Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 863

IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
Smt. Uma Devi – Appellant
Versus
Smt. Shashi Bala – Respondent
Cr.REV.P. 702 of 2018
Decided On : 20-03-2023

Advocates appeared:
Mr. D.B. Yadav, Advocate, for the Petitioner alongwith petitioner in person.
Mr. Rohit Boora, Ms. Swati Rathi and Mr. Vishal Nehra, Advocates, for the Respondent.

The main legal point established in the judgment is the importance of the presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to rebut this presumption by raising a probable defense.

Headnote:
Negotiable Instruments Act - Dishonour of Cheque - Section 138 - 138 of Negotiable Instruments Act, 1881 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881, which deals with the dishonour of cheques for insufficiency of funds in the account. The court also referred to Section 118(a) and Section 139 of the Act, which establish presumptions related to consideration and in favor of the holder of the cheque. The court highlighted the legal principles established in the cases of K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr., Rangappa v. Sri Mohan, and Basalingappa v. Mudibasappa, which clarified the presumptions and the burden of proof in cases of dishonoured cheques.
Fact of the Case:

The petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881 for issuing two cheques in discharge of a loan liability, which were subsequently dishonoured. The petitioner denied borrowing any amount and claimed that the cheques were stolen by the complainant. The complainant alleged that the petitioner and her husband had obtained a loan and issued the cheques in question as repayment.
Finding of the Court:

The court found that the petitioner failed to rebut the presumption under Section 139 of the Negotiable Instruments Act, as the signatures on the cheques were admitted, and the dishonourment of the cheques was not disputed. The court also rejected the petitioner's defense regarding the alleged theft of cheques by the complainant, citing inconsistencies in the petitioner's statements and lack of evidence supporting the theft claim.
Issues: The issues revolved around the validity of the loan agreement, the alleged theft of cheques, and the petitioner's ability to rebut the presumption under Section 139 of the Negotiable Instruments Act.
Ratio Decidendi: The court held that the petitioner's defense and evidence were insufficient to rebut the presumption in favor of the complainant under Section 139 of the Negotiable Instruments Act. The court also emphasized the importance of considering the preponderance of probabilities in rebutting the presumption.
Final Decision: The court upheld the conviction and order on sentence passed by the lower courts, dismissing the petitioner's revision petition.

JUDGMENT

Swarana Kanta Sharma, J. The present criminal revision petition has been filed by the petitioner under Sections 397 and 401 of the Code of Criminal Procedure, 1973 against the impugned judgment dated 08.08.2018 passed by learned Additional Sessions Judge, Rohini, Delhi, (hereinafter `learned ASJ') whereby Criminal Appeal No. 76/2018 filed by the petitioner was dismissed.

2. The petitioner vide judgment dated 25.09.2017 was convicted under Section 138 of Negotiable Instruments Act, 1881 by learned Metropolitan Magistrate-3, Rohini Courts, Delhi (hereinafter `learned MM') in Case No. 15/4R/16 titled `Shashi Bala vs. Uma Devi' and vide order on sentence dated 28.03.2018, was directed to pay compensation amounting to Rs.16 lakhs i.e. double the amount of cheques in question, and in default of same, to undergo simple imprisonment for four months.

3. To state briefly, the case of complainant was that the petitioner and her husband were inducted as tenants in the premises of the complainant, which they had taken on rent for residential purpose as well as for commercial purpose i.e. for running the business of manufacturing frames of goggles/spectacles. It was alleged that soon thereafter, the petitioner and her husband had approached the complainant for obtaining a friendly loan for the purpose of enhancing the business and considering the friendly terms and relations between the parties, the complainant had agreed to the demand of petitioner as petitioner had also assured the complainant to take her in the said business as one of the partners. It was alleged that on pretext of such false and mischievous promises, the petitioner and her husband were able to take a sum of Rs.4 lakhs from the complainant in the year 2002, and thereafter, Rs.1,75,000/-, Rs.1,00,000/-, Rs.50,000/- and Rs.25,000/- on other different occasions till November, 2004. It was also alleged that after taking the final amount of Rs.25,000/- in November 2004, the petitioner had promised the complainant to return the entire loan amount within a period of one month from the date of receiving the final amount. It was further the case of complainant that in discharge of the liability towards the complainant, the petitioner had issued two post-dated cheques i.e. cheque bearing number 265451, dated 27.12.2004 and cheque bearing number 265452, dated 03.01.2005, each for a sum of Rs.4 lakhs, drawn on Union Bank of India, Mangolpuri, Delhi-110083. The said cheques were presented by the complainant before her banker i.e. Canara Bank, Rohini, Sector-03, Delhi on 03.01.2005, but to the utter shock and surprise of the complainant,the said cheques were returned vide returning memo dated 05.01.2005 with the remarks `Funds Insufficient`. Thereafter, the statutory legal notice of demand was issued by the complainant on 14.01.2005, informing the petitioner regarding the dishonour of the cheques issued by her and demanding the amount in question within 15 days from the receipt of the notice. Subsequently, the petitioner had issued a reply to the legal notice dated 22.01.2005 by virtue of which she had denied to make any payment to the complainant. Thereafter, the present complaint under Section 138 of Negotiable Instruments Act, 1881was filed before the learned MM.

4. During the course of trial, the complainant got herself examined as CW-1 whereby she reiterated the contents of her complaint and also proved the following documents: (i) The cheque no.265451 Ex.CW-l/A, (ii) The cheque no.265452 Ex.CW-l/B, (iii) Debit advice receipt of Canara Bank Ex.CW-l/C, (iv) Return memo of the Union Bank of India Ex.CW-l/D, (v) Registered post receipt dated 14.01.2005 Ex.CW-l/E, (vi) UPC receipt Ex.CW-l/F, (vii) AD card Ex.CW-l/G, and (viii) Legal Demand Notice Ex.CW-l/H.

5. Statement of the petitioner was recorded under Section 313 of Cr.P.C. whereby she denied having borrowed any amount from the complainant and stated that the cheques in question had been stolen by the complainant whe