Delhi High Court
Geeta vs Anita & Anr on 26 May, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 24th February, 2025
Pronounced on: 26th May, 2025
+ CRL.L.P. 8/2021
GEETA
W/o Sh. Bhupinder Singh Fauji
R/o H. No. 298, Geeta Bhawan,
VPO, Prahladpur, Delhi. .....Petitioner
Through: Mr. Karan Sachdeva, Advocate.
versus
1. ANITA
W/o Rakesh, R/o H. No. 111,
Bank Wali Gali, Balmiki Mohalla,
VPO Preladpur Bangar, Delhi.
2. The State (NCT of Delhi) .....Respondents
Through: Mr. Shoaib Haider, APP for the State.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. An Application under Section 5 of the Limitation Act, 1963 read with
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as 'Cr.P.C.') has been filed on behalf of the Appellant/Geeta for
condonation of delay of 83 days in filing the Appeal.
2. It is submitted that due to some miscommunication
between the Complainant and the counsel the delay of 83 days happened in
filing the Leave to Appeal.
3. For the reasons stated in the Application, the delay of 83 days in filing
the Leave to Appeal is condoned and the Application is allowed.
4. Application stands disposed of.
CRL.L.P. 8/2021:
5. Leave to Appeal under Section 378 Cr.P.C. has been filed by the
Petitioner/Geeta against the Order of Acquittal dated 26.07.2020 in CC
No.10930/2016, whereby, Respondent No.1/Anita has been acquitted under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred
to as 'N.I. Act').
6. The Complainant/Geeta asserted in her in a Complainant under
Section 138 N.I. Act, that Respondent No.1 is her friend, to whom she had
given a friendly loan Rs.8,50,000/- in the month of September, 2012, which
the Respondent No.1 had assured to repay by April, 2013. She, however,
failed to repay the loan and when she persistently followed with her, she
gave two cheques dated 20.04.2013 of Rs.1,00,000/- each and one cheque
dated 30.04.2013 of Rs.6,50,000/-. However, on presentation, first two
Cheques dated 20.04.2013 were dishonoured for 'insufficiency of funds',
while the third Cheque dated 30.04.2013 got dishonoured on account of
'drawer's signatures different'.
7. Legal Notice dated 18.06.2013 under Section 138 N.I. Act was duly
served upon Respondent No.1 through courier despite which no payment
was made. Consequently, the Complaint under Section 138
N.I. Act was filed.
8. Respondent No.1 was summoned vide Order dated 19.09.2016.
Notice under Section 251 Cr.P.C. was framed on 21.12.2016, wherein
Respondent No.1 pleaded not guilty. She gave a defence that the
Complainant had approached her for giving three Blank Cheques under her
signatures, which she required for another litigation having been undertaken
by her against another person, who incidentally had the same name as Anita.
She gave three cheques, but denied having taken any loan from the
Complainant.
9. The Petitioner filed her Affidavit of Evidence but despite numerable
opportunities, Respondent No.1 failed to examine the Complainant. She also
did not come forth to lead any evidence in defence.
10. Learned M.M. in the impugned Order dated 26.07.2020, while taking
cognizance of the signatures on the cheque being admitted by Respondent
No.1, noted that there is no specific date given on which the loan of
Rs.8,50,000/- was given to Respondent No.1 by the Complainant.
Pertinently, the Bank Account Statements that were filed by the
Complainant of herself and of her husband along with the written
submissions, did not reflect the financial capacity of the Complainant to be
able to give the loan of Rs.8,50,000/-. Therefore, by observing that the
Complainant in the first instance had failed to discharge the initial burden of
proving that she gave a loan of Rs.8,50,000/- to the Respondent, dismissed
the Complaint under Section 138 N.I. Act and acquitted
Respondent No.1/Anita.
11. The impugned Judgment dated 26.07.2020, is assailed on the
ground that the testimony of the Complainant remained un-rebutted as
Respondent No.1 failed to question the testimony by way of cross-
examination. She also did not put forth any defence by examining herself or
any witness in support thereof to rebut the presumption under Sections 139
and 118(a) N.I. Act.
12. The judgment suffers from patent illegality and is therefore, liable to
be dismissed.
13. Respondent No.1 was served with the Appeal, despite which she
failed to appear and contest the Leave to Appeal.
14. Submissions heard and record perused.
15. It is not in dispute that Respondent No.1/Anita had issued three
cheques under her signatures, but her defence was that she had done so on
the request of the Complainant in order to help her in another litigation she
had undertaken with another person who incidentally had the same name as
Anita. Though, this defence had been sought up only under Section 251
Cr.P.C., but it was neither put to the Complainant by way of cross-
examination nor was positively asserted by her by way of leading evidence.
16. The question, which thus arises, is whether in the light of admission of
three cheques being given under her signatures, the presumption under
Section 139 N.I. Act makes it imperative for the Court to necessarily decide
the Complaint in favour of the Complainant.
17. ABBOTT, C.J., R. vs. Burdett, 4 B. & Ald, observed
that word 'presumption' inherently imports an act of reasoning for coming
to the conclusion of the judgment; and it is applied to denote such facts or
moral phenomena, as from experience we known to be invariably, or
commonly, connected with some other related facts. A presumption is a
probable inference which common sense draws from circumstances usually
occurring in such cases. The slightest presumption is of the nature of
probability, and there are almost infinite shades from slight probability to
the highest moral certainty. A presumption, strictly speaking, results from a
previously known and ascertained connection between the presumed fact
and the fact from which the inference is made.
18. Thus, which needs to be emphasized is that presumptions filed under
Sections 118 and 139 N.I. Act, are rebuttable in the nature. In the case of
Union of India vs. Pramod Gupta (D) By Lrs. & Ors., (2005) 12 SCC 1, it
was observed that the expression 'may presume' and 'shall presume' as
explained in Section 4 of the Indian Evidence Act, 1872, makes it evident
that whenever it is directed that the Court shall presume a fact, it shall
regard such fact as proved unless disproved. In terms of the said provision,
expression 'shall presume' cannot be held to be synonymous with
'conclusive proof'.
19. The scope of presumption under Section 118(a) N.I. Act was
considered by the Hon'ble Division Bench in Bharat Barrel And Drum
Manufacturing Company vs. Amin Chand Payrelal, (1999) 3 SCC 35,
wherein it was observed that where Defendant is able to discharge the initial
onus of proof showing that the existence of consideration was
improbable or doubtful, the onus would shift on the Plaintiff to prove it as a
matter of fact and his failure would disentitle him to any relief on the basis
of Negotiable Instrument. Such proof of existence or non-existence of
consideration, may be established either by direct evidence or by bringing
on record preponderance of probabilities by reference to the circumstances
upon which the complainant relies. Where the Defendant fails to discharge
the onus, the Plaintiff would invariably be entitled to the benefit of
presumption under Section 118(a) N.I. Act.
20. However, the manner in which such presumptions, as provide under
the Indian Evidence Act, 1872, as tools for proving the issues of fact and
law, were interpreted by the Hon'ble Apex Court in Kali Ram vs State of
Himachal Pradesh, (1973) 2 SCC 808, wherein it was noted that one of the
cardinal principles in administration of justice for criminal cases is that a
person arraigned as an accused is presumed to be innocent unless that
presumption is rebutted by the prosecution by production of evidence as
may show him to be guilty of the offence with which he is charged. The
burden of proving the guilt of the accused is upon the prosecution and unless
it relieves itself of that burden, the courts cannot record a finding of the guilt
of the accused. In certain cases, statutory presumptions arise regarding the
guilt of the accused, but even in those cases, it is upon the prosecution to
prove the existence of facts which have to be present before the presumption
can be drawn. Once those facts are shown to be existing, can the statutory
presumption be drawn and accused asked to rebut the presumption. The
onus even in such cases upon the accused is not as heavy as
is normally upon the prosecution to prove the guilt of the accused. If some
material is brought on the record consistent with the innocence of the
accused which may reasonably be true, even though it is not positively
proved to be true, the accused would be entitled to acquittal.
21. In the case of M. S. Narayana Menon vs . State of Kerala, (2006) 6
SCC 39, the Hon'ble Apex Court, while making a reference to the aforesaid
judgments, observed that it is for the Complainant to first establish the
existence of a debt for which the impugned cheques are issued in order to be
successful in a complaint under Section 138 N.I. Act. If the existence of debt
in respect of large part of the amount is not proved, then the presumption
cannot be drawn and the Complaint under Section 138 N.I. Act is liable to
be dismissed.
22. In the present case, though the Respondent No.1 aside from claiming
that the cheques being given by her to the Complainant on her request to
help her in another litigation with a third party with the same name, but has
neither chosen to cross-examine the Complainant or to lead her defence
evidence. Be as it may, in the light of as discussed above, it is still for the
Complainant to establish that there was an existence of debt in respect of
which the cheques got dishonoured. That unless this foundational basis is
established, there is no question of the presumption under Section 118 N.I.
Act to be kicked in.
23. The learned M.M. has rightly observed that as per the Complainant
she had given the loan in September, 2012. Pertinently, there is no mention
of the date on which the loan was given, either in the
Complaint or in the Legal Notice or in the Affidavit of Evidence. Certainly,
Rs.8,50,000/- is not a small amount and no prudent person would give a loan
securing it by a corresponding document receipt or any such document.
24. In this regard, it is pertinent to note that along with the written
submission, the Complainant had placed on record the Bank Account
statements of herself and her husband. Learned M.M. has noted that
statements of Bank Accounts of the Complainant and her husband do not
reflect the financial status or capacity of the Complainant for giving such
loan of Rs.8,50,000/- on given dates.
25. In these circumstances, learned M.M. was fully justified in observing
that the Complainant was not able to prove the existence of legally
recoverable debt and in dismissing the Complaint under Section 138 N.I.
Act thereby, acquitting the Respondent.
26. There is no ground for granting Leave to Appeal and the Application
is accordingly dismissed along with the pending Applications.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 26, 2025/R
