Delhi District Court
Savita Gupta vs Arti Kakkar on 4 March, 2025
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
IN THE COURT OF MS. POOJA KUMARI, JMFC (NI ACT),
DIGITAL COURT-02, SOUTH, SAKET COURTS, DELHI
CC NI ACT NO.: 844/2022
CNR No. DLST02-002130-2022
CC NI ACT NO.: 874/2022
DLST02-002131-2022
CC NI ACT NO.: 881/2022
CNR No. DLST02-002129-2022
IN THE MATTER OF:
SAVITA GUPTA
W/o Sh. Naveen Bindal
R/o A-298, 2nd Floor, Shivalik, Malviya Nagar
New Delhi-110017
....Complainant
Versus
ARTI KAKKAR
Rivaaz Boutique
F-3, Kalkaji, Near Golchakkar
Delhi-110019.
.... Accused
POOJA
KUMARI
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KUMARI
JMFC (NI ACT) Digital Court-02 Date:
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18:43:40
+0100
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
Date of institution : 09.02.2022
Summoned on : 23.04.2022 (In CC NI Act No.:844/2022)
&
25.03.2022 (In CC NI Act No.: 874/2022
& CC NI Act No.: 881/2022)
Offence Charged : U/s 138 of Negotiable Instrument Act,
with 1881
Notice u/s 251 of : 25.07.2022
CrPC
Plea of accused : Pleaded not guilty
Date of judgment : 04.03.2025
Final order : Acquittal
JUDGMENT
1. The abovementioned three (3) cases are connected matters and
have arisen out of same nature of transactions, between same
parties for an offence under Section 138 Negotiable instrument
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KUMARI
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JMFC (NI ACT) Digital Court-02
Date: 2025.03.04
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CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
Act, 1881 ((hereinafter referred as NI Act). Therefore, this
court will decide the all above-mentioned three (3) cases
against above-mentioned accused vide this judgment.
Complainant Case in brief:
2. Complainant and accused are known to each other and was
having a friendly relation with each other. Accused was taking
financial assistance from complainant and some of the amounts
were duly returned to complainant which inculcate faith in the
complainant. Therefore, complainant extended financial help
to accused for Rs. 30 Lakhs from time to time i.e. from 2015
to 2019. After repeated requests and persuasions, in order to
repay the debt, accused issued cheques bearing no. 00004 dated
25.11.2021 for Rs. 5,00,000/-, Cheque bearing no. 00005 dated
30.11.2021 for Rs. 5,00,000/-, Cheque bearing no. 00006 dated
06.12.2021 for Rs. 4,00,000/- & Cheque bearing no. 00007
dated 10.12.2021 for Rs. 4,00,000/- (In CC NI Act NO.
844/2022), Cheque bearing no. 890833 dated 30.11.2021 for
Rs. 5,00,000/- (In CC NI Act NO. 881/2022) and Cheque
bearing no. 000022 dated 30.11.2021 for Rs. 3,50,000/-/- (In
CC NI Act NO. 874/2022) (hereinafter referred as cheques in
POOJA
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Date: 2025.03.04
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SAVITA GUPTA Vs. ARTI KAKKAR
question).
3. The complainant presented the above-mentioned cheques in
question in her bank, which got dishonoured vide return
memos dated 24.12.2021 and 05.01.2022. Therefore,
complainant sent a legal demand notice dated 10.01.2022,
through speed post and e-mail, calling upon accused to pay the
amount of cheque in question, which was duly served to
accused. Since, the accused failed to pay the amount of the
cheques in question within 15 days of receiving of legal
demand notice, the complainant filed the present complaints
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the “NI Act“).
4. Upon prima facie consideration of the pre-summoning
evidence, the accused was summoned vide order dated
23.04.2022 (In CC NI Act No.:844/2022) & 25.03.2022 (In CC
NI Act No.: 874/2022 & CC NI Act No.: 881/2022).
5. Accused appeared and accusations under Section 251 of
Cr.P.C. was explained to her in vernacular language on
25.07.2022. Accused pleaded not guilty and claimed trial. At
this stage, Accused admitted being the drawer of the cheques
in question and signatures therein. Accused has stated her plea
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Date: 2025.03.04
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SAVITA GUPTA Vs. ARTI KAKKAR
of defence as follows:
“I have understood the notice put forward to me and I
plead not guilty and claim trial. I admit the amount
mentioned and signatures on all the cheques in question
but the date and payee name was not filled in by me. I
know the complainant and she used to visit my shop
frequently. I have a boutique and the complainant has a
jewellery business. We have done several exhibitions
together as well. In 2018-19, i used to keep certain
signed cheques with amount filled in for the purpose of
making payment of a flat in Gaur city. The complainant
used to visit my boutique frequently and spend a lot of
time there. Some of her jewellery used to get sold
through my boutique for which i have maintained a
record and i used to give the cost price of the jewellery
to her as agreed before by the complainant herself. I had
no transaction with the complainant in 2020- 21. i did
receive the legal demand notice from the complainant,
however the complainant had also sent me another legal
demand notice which had completely different details. I
will produce copy of that notice at the time of my
evidence. I do not know how my cheques landed in the
possession of the complainant but i believe she may have
taken them from my boutique as i was not visiting my
boutique regularly due to my poor health around May-
June, 2019. I only have a liability of approximately Rs.
50,000/- to the complainant regarding some of her
jewellery which was sold from my boutique. I am willing
to pay her that amount if she comes to settle the account
for the same.”
Complainant Evidence:
6. In the Post-summoning evidence, complainant namely Savita
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JMFC (NI ACT) Digital Court-02 Date:
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CC NI ACT NO.: 874/2022
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SAVITA GUPTA Vs. ARTI KAKKARGupta was examined on affidavit being Ex.CW1/A.
Complainant has tendered evidence by way of affidavit of
evidence, documents exhibited and reiterated the facts as stated
in her complaint.
7. Complainant was examined and duly cross examined by the ld.
counsel for accused and complainant evidence was closed vide
separate statement dated 14.08.2023.
Thereafter, Complainant filed an application u/s 311 of CrPC
on 02.09.2023 for adducing additional documental evidence
and electronical evidence, which was allowed vide order dated
05.10.2023. Complainant got exhibited the additional
document as Ex. CW-1/5 (colly.) in CC NI Act No. 874/2022
CC NI Act No. 881/2022 and Ex. CW-1/11 (colly.) in CC NI
Act No. 844/2022 and further cross-examined on 30.11.2023,
09.12.2023 & 03.02.2024. After that, the complainant evidence
was closed on 03.02.2024.
8. Complainant has relied on following documents to prove case:
Documents lead as evidence in CC NI Act No. 844 /2022
Sr. Documents Exhibits
No.
1. Cheque bearing no. 00004 dated Ex. CW-1/1
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SAVITA GUPTA Vs. ARTI KAKKAR25.11.2021 for Rs. 5,00,000/- drawn
on Bandhan Bank, Greater kailash,
Delhi-48
2. Cheque bearing no. 00005 dated Ex. CW-1/2
30.11.2021 for Rs. 5,00,000/- drawn
on Bandhan Bank, Greater kailash,
Delhi-48
3. Cheque bearing no. 00006 dated Ex. CW-1/3
06.12.2021 for Rs. 4,00,000/- drawn
on Bandhan Bank , Greater kailash,
Delhi-48
4. Cheque bearing no. 00007 dated Ex. CW-1/4
10.12.2021 for Rs. 4,00,000/- drawn
on Bandhan Bank , Greater kailash,
Delhi-48
5. Cheque return memo dated Ex. CW-1/5
24.12.2021 with respect to Cheque no.
000004.
6. Cheque return memo dated Ex. CW-1/6
24.12.2021 with respect to Cheque no.
000005.
7. Cheque return memo dated Ex. CW-1/7
24.12.2021 with respect to Cheque no.
000006.
8. Cheque return memo dated Ex. CW-1/8
24.12.2021 with respect to Cheque no.
000007.
9. Legal demand notice dated Ex. CW-1/9
10.01.2022.
10. Speed post alongwith tracking report, Ex. CW-1/10
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JMFC (NI ACT) Digital Court-02
(South)/Saket Courts, New Delhi
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SAVITA GUPTA Vs. ARTI KAKKAR
print out of WhatsApp service proof (colly)
and email service proof .
11. Hand-written documents, Ex. CW-1/11
receipts/parchi, bank statement, (colly)
screen-shots of whatsapp chats, audio
clip in pendrive and certificate u/s 65
B of IEA
Documents lead as evidence in CC NI Act No. 874/2022
Sr. Documents Exhibits
No.
1. Cheque bearing no. 890833 dated Ex. CW-1/1
30.11.2021 for Rs. 5,00,000/- drawn on
Yes Bank, Greater Kailash-II, Delhi-48
2. Cheque return memo dated 05.01.2022 Ex. CW-1/2
with respect to Cheque no. 890833
3. Legal demand notice dated 10.01.2022. Ex. CW-1/3
4. Speed post alongwith tracking report, Ex. CW-1/4
print out of WhatsApp service proof and (colly)
email service proof .
5. Hand-written documents, receipts/parchi, Ex. CW-1/5
bank statement, screen-shots of whatsapp (colly)
chats, audio clip in pendrive and
certificate u/s 65 B of IEA
Documents lead as evidence in CC NI Act No. 881/2022
Sr. Documents Exhibits
No.
POOJA
KUMARI
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JMFC (NI ACT) Digital Court-02 KUMARI
(South)/Saket Courts, New Delhi Date: 2025.03.04
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SAVITA GUPTA Vs. ARTI KAKKAR
1. Cheque bearing no. 000022 dated Ex. CW-1/1
30.11.2021 for Rs. 3,50,000/- drawn
on Yes Bank, Kotak Mahindra Bank,
South Extn. Part-II, Delhi-49.
2. Cheque return memo dated Ex. CW-1/2
24.12.2021 with respect to Cheque no.
000022
3. Legal demand notice dated Ex. CW-1/3
10.01.2022.
4. Speed post alongwith tracking report, Ex. CW-1/4
print out of WhatsApp service proof (colly)
and email service proof.
5. Hand-written documents, Ex. CW-1/5
receipts/parchi, bank statement, (colly)
screen-shots of whatsapp chats, audio
clip in pendrive and certificate u/s 65
B of IEA
9. After conclusion of complainant evidence, Statement of
accused under Section 313 read with Section 281 Cr.P.C was
recorded on 23.02.2024, whereby the entire incriminating
evidences were put to accused. At this stage, the accused
reiterated her plea of defence recorded during the framing of
notice u/s 251 of CrPC and additionally stated that she does not
know about the transaction mentioned in Ex. CW-1/10 (colly)
and she stated these documents as incorrect. She further stated
that she had not received any payment as alleged by the
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KUMARI
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SAVITA GUPTA Vs. ARTI KAKKAR
complainant. She accepted the WhatsApp chats from
24.02.2020 to 09.10.2021 and submitted that the chats for
which payments were discussed are regarding the jewelry
business transactions.
Defence Evidence
10. At this stage, accused examined and cross-examined herself on
oath as DW-1 on 02.07.2024 & 17.09.2024. Accused also
examined Bank witness as DW-2 on 30.11.2024 & 11.12.2024
to substantiate her plea of defence. Accused placed and relied
on following documents to prove plea of defence.
S.No. Name of Document Dated Exhibit
1. Copy of agreement for 23.06.2018 Ex. DW-1/1
sell between accused and
(OSR)
M/s Gaursons Hi-Tech
Infrastructures Pvt. Ltd.
2. Copy of Register – Ex. DW-1/2
maintained by accused
(OSR)(colly.)
3. Statement of Account of – Ex. DW-2/A
accused
4. Images of cheques – Ex. DW-2/B
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KUMARI
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SAVITA GUPTA Vs. ARTI KAKKAR
through which accused
made payment to M/s
Gaursons Hi-Tech
Infrastructures Pvt. Ltd
5. Authority letter by bank – Ex. DW-2/C
to witness appeared on
behalf of bank
11. Further, DE was closed vide separate statement dated
08.01.2025. Thereafter, case was fixed for final arguments.
12. Final arguments were advanced by both the parties and heard.
Submissions by Ld. Counsel for Complainant
13. Ld. Counsel for the complainant submitted that the accused has
already admitted her signature over the cheques in question
hence presumption of the cheques in question having been
issued in discharge of debt or other liability arises in favour of
the complainant in terms of Section 118(a) read with Section
139 of NI Act. He further argued that the accused has also
admitted the genuineness and correctness of the cheques in
question, return memos, legal demand notice, speed post
receipt and delivery report. Ld. Counsel of complainant further
argued that the complainant received no payment within 15
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SAVITA GUPTA Vs. ARTI KAKKAR
days of the service of the legal demand notice coupled with the
admission of the accused, duly proves all the ingredients of the
offence under Section 138 NI Act. Ld. Counsel for the
complainant submitted that the mandatory presumption under
Section 139 of the NI Act cannot be rebutted on a bare denial
but only when cogent evidence is led by the accused which has
not been led in the instant case. Ld. Counsel for complainant
has further submitted that complainant has placed WhatsApp
chats and audio clips, wherein accused had admitted her
liability towards the complainant and also documents,
receipt/parchi of jeweler and account statement to show the
financial capacity of complainant for the advancement of
financial assistance to accused. Thus, submitted that since all
the ingredients laid down under Section 138 NI Act are
fulfilled and accused has failed to rebut the presumption,
therefore, the accused is liable to be convicted.
Ld. Counsel for complainant has referred following rulings to
counter the arguments of Ld. counsel for accused and
substantiate claims of complainant:
A) Hiten P.Dalal Vs. Bratindranath Banerjee (2001) 6
SCC 16
B) Basalingappa vs Mudibasappa 2019 (5) SCC 418C) Rangappa Vs Mohan ((2010) 11 SCC 441)
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JMFC (NI ACT) Digital Court-02 Date: 2025.03.04
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SAVITA GUPTA Vs. ARTI KAKKARD) Tedhi Singh vs Narayan Dass Mahant {CRIMINAL
APPEAL NO.362 OF 2022 (Arising out of SLP (Crl)
No.1963 OF 2019)}Submissions by Ld. Counsel for Accused
14. Per contra, Ld. Counsel for accused has submitted that
complainant has failed to substantiate her claims of
advancement of loan to accused in cash between 2015 to 2018.
Ld. Counsel highlighted that complainant has not mentioned
the details regarding the dates, purpose, or circumstances under
which the alleged loans were advanced as well as has also not
filed any documentary evidence to prove the advancement of
loan. Ld. Counsel argued that these facts cast serious doubts
about the existence of the alleged transactions in absence of
such crucial particulars, and strongly suggest that no such loans
were advanced to accused as claimed by the complainant.
15. Ld. Counsel submitted that accused has admitted that there was
business transaction between the parties and an amount of
Rs.50,000/- was due and the same has been substantiated by
the WhatsApp chats produced by the complainant herself. Ld.
counsel pointed to page No. 33 and 42 of the WhatsApp chats,
wherein an admission that the outstanding balance was only
₹33,500/- as on 24th of April 2019. Ld. counsel argued that this
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SAVITA GUPTA Vs. ARTI KAKKARcrucial piece of evidence, originating from the complainant,
directly contradicts complainant allegations and confirmed the
accused statement made at the time of framing of notice under
section 251 of the CrPC.
16. It is argued on behalf of accused that accused has categorically
denied the diaries entries, asserting that they are forged and
were created after complainant’s cross-examination, as all
entries appeared on the same page of the diary, despite being
purportedly from different years. Further submitted that the
entries in question are found on page 69 of the diary, whereas
details pertaining to them are written on pages 65 to 68. This is
inherently illogical, as transactions from year 2015, 2016, 2017
and 2018 are all recorded on the same page, without any
sequential order or prior endorsement by the accused. Ld.
Counsel argued that such an arrangement is impossible, as the
year 2015 should precede 2016, followed by subsequent years
and this anomaly clearly indicates that the diary was fabricated
by the complainant after her cross-examination, making it a
forged document created solely to bolster her case.
17. Ld. counsel for accused submitted that the account statement
relied upon by the complainant is an irrelevant, as it merely
reflects withdrawal of money without any evidence to establish
that the said amount was given to accused and complainant has
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not examined any witness in support of her case. Ld. counsel
also indicated towards income tax return of complainant,
which does not contain any entry corroborating the alleged
transaction. Ld. counsel further submitted that the certain slips
purportedly as receipts for the sale of ornaments exhibited by
complainant are not reliable for the reason that these do not
bear the name of jeweler, date or specific details regarding the
transactions and also highlighted that slip at page No. 12 bears
the date as “4 May 2022”, while several other slips merely
contain numerical figures without any relevant particulars.
18. Ld. counsel further argued that audio recordings have not been
admitted by the accused as there was no date or details given
in the transcript also more it appears to be edited and there is
no mention of amount as alleged in by the complainant. Further
submitted that audio recording is not admissible in evidence as
the same is not as per section 65 B of the Indian evidence act.
It is further submitted that in her statement under section 313
of CrPC as well as during framing of notice under section 251
of CrPC and during her depositions, accused has consistently
stated that the amounts written on the cheques were filled in by
her at the instance of her husband for the purpose of purchasing
a flat in Gaur city. However, during that time, a matrimonial
dispute arose between them and accused was not able to visit
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her shop due to her ill-health and subsequently husband of
accused passed away. Ld. counsel further argued that there
existed a business relationship between complainant and
accused and to substantiate her version accused has exhibited
the agreement to sale and shop register containing details of
transactions. Further submitted that accused has examined staff
from yes Bank to verify the transaction made with the builder
and husband of accused was responsible for handling the flat
agreement. The accused was not privy to the specific payment
arrangement and seemingly filled in the amounts on the
cheques as per the instruction of husband. Ld. counsel further
argued that it is evident from the cheques that name of the
complainant and the date were not filled in by the accused as
confirmed by the perusal of cheques, therefore accused
claimed that she was not involved in filling out the details of
the cheques. Finally, Ld. counsel for accused concluded his
argument and submitted that the lack financial capacity of
complainant, absence of documentary evidence to prove the
alleged loan, unreliability of documents that is diary entries,
account statement, WhatsApp chats, audio recording produced
by the complainant duly established plea of defence of accused.
Thus, ld. counsel for accused submitted that accused has
successfully rebutted the presumption lying against the
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cheques in question. Therefore, in the interest of justice and
equity, accused is liable to be acquitted.
Counter Submissions by Ld. counsel for complainant
19. Per contra, Ld. counsel for complainant has submitted that
complainant has discharged its initial burden and established
the ingredients of offence u/s 138 of NI act. The presumption
lies in favour of complainant which has not been rebutted by
accused either by leading cogent evidence or from the case set
out by complainant. It was further submitted that the mere
denial cannot be held sufficient to rebut the presumption under
section 139 of the NI act. Ld. counsel pointed out that the self-
harming suggestion regarding ITR was put to complainant,
which proves the advancement of loan. Further submitted that
complainant has duly stated the amount advanced to accused
by producing documents, account statement and jeweler
receipts and documentary evidence would prevail over the oral
evidence. Complainant has withstood during cross-
examination and there is no contradiction in her deposition. It
has been further submitted that jeweler receipts are duly proved
as no question regarding whether the gold was sold or not and
those were not of gold and silver. Further, complainant has duly
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explained why the receipts were not on letter head. It was
further submitted that no police complaint was made regarding
the stolen and misuse of cheques in question, neither payment
was stopped, therefore, accused version of defence is not
plausible. Ld. counsel further submitted that the bank witness
has not submitted the certificate u/s 65B of IEA, therefore the
photos of cheques are not admissible. On financial capacity,
Ld. counsel argued that complainant need not to show at first
instance that she has the capacity in 138 NI act cases. It is
further submitted that in audio clips and chats, accused has
duly accepted the debt and had undertaken to repay it on
several occasions. On point that loan being time-barred, Ld.
counsel argued that the same proves the loan advanced to
accused and the same is not applicable in 138 NI act cases.
Accused has failed to bring out any material contradiction in
the statement of the complainant and accused is making a false
claim to evade legal liability for the cheques in question. Thus,
Ld. counsel submitted that complainant has proved her case
beyond reasonable doubt against accused and accused is liable
to convicted in the present case.
20. Heard the submissions of the Ld. counsels of the both
parties and meticulously perused materials on record.
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CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
Findings:
21. Before delving into the facts of the present case, it is relevant
to discuss the law applicable to the present proceedings. To
bring home a liability under Section 138 of the NI Act,
following elements must spring out from the averments in the
complaint and the evidence adduced by the complainant, which
are:
“(a) The accused issued a cheque on an account maintained
by him with a bank.
(b) The said cheque has been issued in discharge, in whole or
in part, of any legal debt or other liability, which is legally
enforceable.
(c) The said cheque has been presented to the bank within a
period of three months from the date of cheque or within the
period of its validity.
(d) The aforesaid cheque, when presented for encashment,
was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand
to the drawer 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 aforesaid legal notice of
demand.”
22. Once the other ingredients mentioned in the foregoing
paragraph are established by the complainant, then as soon as
Page 19 of 30 POOJA
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JMFC (NI ACT) Digital Court-02 Digitally signed
by POOJA
(South)/Saket Courts, New Delhi KUMARI
Date:
2025.03.04
18:44:34
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CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKARthe execution of cheque in question is admitted by the accused,
a factual base is established to invoke the presumption of
cheque having been issued in discharge, in whole or in part, of
any debt or other liability by virtue of Section 118(a) read with
Section 139 of NI Act. This is a reverse onus clause, which
means that unless the contrary is proved, it shall be presumed
that the cheque in question was drawn by the accused for a
consideration and that the complainant had received it in
discharge of a debt/ liability from the accused. In the case titled
Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held
by Hon’ble Supreme Court of India that once the accused has
admitted the signatures on the cheque in question, then the
court is bound to raise presumption under Section 139 NI Act.
23. In the present case, in order to discharge initial burden to prove
the above-mentioned ingredients, complainant relied upon her
own evidence affidavit marked as Ex. CW1/A and placed on
record several documents being Ex. CW-1/1 to Ex. CW-1/11
(colly.).
24. In the case at hand, since the complainant who deposed as CW-
1 has discharged initial burden on the basis of the documents
mentioned hereinbefore and the admission of signatures of the
accused, all the other ingredients of the offence under Section
POOJA
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POOJA KUMARI
Date: 2025.03.04
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JMFC (NI ACT) Digital Court-02
(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
138 of the NI Act stand successfully established. Further, since
the accused has admitted signatures on the cheques in question
and the fact of issuance of the same from her account, thus, the
presumptions under Sections 118(a) and 139 of the NI Act arise
against the accused with respect to the existence of legally
enforceable debt/liability in favour of the complainant. The
onus is now upon the accused to rebut the mandatory
presumptions under the NI Act by raising a probable defence
to show that the cheques in question were not issued in
discharge of a debt/ liability.
25. Upon perusal of the record and hearing the parties at length,
apropos the defence of the accused, the question which need to
be decided is as follows:
Whether the accused has able to rebut the presumption
lying against her for the cheques in question?
26. Complainant has placed on record cheques in question bearing
signatures of accused, return memos of those cheques in
question, legal demand notice, hand-written documents to
show the transactions alongwith receipts/parchi for selling of
gold and silver jewelry, WhatsApp chats & Audio recordings
and bank statement to establish her case. On the other hand, to
substantiate plea of defence accused has appeared in witness POOJA
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JMFC (NI ACT) Digital Court-02
(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
box and placed on record agreement for sell of M/s Gaursons
Hi-tech Infrastructures Private Limited and register depicting
receiving of payment by complainant and business transaction
between accused and complainant. Accused has also examined
bank witness and placed on record the account statement to
show that the payment to M/s Gaursons Hi-tech Infrastructures
Private Limited was done through cheques.
Now, by perusing of the handwritten documents i.e., Ex. CW-
1/5 (colly.) page no.- 4 to 6, it is evident that there is no
receiving of accused to prove the fact that accused has received
such amount on such dates. Also, it is apparent that these pages
are in running number. Therefore, these documents cannot be
considered as evidence for advancement of loan to accused.
Further, the receipts/parchi on record i.e., Ex. CW-1/5 (colly.)
page no.- 8 to 18 neither bears signature nor any stamp. These
receipts/parchi appears to be simply calculations. There is no
date on receipts/parchi except at page no. 12, in which date is
mentioned as 4 May 2022. Therefore, these receipts/parchi also
cannot be relied upon as a proof of selling of jewelry at the
relevant period of time. Further, the account statement of
complainant i.e., Ex. CW-1/5 (colly.) page no.- 19 to 28
mentions the amount of withdrawal as Rs. 100000/- on 14th
May 2015, ₹ 50000 on 6th of June 2016, ₹ 50000 4th of March
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JMFC (NI ACT) Digital Court-02 Date: 2025.03.04
(South)/Saket Courts, New Delhi 18:44:42 +0100
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
2017, Rs. 100000/- on 11th of April 2018 and so on. The
account statements only depict ₹ 50,000 to ₹1,00,000 as
withdrawal amount in a year whereas the alleged claim of
advancement of loan by complainant is much higher than that.
Now, complainant during cross-examination dated 14.08.2023
has deposed as follows:
“I am earning monthly ₹ 60,000/- (vol. loan was
advanced to the accused after selling my jewelry and
after withdrawal from my bank account), my household
expenses of per month are Rs.60,000/-. It is correct that
fact of selling my jewelry and withdrawal is not
mentioned in my complaint, evidence affidavit and legal
demand notice……………………. I have business
transaction with accused since 2015. The cheques in
question were given to me by the accused during
Navratra in the month of October 2021 against the
aforesaid transactions.”
Complainant has categorically admitted that she is earning Rs.
60,000/- per month and her expenditure is also ₹ 60,000/-per
month. Complainant has mentioned in his complaint that she is
known to accused since last 9 years that is around since 2014
to 15. It is quite astonishing that someone will advance money
such a huge amount of money to somebody without any
paperwork. It is also quite unbelievable that a person will keep
advancing loan continuously to someone every year without
receiving the previous paid due amount. It is also admitted fact
POOJA
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Date:
JMFC (NI ACT) Digital Court-02 2025.03.04
18:44:44
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(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKARthat complainant and accused are known to each other since
around 2014 to 15 only, now a reasonable doubt appears in
mind is that in such short span of time, complainant had so
much trust that she advanced this huge amount without any
paperwork. Complainant has also not mentioned the reason for
which she has advanced loan to accused sans paperwork. It is
also hard to believe that a person will sell out his/her jewelry
to advance loan without knowing the reason of loan and that is
also not once but multiple times. During cross-examination
dated 03.02.2024, the complainant had an opportunity explain
the purpose for alleged loan extended to accused, but she
simply replied that it is matter of record. It is also quite unusual
that a person will issue cheques of three different banks, after
so many years of loan i.e., also with intention to get it dishonor.
In the present case neither any security was taken nor any
paperwork had been done by the lender, therefore it is hard to
believe that a borrower will issue the cheques, if that person
had no intention to pay back the loan.
Now, the WhatsApp audio clips cannot be relied upon for the
reason that the certificate u/s 65 B of evidence act is not as per
the law. The same does not bears the description of computer
from where it was downloaded, serial number of computer, the
mobile number of parties, the hash-value of the audio etc. as
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JMFC (NI ACT) Digital Court-02 KUMARI Date:
(South)/Saket Courts, New Delhi 2025.03.04
18:44:47
+0100
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKARmandated by Section 65B (2) & (4) of Indian Evidence Act.
(support is drawn from the judgment of Hon’ble Supreme
Court in “Arjun Panditrao Khotkar vs Kailash Kushanrao
GorantyalAIR {2020 SUPREME COURT 4908}”).
It is also seen that in pen drive, the audio clips are of one person
only whereas the transcript contains the conversation of two
persons. Sans the certificate u/s 65 B of evidence act as per the
mandate of law and denial of accused, the WhatsApp audio clip
cannot be read into evidence.
Further, the whatsApp chats nowhere mention about the
alleged loan transaction between complainant and accused.
This court has gone through whole chats and have observed at
page 42 of said whatsApp chats that it mentions only 33,500/-
as balance. It is also observed that at page no. 70 of said
whatsApp chat there are some cheque related conversations in
January 2020, however the complainant has deposed in her
cross-examination dated 14.08.2023 that she received the
cheques in question in the month of October 2021. Thus,
whatsApp chats have not revealed any material thing to
establish the case complainant.
Now, to rebut the presumption and to substantiate plea of
defence, accused has appeared in witness box and deposed that
she has not taken any loan from the complainant and neither
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(South)/Saket Courts, New Delhi Date: 2025.03.04
18:44:50 +0100
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
handed over the cheques in question to complainant. Accused
brought on record agreement for sale dated 23rd of June 2018
i.e., Ex. DW-1/1 (OSR) and exhibited two pages of register
wherein transaction between complainant and accused was
recorded i.e., Ex. DW-1/2 (OSR). It is interesting to observe
that the register bears the receiving of complainant wherein she
has received payment from accused and same was not disputed
by the complainant by putting question regarding the receiving,
however there is no documentary proof to prove the fact of
advancement of loan that is also multiple times. This fact
further creates doubt in the mind that accused is taking
receiving for the payments of ₹33,700/- on her register, on the
other hand complainant has not taken any receiving from the
accused for such amount of alleged loan. Further, accused has
deposed that these whatsApp chats and payment regarding
conversations are for business transaction between them and
denied that alleged loan.
Accused has also examined bank witness DW-2 to show the
payment to M/s Gaursons Hi-tech Infrastructures Private
Limited was done through cheques and said witness brought
on record account statement of accused and images of cheques
which were presented for the payment to M/s Gaursons Hi-tech
Infrastructures Private Limited i.e., Ex. DW-2/B.
POOJA
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Date:
JMFC (NI ACT) Digital Court-02 2025.03.04
18:44:52 +0100
(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKARTherefore, considering the overall facts in entirety, court is of
view that accused has successfully casted serious doubt in the
case of complainant and thereby successfully rebutted the
presumption lying against the cheque in question.
The Hon’ble Supreme Court in a ruling titled as “Hiten P.Dalal
Vs. Bratindranath Banerjee (2001) 6 SCC 16″, has held as
under :-
Presumptions are rules of evidence and do not conflict
with the presumption of innocence, because by the latter
all that is meant is that the prosecution is obliged to
prove the case against the accused beyond reasonable
doubt. The obligation on the prosecution may be
discharged with the help of presumptions of law or fact
unless the accused adduces evidence showing the
reasonable possibility of the non-existence of the
presumed fact.”
Hon’ble Apex court in another case titled as Krishna
Janardhan Bhatt Vs. Dattatraya G.Hegde (2008) 4 SCC 54
has observed;
“Furthermore, whereas prosecution must prove the guilt
of an accused beyond all reasonable doubt, the standard
of proof so as to prove a defence on the part of an
accused is ‘preponderance of probabilities’. Inference ofPOOJA
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JMFC (NI ACT) Digital Court-02 Date: 2025.03.04
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(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKARpreponderance of probabilities can be drawn not only
from the materials brought on record by the parties but
also by reference to the circumstances upon which he
relies.”
Succinctly, accused has raised questions regarding the
capacity of complainant to advance such a huge amount to her,
complainant has failed to bring on record reliable material on
record for alleged factum of advancement of loan to accused,
accused has duly proved the access of complainant to her shop
and accused has duly explained every question put to her
regarding the payments to M/s Gaursons Hi-tech
Infrastructures Private Limited in her cross-examination and
why the cheques in question were lying in her shop.
Resultantly, these cumulative facts completely shaken the
credibility of the case set by the complainant from the root.
In light of these discussions and principles laid down in above-
mentioned rulings, accused has positively rebutted the
presumption lying against her for the cheques in question.
27. In view of the foregoing discussion, this court has no hesitation
to hold that the liability of the accused for the cheques in
question is not established. Hence, this court has arrived at a
conclusion that the accused has successfully rebutted the
mandatory presumption resting against her. Complainant on
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Date: 2025.03.04
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(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
the other hand has failed to prove her case beyond reasonable
doubt qua the existence of liability of the accused cumulatively
for all cheques.
28. It is imperative to understand that in order to pronounce a
conviction in a criminal case, the accused ‘must be’ guilty and
not merely ‘may be’ guilty. For an accused to be guilty, guilt
should not be based on mere surmises and conjectures but it
should be based on cogent evidence. In the present case, the
accused has clearly presented a defence that is more probable
than the complainant’s case, on the other hand, complainant
has failed to prove the alleged loans which she claims to have
advanced to accused.
Since, the complainant has failed to prove her case beyond
reasonable doubt qua the liability of the accused on the date of
the presentation of the cheques in question being equal to the
total amount of cheques, this court has arrived at the conclusion
that the complainant’s case does not stand on its own legs.
29. The basic ingredient which is pivotal to attract liability under
Section 138 NI Act has not been proved by the complainant,
accordingly, no offence of dishonor of the cheque in question
under the said Section is made out.
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JMFC (NI ACT) Digital Court-02 Date: 2025.03.04
18:45:00 +0100
(South)/Saket Courts, New Delhi
CC NI ACT NO.: 844/2022
CC NI ACT NO.: 874/2022
CC NI ACT NO.: 881/2022
SAVITA GUPTA Vs. ARTI KAKKAR
FINAL ORDER
30. In the light of discussions hereinabove, this court finds accused
Arti Kakkar not guilty of the offence under Section 138
Negotiable Instruments Act, 1881 and therefore acquits her
accordingly.
31. As per section 437A of the Cr.P.C the accused person is
directed to furnish fresh personal bond of Rs 10,000/- and one
surety of the like amount within one week from today. File be
consigned to Record Room as per rule.
This judgment contains 30 pages and each page has been signed
by the Presiding Officer.
Digitally signed
by POOJA
POOJA KUMARI
Announced in open KUMARI Date:
2025.03.04
18:45:04 +0100
Court on 04.03.2025
(POOJA KUMARI)
JMFC (NI ACT), DIGITAL COURT-02,
SOUTH DISTRICT, SAKET COURTS, DELHI 04.03.2025
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KUMARI Date:
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18:45:06
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