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2017 Supreme(Del) 1819
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
SANJAY ARORA - Appellant
Versus
MONIKA SINGH - Respondent
Crl.A. 98 of 2017
Decided On : 31-05-2017
For the Appellant :Mr. Ankur Jain, Advocate.
For the Respondent:Mr. Paritosh, Adv. with respondent in person.
The statutory presumptions under the Negotiable Instruments Act place the initial burden on the defendant to rebut the presumption of consideration for the cheque by proving the non-existence of consideration through positive evidence or preponderance of probabilities.
Headnote:
Negotiable Instruments Act - Prosecution under Section 138 - 138 of Negotiable Instruments Act - 138
Fact of the Case:
The appellant filed a criminal complaint against the respondent for dishonoring a cheque. The trial court acquitted the respondent, finding the appellant's case highly improbable. The appellant appealed the decision.
Finding of the Court:
The trial court's approach was misdirected, and the respondent's defense remained unsubstantiated. The statutory presumption under Section 139 of the Negotiable Instruments Act was not rebutted, and the respondent was held guilty and convicted for the offense under Section 138.
Issues: The issues revolved around the credibility of the appellant's case, the respondent's defense, and the statutory presumptions under the Negotiable Instruments Act.
Ratio Decidendi: The court emphasized the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act, placing the initial burden on the defendant to rebut the presumption of consideration for the cheque. The court highlighted the need for the defendant to prove the non-existence of consideration by positive evidence or preponderance of probabilities.
Final Decision: The respondent was held guilty and convicted for the offense under Section 138 of the Negotiable Instruments Act.
1. The appellant had instituted criminal complaint, registered as CC No. 832/2015 (New number 3008/2016), on 7.1.2010 seeking prosecution of the respondent herein for offence under Section 138 of Negotiable Instruments Act, 1881. The Additional Chief Metropolitan Magistrate (ACMM) to whom the case was allocated, after preliminary inquiry, issued process and having secured the presence of the respondent put her on trial, adopting summons trial procedure, by serving upon her a notice of accusations in terms of Section 251 of the Code of Criminal Procedure, 1973 (Cr.P.C) on 25.11.2011. Since the respondent entered plea of not guilty explaining her defence, followed by an application under Section 145 (2) of the Negotiable Instruments Act, she was granted opportunity to cross-examine the complainant (CW-1) who appeared as the solitary witness in support of his case. Having recorded, thereafter, the statement of the respondent under Section 313 Cr.P.C. on 4.2.2016, she not adducing any evidence in defence, the ACMM heard the parties and, by judgment dated 30.3.2016, pronounced acquittal holding that the statutory presumption (under Section 139 of Negotiable Instruments Act) stood rebutted, the facts pleaded by the appellant (complainant) about the liability being highly improbable.
2. By the criminal appeal at hand, instituted with leave of this Court, as granted by order dated 23.1.2017, in terms of Section 378 (2) Cr.P.C., the complainant seeks to assail the afore-said result of the criminal case.
3. The respondent has resisted the appeal by oral submissions on the basis of trial court record which has been called for and perused. Arguments of both sides, through counsel, have been heard.
4. The background facts, simply put, are that the complainant alleges that he and respondent have been acquainted with each other for a long time, she having approached him for financial assistance and he having advanced an amount of Rs. 2 lakhs to her in February, 2009 for repayment of which she had issued a cheque it bearing No. 263601 dated 12th August, 2009, drawn on her account in Canara Bank, Patparganj, Delhi. It is alleged that the said cheque, when presented through the bank of the complainant, was returned unpaid for want of funds immediately whereafter a legal notice dated 25th August, 2009 was served at the instance of the complainant on the respondent to which she did not give any reply. It was alleged in the complaint that respondent thereafter had approached the complainant again explaining her inability to make the payment of said amount of Rs. 2 lakhs on account of illness of her father who was then hospitalized, she requesting for an additional amount of Rs. 3 lakhs, against this backdrop, promising to return the entire amount within four months. The complainant alleged that out of sympathy towards the pitiable condition of the respondent he had extended further amount of Rs. 3 lakhs to her on 9.9.2009 which was duly acknowledged by her, she taking back the previous cheque dated 12.8.2009, issuing fresh cheque bearing No. 130329 dated 15.11.2009 for total sum of Rs. 5 lakhs, the said cheque, thus, being post-dated, in favour of the complainant, drawn against account of the respondent in Canara Bank, Patparganj, Delhi. It was alleged that the said cheque when presented again returned unpaid with reasons “insufficient funds” on 19.11.2009. The complaint alleged that on 2.12.2009, on the assurance of the respondent, the said cheque was again presented but it was again returned dishonoured on 5.12.2009. It is thereafter that the complainant addressed another legal notice dated 6.12.2009 sent, inter alia, by registered AD post on 8.12.2009 inspite of which the respondent did not make payment and thereby having committed offence under Section 138 of Negotiable Instruments Act.
5. The complainant led evidence on the strength of his affidavit (Ex.CW-1/A) and proved, amongst others, the cheque dated 15.11.2009 (Ex.CW-1/6) which wa
