Delhi High Court
Bhagwati Devi Through L.Rs. Pramod ... vs Sh. Balraj Singh Chopra on 5 January, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: December 20, 2023.
% Pronounced on: January 05, 2024
+ CRL.L.P. 438/2022
BHAGWATI DEVI THROUGH L.RS. PRAMOD
KUMAR .....Petitioner
Through: Mr. V.K. Sharma, Advocate
Versus
SH. BALRAJ SINGH CHOPRA ..... Respondent
Through: Mr. Suresh Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SAURABH BANERJEE
% JUDGMENT
1. The petitioner/complainant, vide the present leave petition under
Section 378(4) of the Code of Criminal Procedure, 1973 [CrPC], seeks leave
to appeal against the impugned order dated 29.06.2022 passed by the learned
Metropolitan Magistrate, East, Karkardooma Courts, Delhi [Trial Court] in
Complaint Case No.58354/2016, whereby the respondent/accused has been
acquitted qua the alleged commission of offence punishable under Section
138 of the Negotiable Instruments Act, 1881 [NI Act].
2. As per the facts alleged by the petitioner (since deceased), the
petitioner as landlady of the premises being property no.A-2/188, Harsh
Vihar Main, 20 Foota Road, Delhi [property] entered into a Rent Agreement
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By:BABLOO SHAH
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dated 03.08.2011 with the respondent whereby the respondent took on rent
the first floor of the aforesaid property for a monthly rent @ Rs.3,600/- to be
increased by 10% after the expiry of 11 months. The respondent handed over
cheque bearing number 151026 dated 16.08.2012 for a sum of Rs.16,079/-
drawn on the Janata Co-operative Bank Ltd., East Krishna Nagar, Delhi-
110051 to the petitioner in lieu of rent w.e.f. 03.04.2012 to 02.07.2012 and
electricity charges.
3. On the presentation of the said cheque for encashment by the
petitioner, it was dishonoured vide return memo dated 03.09.2012 for the
reasons 'Funds Insufficient'. The petitioner then sent a Legal Notice dated
20.09.2012 to the respondent which was returned undelivered for the reasons
that the respondent did not reside at the said address. Since the respondent
failed to make the payment, the petitioner filed the complaint dated
07.10.2017.
4. The learned Trial Court issued summons to the respondent vide order
dated 09.01.2013, whereafter notice under Section 251 of the CrPC was
issued to the respondent on 24.03.2014, wherein he raised his defence that
though the cheque in question was signed by him, however, it was never
handed over to the petitioner, as it was given to an Insurance Agent from
T.R. Sawney Motors for the purpose of insurance of his vehicle, which was
returned to him and was later stolen from his house on 30.08.2012. The
respondent thereafter moved an application under Section 145(2) of the NI
Act which was allowed and the petitioner was duly cross examined. Vide
order dated 16.04.2018, the LRs of the deceased petitioner were impleaded
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and the statement of the respondent under Section 313 of the CrPC was also
recorded vide order dated 16.10.2019.
5. Vide the impugned order dated 29.06.2022, the learned Trial Court
acquitted the respondent of the offence punishable under Section 138 of the
NI Act, holding that since the respondent had admitted his signature on the
cheque, but the onus under Sections 139 of the NI Act fell upon the
respondent to rebut the same, and the respondent had successfully rebutted as
there were serious contradictions in the testimony of the petitioner which
created serious doubts as to the veracity of the complaint. Further, the
petitioner failed to overcome the contradictions and omissions in her case to
establish a legally enforceable debt in her favour, leading to the respondent
being acquitted of the alleged offence under Section 138 of the NI Act.
6. Before this Court, learned counsel for the petitioner submits that the
learned Trial Court failed to take into consideration that the relationship of
landlord and tenant was duly established between the petitioner and the
respondent and that all requirements under Section 138 of the NI Act were
duly fulfilled as the cheque in question was handed over by the respondent to
the petitioner in lieu of the rent as well as electricity charges and since the
respondent had admitted his signatures on the cheque in question, all the
material requirements of Section 138 of the NI Act, were fulfilled.
7. Learned counsel for the petitioner further submits that the respondent
had claimed that the said cheque was for a sum of Rs.6,079/- and that the
same was given to an Insurance Agent from T.R. Sawney Motors for the
purpose of insurance of his vehicle which was returned to him as some of the
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denting and painting was still remaining, however, the Trial Court has erred
in not considering that the same was never proved by the respondent and that
the witness from T.R. Sawney Motors also did not support the case of the
respondent.
8. Per contra, learned counsel for the respondent submits that there is no
error or perversity in the impugned order as the learned Trial Court has
rightly held that the petitioner had failed to establish its case beyond
reasonable doubt. Learned counsel for the respondent further submits that the
cheque in question was never handed over to the petitioner and that in any
event, the same was stolen from the premises of the respondent on
30.08.2012 and the respondent had also made a police complaint in this
regard.
9. Learned counsel for the respondent also submits that the respondent
never met the petitioner and that the respondent had rented the premises from
a third party i.e., one Satish Chand, who had actually taken his signatures on
blank documents. He also submits that there are material contradictions in the
testimony of the petitioner and that the complaint did not fulfil the
requirements of Section 138 of the NI Act as the petitioner had been unable
to prove that there was a legally enforceable debt to be paid by the
respondent and that as to how the amount of Rs.16,079/- was arrived at.
10. This Court has heard the learned counsel for the parties and has
perused the documents on record.
11. For any complaint under Section 138 of the NI Act, a complainant like
the petitioner herein, is duty bound to show and establish the basic
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ingredients therein, without which, the very complaint is bound to crumble
and fall as the very essence of such a complaint is lost. In the present case,
the petitioner has failed to do so, as she has been unable to fulfil the
requirements of Section 138 of the NI Act. The petitioner has not been able
to establish that there was a legally enforceable debt which was due to be
paid by the respondent. Further, though the respondent has admitted his
signatures on the cheque in question, however, that by itself is not sufficient
for the offence under Section 138 of the NI Act to be made out as it was upon
the petitioner to establish beyond reasonable doubt the link between the
cheque amount, the relationship with the petitioner and all the surrounding
circumstances thereof for making out the offence under Section 138 of the NI
Act against the respondent.
12. Furthermore, a perusal of the record reveals that there are material
contradictions in the testimony of the petitioner as she had all throughout
been varying her stand. The petitioner had been inconsistent in her complaint
and in her cross examination. On one hand, though she had averred in the
complaint that only the first floor of the property was rented out to the
respondent, however, very surprisingly, the Rent Agreement annexed with
the complaint pertains to the entire property comprising of both the ground
and first floor. Though the relation of landlord and tenant was the fulcrum of
her complaint, she was unable to show and establish when the respondent
started residing in the rented premises and whether the rent @ Rs.3,600/- per
month was for the whole property or only the first floor of the said property.
Each of the aforesaid, being extremely vital factors, had to be met with the
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highest threshold and any complainant like the petitioner herein, had to be
cautious and prudent while making out a complaint as also when stepping
into the witness box, more so whence the said facts are interconnected and
form the very backbone of her complaint.
13. Further, the amount mentioned in the cheque in question also played a
pivotal role before the learned Trial Court and it was incumbent upon the
petitioner to show that the same was a 'legally enforceable debt' recoverable
from the respondent which was owing and due to her. However, in the case at
hand, the petitioner failed to show and/ or prove anything on that account as
not only there was a (complete) silence about the amount mentioned in the
cheque but also there was no explanation qua the breakup of the amount
therein. Even though the petitioner had averred that the amount includes both
outstanding rent as also electricity charges, however, she failed to bring on
record any evidence to show the said electricity charges due and payable by
the respondent.
14. Most interestingly, the cheque in issue was the same qua the loss of
which the respondent had in fact, already made a police complaint prior to
the institution of the complaint by the petitioner. Thus, the facts herein reveal
that the respondent was successful in discharging the onus under Section 139
of the NI Act as he was able to rebut the contentions of the petitioner as it is
and was consistent in the stand taken by him.
15. In view thereof, this Court finds that there are no new grounds or cause
made out by the petitioner showing any illegality and/ or perversity in the
order passed by the learned Trial Court. It is the petitioner who failed to
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discharge her onus as she was unable to establish her case beyond reasonable
doubt. Moreover, the learned Trial Court has arrived at a plausible view,
which as per the considered opinion of this Court, requires no interference at
this stage. Considering the above, this Court is agreeable with the view taken
by the learned Trial Court and thus finds that the present petition is without
any merit.
16. Accordingly, the present leave petition is dismissed.
SAURABH BANERJEE, J.
JANUARY 05, 2024/rr
