[CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 1 of Pages 14 IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI Complaint No. 7012/10 Unique ID No. 02402R0751252008 PS. Preet Vihar Smt. [ENTITY], W/o Sh. [ENTITY], R/o H.No. D2, South Anarkali, Delhi51 Complainant. Versus Smt. [ENTITY], W/o Sh. [ENTITY], R/o B25, Meet Nagar, Shahdara, Delhi93 Accused. COMPLAINT U/[SECTION] OF THE [ACT] Offence complained of : U/[SECTION] [ACT] Date of commission of offence : 31.08.2008 Plea of Accused : Not guilty Complaint filed on : 30.09.2008 Final Arguments heard & Concluded on : 05.07.2013 Date of decision of the case : 17.07.2013 Final order : Acquittal [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 2 of Pages 14 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/[SECTION] [ACT] (as amended up to date) filed by the complainant Smt. [ENTITY], against the accused Ms. [ENTITY].
2. The prosecution story in brief necessary for the disposal of the present case are that, on 10.05.2008 the complainant and her husband had entered into an agreement to sell of a plot bearing no.51B, Radhey Puri, Khureji Khas, Delhi51 with the husband of the accused Mr. [ENTITY] through property dealers Mr. [ENTITY] and Mr. [ENTITY] for the total consideration of Rs. 32,00,000/. At the time of entering into the agreement a sum of Rs.4,00,000/ was given to the husband of the accused as earnest money. At the time of agreement it was also agreed between the husband of the complainant and husband of the accused that the documents shall be registered before the SR VIII Delhi by 15.07.2008. After some time of the execution of the agreement the accused and her husband told the complainant and her husband that they do not want to sell the said plot. Accordingly to return the earnest money of Rs.4,00,000/ which were taken by the husband of the accused at the time of agreement to sell, the husband of the accused had issued a cheque bearing no. 000044 dated 11.06.2008 of Rs.4,00,000/ to the complainant but on presentation the said cheque was returned back dishonored with the remark "Account Closed".
[CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 3 of Pages 14 Thereafter against the dishonor cheque of Rs.4,00,000/ the accused issued four cheques bearing no. 038049 dated 24.07.2008, bearing no. 038050 dated 25.07.2008, bearing no. 038051 dated 26.07.2008 & bearing no. 038060 dated 28.07.2008 each one of Rs.50,000/ all drawn on Union Bank of India, Nand Nagri branch. On the same day the accused has also paid a sum of Rs.1,75,000/ to the complainant. Out of these four cheques i.e. bearing no. 038050 & 038049 are the subject matter of the present case but on presentation the said cheques were returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memos dated 26.07.2008. Thereafter a legal notice was sent to the accused on 14.08.2008 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid the cheques amount to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 01.10.2008 for the offence U/[SECTION] [ACT]. On appearance of the accused notice U/[SECTION] [ACT] Dated 15.01.2011 was framed upon the accused to which she pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined herself as CW1 and reiterated the contents of the complaint on [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 4 of Pages 14 oath before this court and filed an affidavit in evidence. She also exhibited Agreement to sell dated 10.05.2008 as Ex. CW1/A, original cheques bearing No.038050 as Ex. CW1/B, bearing no. 038049 as Ex. CW1/C, the cheque returning memos are Ex. CW1/D & Ex. CW1/E respectively, the legal notice of demand dated 14.08.2008 as Ex. CW1/F, The original receipts of registered post is Ex. CW1/G & U.P.C. is Ex. CW1/H. The complainant examined her husband Mr. [ENTITY] as CW2. Thereafter, the complainant evidence was closed at request. Thereafter on the application of the complainant U/[SECTION] [ACT] Mr. [ENTITY], Deputy Manager Kotak Mahindra Bank was examined as CW3. He exhibited account opening form in respect of Account no. 01770120000014 as Ex. CW3/1 and copy of PAN card bearing no. AOKPK1334F as Ex. CW3/2.
5. On 12.09.2012 the statement of accused was recorded U/[SECTION] [ACT] in which all the incriminating evidence along with exhibited documents were put to the accused. In her statement accused stated that she has no knowledge regarding agreement to sell Ex. CW1/A. It is further submitted by her that neither she has issued the four cheques including cheques in question to the complainant nor made any payment of Rs.1,75,000/ in cash to the complainant. It is also submitted by her that one day some police officials had came to her house and taken away her husband in her absence, however she do not remember the date, month or year of the same. After returning home she came to [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 5 of Pages 14 know about the same from neighbors and thereafter she straight away went to the PS. G.T.B. where her husband was present in police custody. At police station some police officials had directed her to bring her cheque book from her house. Since she was threatened and under the undue pressure, she went to her house and brought her cheque book to the police station. Thereafter the police officials directed her to sign on four blank cheques, thereafter they snatched those four blank signed cheques from her and thereafter the police officials allowed her and her husband to leave the police station. At that time husband of the complainant Mr. [ENTITY] was also present at the police station. She do not remember name of any police officials who had threatened her and made her sign the four blank cheques. Thereafter the complainant has filed the present two cases on the basis of those four cheques only. Thereafter the case was fixed for Defence evidence. In her evidence accused reiterated the defence as told by her in her statement U/[SECTION] [ACT]. The accused examined her husband Mr. [ENTITY] as DW1 and herself as DW2. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
[CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 6 of Pages 14
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of [SECTION] of the [ACT] are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/[SECTION] [ACT].
8. Now let us deal with the each ingredient of the [SECTION] of [ACT] to see whether the case against the accused has been proved or not.
[CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 7 of Pages 14 WHETHER THE CHEQUES IN QUESTION HAVE BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
9. It is submitted by the CW1 that on 10.05.2008 the complainant and her husband had entered into an agreement to sell of a plot bearing no.51B, Radhey Puri, Khureji Khas, Delhi51 with the husband of the accused Mr. [ENTITY] through property dealers Mr. [ENTITY] and Mr. [ENTITY] for the total consideration of Rs.32,00,000/ and at the time of entering into the agreement a sum of Rs.4,00,000/ was given to the husband of the accused as earnest money. At the time of agreement it was also agreed between the husband of the complainant and husband of the accused that the documents shall be registered before the SRVIII Delhi by 15.07.2008. After some time of the execution of the agreement the accused and her husband told the complainant and her husband that they do not want to sell the said plot. Accordingly to return the earnest money of Rs.4,00,000/ which were taken by the husband of the accused at the time of agreement to sell, the husband of the accused had issued a cheque bearing no. 000044 dated 11.06.2008 of Rs.4,00,000/ to the complainant but on presentation the said cheque was returned back dishonored with the remark "Account Closed". Thereafter against the dishonor cheque of Rs.4,00,000/ the accused issued four cheques bearing no. 038049 dated 24.07.2008, bearing no. 038050 dated 25.07.2008, bearing no. 038051 dated 26.07.2008 & bearing no.
[CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 8 of Pages 14 038060 dated 28.07.2008 each one of Rs.50,000/ and all are drawn on Union Bank of India, Nand Nagri branch. On the same day the accused has also paid a sum of Rs.1,75,000/ to the complainant. Out of these four cheques i.e. bearing no. 038050 & 038049 are the subject matter of the present case. Admittedly the cheques in question are bearing the name of the complainant as payee and signature on the cheques are admitted by the accused to be her own, thus prima facie it appears that the cheques in question were issued in favour of the complainant.
10. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/[SECTION] [ACT] that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
11. Further [SECTION] of the [ACT] provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the [SECTION] for the discharge in whole or in part of his debt or liability.
12. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by [SECTION] and [SECTION] of [ACT].
13. Therefore after the prima facie establishment of the fact [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 9 of Pages 14 that the cheques were issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under [SECTION] & [SECTION] of the [ACT] can be rebutted only by cogent evidence. Such cogent evidence can be adduced from the cross examination of the complainant. In [PRECEDENT] it was held by Hon'ble Supreme Court that:
To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
14. In the present matter the following circumstances shows that the defence of the accused that she is not liable to pay anything to the complainant and the cheques were taken from [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 10 of Pages 14 her by putting her in coercion and pressure is true one:
i) The complainant has herself submitted in her statement that the cheques in question were handedover to her husband in the police station and not to her. It is also submitted by her that name of the payee was blanked when the cheques were handedover. It is further submitted by her that name of the payee on the cheques in question were filled up by her husband.
This fact clearly suggest that accused has not issued the cheques in favour of the complainant, as neither she written the name of the complainant as payee nor she handedover the cheques to the complainant. Further, it is not submitted by any of the complainant witness that accused has given any instructions to anyone to fill up the name of the complainant as payee on the cheques in question.
ii) It is not submitted by the complainant in her examination in chief that who had given the sum of Rs. 4,00,000/ to the husband of the accused as earnest money. It is submitted by CW2 husband of the complainant that he had given the sum of Rs.4,00,000/ to the husband of the accused. From this fact it appears that husband of the accused might be liable to repay the sum of Rs.4,00,000/ to the husband of the complainant. However, from these fact it can not be gathered that accused was liable to pay any amount to the complainant.
iii) It is submitted by the accused that she had given the cheques in police station under the threat and coercion employed by the police officials. On the other hand it is submitted by the [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 11 of Pages 14 complainant that though the cheques were given to her husband in police station but no threat was extended to the accused for issuing the cheques in question. The complainant failed to bring on record any complaint made by her or her husband to the police in respect of which the police officials had called the accused or her husband to the police station which clearly show that police officials had called them without any proper complaint made to police. This fact in itself shows a malafide as police officials does not have any power to call any person to police station without a proper complaint against that person is under investigation or inquiry. From these facts there appear reasonable doubt that the cheques in question might be handedover by the accused to the husband of the complainant under threat and without there being any existing liability on her.
iv) The complainant has herself accepted in her cross examination that she did not go to the police station and she was not told by the police officials to settle the matter. This clearly suggest that no settlement at all has been reached between the complainant and the accused.
v) The complainant has deposed in her cross examination that "It is correct that said cheques have been issued to my husband by the accused persons. It is further correct that since the cheques have been issued to my husband, my husband was entitled to recover the amount for which the cheques in question were issued". It is further submitted by her [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 12 of Pages 14 that "It is correct that accused is liable to pay the amount if any to my husband". These statements clearly proves that complainant is not claiming that accused is liable to pay in respect of the cheques in question to her. Thus it is established that the accused has not issued the cheques in favour of the complainant to discharge any existing debt or liability.
vi) In the decision reported as [PRECEDENT]., it was observed as under: "52. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of [SECTION] of the Act.
It has also been held by Hon'ble High Court of Delhi in [PRECEDENT] that:
9.Plain reading of the above provision of law shows that criminal liability under [SECTION] [ACT] is attracted only if the dishonored cheque was issued for the discharge in whole or in part of any existing debt or liability. The Section does not apply to a cheque issued to meet future liability which may arise on happening of some contingency. Thus, it is clear that a postdated cheque, if issued for discharge of a debt due, in the event [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 13 of Pages 14 of dishonor, would attract [SECTION] if the [ACT] but a cheque issued not for an existing debt / liability but issued by way of security for meeting some future contingency would not attract [SECTION] of the [ACT].
15. Thus the defence of the accused that the cheques in question were given under threat and not towards discharge of any liability towards the complainant appears to be probable. It is established principle of law that the accused has only to create a doubt in the version of the complainant, while as the complainant has to prove the guilt of the accused beyond reasonable doubt.
16. Thus from the above stated discussion it is clear that the accused has been able to prove her defence. She has rebutted the presumptions U/[SECTION] and [SECTION] of [ACT]. Considering the entire circumstances and evidence on record, it stands duly proved that the cheques in question which are CW1/B & Ex. CW1/C were not issued and drawn in discharge of liability or a legally recoverable debt of the accused.
Thus on this ground alone the accused deserves acquittal and it would not be fruitful to discuss other aspects of [SECTION] [ACT].
17. In view of the aforesaid discussion, I am of the considered opinion that accused has been able to prove a probable defence. [CASE NUMBER] MAMTA [ENTITY] Vs. [ENTITY] page no. 14 of Pages 14 Accordingly, accused Smt. [ENTITY], W/o Sh. [ENTITY], R/o B25, Meet Nagar, Shahdara, Delhi93 stands acquitted of the offence U/[SECTION] [ACT] in respect of the cheques bearing no. 038050 & 038049.
Announced in the open court today i.e. 17.07.2013 ([ENTITY]) [CASE NUMBER] Containing 14 pages all signed by the presiding officer.
([ENTITY]) [CASE NUMBER]