner. Petitioner has also tried to bring contradiction on record in the

testimony of respondent no.2 and legal notice Ex. DWl/C wherein in para

no.2 it is stated that respondent no.2 had taken friendly loan of Rs.

1,50,000/- which is contrary to the deposition of respondent no.2 as DW-1

where he has deposed that he was a guarantor for loan advanced of

Rs.50,000/- and Rs. 1,00,000/- to two different persons. Based upon the

aforesaid facts, the learned Trial Court opined that it is not a material

contradiction as the loan admitted by respondent no.2 is Rs. 1,50,000/- for

whichever purpose he might have taken the same. It is of no material

consequence that whether the loan of Rs. 1,50,000/- was taken by

respondent no.2 himself or a guarantor as on both the occasions, he has

admitted and has been constant on the point of amount of loan of Rs.

1,50,000/-.

7. The contention of the petitioner before Ld. the Trial Court was that

entry at point "A" and "B" and her signatures in passbook Ex. DWl/B are

forged, false and fabricated. However, the burden was upon the petitioner to

take the argument to its logical end. No steps were taken by petitioner to get

the document examined by Forensic Expert. Further, on comparing through

naked eye, the disputed signature at point "A" & "B" on Ex. DWl/B and the

signatures of the petitioner on her testimony dated 10.03.2016 appeared to

be similar. Accordingly, the Ld. Trial Court opined that the bare denial of

signatures will not come to the rescue of petitioner.

8. It is not in dispute that loan was given in the year 2012. The

petitioner has also stated in her complaint Ex.CW1/6 in para 5 that "the

accused had issued two other cheques out of which cheque for Rs.5,000/-

was honoured on 08.08.2012 and another of Rs.15,000/- was dishonoured

on 28.12.2012". She has also stated in her cross-examination as CW-1 that

"I had received total three cheques from the accused. The first cheque was

cleared on 08.08.2012 and second cheque was dishonored vide memo dt.

28.12.2012 and the third cheque was dishonored vide memo dt.

21.01.2014".

9. The Ld. Trial Court observed that petitioner has also failed to give

particular dates on which the cheques were issued by respondent no.2 in

favour of the petitioner. Further, petitioner has not given any satisfactory

reason as to why she did not send any written communication demanding

the balance payment from respondent no.2. This fact becomes all the more

important in the light of the testimony of respondent no.2 as DW-1 and legal

notice Ex.DWl/C sent to the petitioner in October 2013 demanding his

security cheques from the petitioner. Accordingly, learned Trial Court

opined that the case of the petitioner that there exists legally enforceable

debt of Rs.3,15,000/- against respondent no.2, is rendered doubtful. Based

upon that, the learned Trial Court dismissed the case of the petitioner and

acquitted respondent no.2 for the offence punishable under section 138 of

the N.I. Act.

10. It is a settled principle of law that the presumptions U/s 118 (a) and

139 of N.I. Act, 1881 are rebuttable in nature and standard of proof required

by accused such rebuttal is preponderance of probabilities and the standard

of proof on behalf of prosecution is proof of guilt beyond all reasonable

doubts. In the case of K. Prakashan Vs. P. K. Surenderan: (2008) 1 see 258

wherein it is observed that:-

"Para 13. The Act raises two presumptions: firstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms "proved" and "disproved" as contained in Section 3 of the Evidence Act as also the nature of the aid burden upon the prosecution vis-a-vis an accused it is not necessary that the accused

must step into the witness box to discharge the burden of proof in terms of the aforementioned provision." Para 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution

is concerned is proof of guilt beyond all reasonable doubt, the one on the accused is only mere preponderance of probability".

Para 16. The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Vs. State ofKerala wherein it was held :(SCC p. 50, para 30) "30. Applying the said definitions of "proved" or "disproved" to the principle behind. Section 118 (a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon".

Para17. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefore can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon".

11. Accordingly, following the law laid down in the above mentioned

judgments and also the law of preponderance of probability which runs

common through the judgments relied upon by the accused/respondent titled

as Vijay vs. Laxman & Anr: 1 (2003) BC 743 (SC); Shobha vs. Gajanan: 1

(2003) BC 101 of Hon'ble Bombay High Court; Ashok Leyland Finance

Ltd vs. State of Rajasthan &Anr.: 1 (2013) BC 433 of Hon'ble Rajasthan

High Court; Kanahiya Ghamandi Lai vs. Subhash: 1 (2013) BC 391 of

Hon'ble Rajasthan High Court; and Sanjay Mishra vs. Ms. Kanishka

Kapoor: AIR 2009 (NOC) 2327 (Bom)=2009 (4) AIR Bom R 436, the

respondent has been successful in rebutting the presumptions in favour of

the petitioner. Now, when accused/respondent has been successful in

rebutting the presumptions U/s 118 (a) and 139 of N.I. Act, the burden shifts