Delhi District Court
Anju Sharma vs Sadhna Panjwani on 25 January, 2025
Anju Sharma Vs Sadhna Panjwani
IN THE COURT OF MS. SHIVANGI MANGLA,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO.DLSW02-014114-2017
Ct. Cases No.10416/2017
Anju Sharma Vs. Sadhna Panjwani
25.01.2025
1. Name of the complainant : Anju Sharma
W/o Sh. Naveen Sharma
R/o A5A/209, DDA Flats,
Janak Puri,
New Delhi-110058
2. Name and address of the : Sadhna Panjwani
accused W/o Sh. Rajinder Panjwani
R/o B1/C-10B, Janak Puri
New Delhi-110058.
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
4. Plea of the accused : Pleaded not guilty and
claimed trial.
5. Final Order : Acquitted.
6. Date of Institution : 31.05.2017
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Anju Sharma Vs Sadhna Panjwani
7. Date of pronouncement : 25.01.2025
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct.
Cases No.10416/2017 filed by complainant against the dishonour
of two cheques bearing no.064639 & 064632, both dated
06.04.2017, amounting to Rs.2,90,000/- and Rs.2,80,000/-
respectively, both drawn on Andhra Bank, Janak Puri Branch,
New Delhi-110059 (henceforth, the cheques in question).
2. Briefly stated, the facts that the complainant has good
friendly relations with the accused and they were known to each
other from last couple of years. Thereafter, in first week of
January 2017, accused approached the complainant for a
friendly loan of Rs.5,70,000/- for her urgent requirements.
Further, the complainant, in presence of her husband, advanced
Rs.5,70,000/- to accused. Accused assured that she will return
the said amount within 03 months and accused issued two PDCs
i.e. cheques in question to the complainant towards discharge of
legal debt/liability. On presentation, the cheques in question were
returned unpaid with with remarks “Payment Stopped by
Drawer” vide returning memo dated 07.04.2017.
3. Thereafter, complainant sent a legal notice dated
24.04.2017 to the accused through registered post as well as
through courier calling upon her to pay the outstanding amount.
It is the case of the complainant that despite service/receipt of the
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Anju Sharma Vs Sadhna Panjwani
notice, the accused failed to repay the amount within 15 days.
Hence, the present complaint.
4. The present complaint was filed within the limitation
period.
5. Pre summoning evidence of complainant was recorded and
the cognizance was taken u/s 138 NI Act on 01.07.2017 and
summons were issued to accused thereupon.
6. Notice was framed against the accused on 22.09.2017 to
which she pleaded not guilty and claimed trial. Application u/s
145(2) was filed and considering submissions, same was
allowed.
7. The complainant has examined herself as CW1 and filed
her evidence by way of affidavit Ex.CW1/1 and she has relied
upon the documents : –
Ex.CW1/A &
1. Original cheques in question.
Ex.CW1/B
2. Ex.CW1/C Original cheque return memo.
3. Ex.CW1/D Legal demand notice.
4. Ex.CW1/E Original postal receipt.
5. Ex.CW1/F Courier receipt.
6. Ex.CW1/G & H Tracking reports.
Photocopy of ITR of complainant
7. Mark A
for the period 2016-17.
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Anju Sharma Vs Sadhna Panjwani
Photocopy of ITR of complainant
8. Mark B
for the period 2017-18.
Pass-book of complainant bank,
Central Bank of India, B-56, New
Ex.CW1/D1 Krishna Park Main Najafgarh
9.
(Colly) (OSR) Road Branch, New Delhi for the
period from 21.10.2016 to
30.11.2017
8. CW1/complainant was examined in chief, cross examined
07.04.2018, 21.07.2018, 27.04.2019 and discharged on
07.09.2019. During her cross examination, CW1/complainant has
brought on record the photocopy of ITRs Mark A and Mark B
and pass-book of her bank i.e. Central Bank of India, B-56,
New Krishna Park Main Najafgarh Road Branch, New Delhi for
the period from 21.10.2016 to 30.11.2017. CW2/Naveen Sharma,
husband of complainant was examined on 18.12.2021 by
tendering his evidence by way of affidavit Ex.CW2/A and cross
examined on 07.05.2022 and discharged on 16.07.2022.
CW3/Ms. Aparna, Senior Manager, Union Bank of India, Janak
Puri Branch (earlier Andhra Bank, Janak Puri) was examined,
cross examined and discharged on 07.05.2022. He has brought
his ID proof Ex.CW3/3 (OSR); Account opening form of Sonali
Panjwani Ex.CW2/1 and statement of account from 16.08.2008
to 03.03.2022 Ex.CW3/2. CW4/Niranjan Prasad Kharwar, Asstt.
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Anju Sharma Vs Sadhna Panjwani
Manager, Union Bank of India (Earlier Andhra Bank) was
examined, cross examined and discharged on 17.09.2022. The
witness brought latest signature details of accused Ex.CW4/1 &
old signature of accused Ex.CW4/2. He also brought bank
Account statement of Sonali Panjwani Ex.CW4/3 (Colly).
Closing CE, the matter was listed for SA.
10. The accused was examined and his statement was recorded
under section 313, Cr.P.C. on 15.10.2022, after all the
incriminating evidence and the documents on record were put to
her. Accused had chosen to lead evidence in her defence.
Accordingly, the matter was fixed for DE.
11. The defence witnesses were examined as under:
i) After allowing application u/s 315 Cr PC,
accused was examined herself as DW1 on
04.03.2023 and cross examined on 16.12.2023 and
discharged on 03.02.2024.
ii) DW2/Rajinder Panjwani, husband of accused
was examined on 04.03.2023 and cross examined
and discharged on 20.05.2023.
iii) DW3/Sonali Panjwani, daughter of accused
was examined, cross examined and discharged on
20.05.2023. She brought document Ex.DW3/1
(OSR) with regard to stop payment instruction given
to her bank and a police complaint Ex.DW3/2
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Anju Sharma Vs Sadhna Panjwani
(OSR).
iv) DW4/Niranjan Prasad Kharwar, Assistant
Manager, Union Bank of India (earlier Andhra
Bank), Janak Puri Branch, was examined, cross
examined and discharged on 27.04.2024. The
witness brought on record, details of bank account
in the name of Sonali Panjwani/daughter of accused
with respect to request of stop payment of certain
cheques Ex.DW4/A (Colly).
v) DW5/HC Satbir, PS Janak Puri was examined
and cross examined on 31.08.2024. He brought on
record copy of order of Additional Commissioner of
Police dated 18.06.2021 Mark DW5/X regarding
weeding out of old record PS Janak Puri, as per
which record of PS Janak Puri upto 31.12.2017 had
been destroyed.
12. Thereafter, DE was closed and the matter was listed for
final arguments.
13. Both the counsels filed their written submissions along
with judgments in support of their case. Rebuttal submissions
also taken from both the counsels. The submissions made on
behalf of both the parties and the judgments relied on by the
parties have been considered.
POINTS FOR DETERMINATION, APPRECIATION OF
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Anju Sharma Vs Sadhna Panjwani
EVIDENCE AND CONSEQUENT FINDINGS:
14. To establish the offence under Section 138 of the NI Act
against the accused, the complainant must prove the following: –
i. the accused issued a cheque on account
maintained by him with a bank.
ii. the said cheque has been issued in discharge, in
whole or in part, of any legal debt or other liability.
iii. 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.
iv. the aforesaid cheque, when presented for
encashment, was returned unpaid/dishonored.
v. 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.
vi. the drawer of the cheque failed to make the
payment within 15 days of the receipt of aforesaid
legal notice of demand.
15. The two cheques in question are issued from the account
bearing number 026810011018443. As proved by the various
documentary evidences and the testimony of the complainant as
well as defence witnesses, the present account belongs to the
daughter of the accused, Sonali Panjwani. The daughter of
accused attained majority and since 03.09.2012, the account has
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Anju Sharma Vs Sadhna Panjwani
been operated by herself under her signatures as proved by Ex.
CW4/1.
Admittedly , the signatures on both the cheques have been
admitted by the accused. However, the contents have been
denied. The presumption under section 20 NIA can be raised and
following guidelines in case of Bir Singh v. Mukesh Kumar
(2019) 4 SCC 197, which states that “a person is liable for
commission of offence punishable u/s. 138 NIA even if cheque is
filled by some other person”. (Reliance placed on M/s The
Jammu & Kashmir Bank V. Abhishek Mittal 2011; Kalamani
Tex V. P Balasubramanian (2021); Oriental Bank of Commerce
V. Prabodh Kumar Tiwari (2022) SC, wherein in all the cases it
was held that it was signed blank cheque is handed over, it
amounts to giving implied authority to the holder of the cheque
to fill up the blank which are left.)
However , this does not fulfil the utmost requirement of
section 138NIA , which reads as- ” Where any cheque drawn by
a person on an account maintained by him with a banker for
payment of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any debt or
other liability, is returned by the bank unpaid, ……”. (Reliance
placed on Jugesh Sehgal V. Shamsher Singh Gogi; Basalingapa
V. Mudibasappa; Aparna Shah V. M/s Sheth Developers).
On the basis of the above, it can be observed that section
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Anju Sharma Vs Sadhna Panjwani
138 NIA applies only to the matters in which the cheque has
been drawn by the drawer on the account maintained by him with
a banker. Accordingly, to fall within the ambit of section 138
NIA, the cheque in question should have been drawn from the
account of the drawer himself. Since the ingredients of Section
138 NIA are itself not completed, no presumption u/s 118/139
NIA can be raised. (Reliance placed on K Ramesh V. K
Kothramanan SC 2024; Alka Khandu V. Amar Mishra 2021 SC;
K Prakashan V. P K Surenderan 2007 (7) SC).
Applying the same in the present matter , the cheque in
question has been drawn from the account of the daughter of the
accused and not from the account of the accused. As per the
deposition of the various bank witnesses, it has been amptly
proved that accused has the authority to sign the cheques on
behalf of her daughter and to present the same in the bank for
encashment purposes only up till 03.09.2012. And any cheque
issued by the accused, for the said account of her daughter under
her signatures shall not have any relevance and shall not be
encased.
Now, as per the version of the accused, both the cheques
were lost in 2016 for which a police complaint dated 16.06.2016
Ex. DW3/2 OSR has been filed on record. The said document has
passed the test of veracity and has not been challenged. And
rather, complainant himself admitted that a complaint was filed
by the accused along with her daughter for the theft of the cheque
against her, and for which she along with her husband also faced
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Anju Sharma Vs Sadhna Panjwani
the investigation.
It is pertinent to note that Ex.DW3/2 is dated 16.06.2016,
while the impugned loan in the present matter has been advanced
in the January 2017 ie. After filing of the present police
complaint against complainant by accused and her family.
Further, Ex. DW3/1 has been filed showing the stop
payment instructions issued for both the cheques in questions by
the daughter of the accused to the bank . To reiterate, the said
document has also passed the test of veracity and has remained
unchallenged.
Accordingly, on the basis of the above, what can be
observed is that the cheques in questions were not in possession
of the accused at the time of advancement of the impugned loan
in January 2017 . As per the complainant version, the same were
issued to the complainant by the accused under her signatures on
the date of advancement of the loan. No cogent evidence has
been placed in this regard, showing or proving that issuance of
the cheque in question to the complainant by the accused in
January 2017. Moreover, when the complainant was herself
facing the investigation for the theft of the said cheques, then
why no effort was made by the complainant to see that the
cheques in questions are the same cheques for which she has
been made to face investigation. Also, when she was being
harassed and prosecuted at the instance of the accused and her
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daughter for the theft of their cheques, then why the complainant
advanced the amount of Rs.5,70,000 in the favour of the accused
in January 2017.
The argument has been raised as to when the cheques were
stolen by Pooja Chaudhary, Monika, Meenu Gupta, Som Nath
Anand then why and how the chaques have been signed by the
accused and an attempt has been made to show cause that
something fishy occurred. However, the said argument has not
been proved or challenged during the entire trial and is further
bypassed with the fact that despite the complainant being made
to face complaint proceedings for theft of cheque, still the
complainant went on to help the accused and that too on friendly
note. Another averment with regard to accused being a joint
account holder with her daughter has been raised, however, the
said argument can not hold force in light of the deposition given
by CWs and DWs called from the bank of daughter of accused,
who deposed -“account is being maintained by Ms. Sonali
Panwani since 2012” who fortified the fact that there was no joint
ownership/holding in the account of the daughter of the accused
on the date she attained majority and the account was solely
operated by the daughter under her signatures since 2012. Also as
per the argument raised by Ld. counsel for accused that the
cheques of accused were distributed by the complainant amongst
other persons has not been disputed or pleaded earlier. The
further argument with regard to the non-filing of any civil or
criminal proceedings against complainant has been raised.
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Accused admittedly deposed that no criminal or civil proceedings
were initiated against the complainant or other persons for the
misuse of the cheques. No reason has been disclosed for not
taking steps. Accordingly, the arguments stands in favour of
complainant.
Hence, the first ingredient of section 138 is not fulfilled
as the cheque in question has not been issued by the accused
from her own account, and as such no presumption or any other
liability can be casted on the accused with regard to the cheque in
question.
16. The accused has further taken the defence that the
complainant was running a committee, but the same has not been
proved and has remained unsupported with any cogent evidence.
The averments with regard to reply of the legal notice to
have not been filed on record appears to be non sustainable as the
same has not been proved or pleaded by furnishing any reply on
record by the accused herself. The accused admitted the receipt
of legal notice by her. (C.C. Alavi Haji vs Palapetty Muhammed
& Anr 2007 AIR SCW 3578).
17. The further contention of defence has been raised with
regard to the financial capacity of the complainant to advance the
impugned loan and the contradiction that have been highlighted
in the testimony of the complainant witnesses.
CW1/complainant stated herself to be running a boutique
and in business of sale of bedsheets and suites . However,
admittedly, the said boutique business has been run without any
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license, without any maintenance of ledger or the bank account
and no the evidence has been put forward to prove the existence
of the business by the complainant.
As settled in Basalingappa vs Mudibasappa AIR 2019 SC
1983, when financial capacity of complainant is being
questioned, it shall be incumbent on him to have explained his
financial capacity and further relying on provisions of Sri
Dattatraya V. Sharanappa 2024 SC.
Complainant stated to have advanced the loan of Rs.
5,70,000 to the accused after borrowing Rs.2,00,000 from her
husband , Rs. 1,70,000 from her brother, and after arranging Rs.
2,00,000 from her own income and savings. With respect to the
amount borrowed by the complainant from her husband and
brother, no proof has been furnished. Husband of the
complainant was observed as CW2. Who apart from his own
testimony has not supported or brought on record any
documentary evidence to prove that he advanced Rs. 2,00,000 to
the complainant to be further advanced to accused. Neither the
said amount has been disclosed by CW2 in his ITR. The reason
for doing so has not been disclosed. Further, the brother of the
complainant has not been examined ever. No evidence has been
led to prove the borrowing of Rs. 1,70,000 from him, further
accompanied with the doubts with regard to the date and the
mode by which the same was borrowed. Further, taking note of
the ITR of the complainant and deposition of CW1, her ITR for
the relevant years shows her gross income to be around 3 to 4
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lakhs annually. As per her deposition, she did not withdraw any
amount from the bank, and the impugned loan was totally
advanced out of her own savings. No evidence or bank passbook
or any other proof has been led by the complainant to show the
quantum of saving she had with herself to advance to the
accused. And on the basis of any income proof , the availability
of Rs. 2,00,000 ie. Almost half of her yearly income with herself
at her house appears to be suspicious. The present loan had not
been disclosed by complainant in her ITR. (Reliance placed on
Rajaram V. Maruthachalam 2023 SC; Krishna Morajkar V. Joe
Ferrao Crl. Appeal No.6/2012, whereby it was held that the non
showing of the loan transaction in the ITR can not provide any
advantage to accused.). The Ld. Counsel for accused has further
relied upon the article issued by RBI regarding de-monitization,
showing the date when the demonitization occurred in the
country, thereby further creating doubt on version of complainant
to have advanced the loan in cash to the accused in year 2017.
On the basis of above, it can be observed that the complainant
has failed to furnish relevant proofs showing her financial ability
to lend the impugned loan.
Further, the testimony of CW1 and CW2 are filled with
contradictions.
CW1/complainant provided the denomination of the
currency note in which she advanced the impugned loan amount
initially as Rs.500 and 2000 notes and in her later testimony, she
refused her awareness regarding the denomination of the
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currency notes, contradicting her previous statement.
In her initial part of statement as CW1 , she deposed – ” in
the first week of January 2017, accused approached me for the
loan in question, but I do not recollect the exact date.”
While in the latter part of the testimony, she deposed -” accused
came alone to my place when I had given her the loan and the
loan was advanced in first or second week of the month of
January 2017, and my husband was also there when the accused
had come to take loan from me.”
The said deposition of CW1 stands in contradiction with
the deposition given by CW2/the husband of the complainant
who stated himself to be the eye witness for the present loan
transaction between complainant and accused.
CW2 deposed -” only the accused was present in my house at
that time along with my wife, the daughter of the accused was
standing outside our house.” The presence of the daughter at the
house of the complainant has been mentioned for the first time
during cross-examination of CW2, who apparently submits
himself to be the witness . The said fact finds mention no where
in other pleadings of the complainant.
Further contradiction can be seen in the testimony of CW2,
where he stated that the loan amount was to be repaid within two
months. While in the other pleadings of complainant , the loan
amount was to be repaid within three months.
Also, CW2 contradicted himself stating-” the accused has
brought some property papers, but I did not take them ” , while
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later an attempt was made to conceal some facts and the
deposition was changed to. -” the accused assured me that they
will handover the property documents also, but they never
brought any such documents.” Here, nothing has been brought
on record to establish the requirement of property papers by
complainant or her husband when the loan was given to accused
on a friendly note without interest and without any
documentation.
Another contradiction has been highlighted in testimony
of CW2 , when he stated initially, -” she further told that she will
return the amount in cash.” While on the other date of the
deposition CW2 stated, -” the accused did not told me that she
would return the amount in cash.”
One more point to be noted is that no reason has been
mentioned in the complaint or evidence affidavit or in the
testimony of CW1 conducted on multiple dates for the
advancement of the loan to the accused. Every time the problem
or the dire need of the accused has been quoted. And for the first
time during testimony of CW2, it was noted that the present loan
was advanced to the accused due to medical illness of the son of
the brother of accused. However, the said fact has remained
unsupported with any medical documents or testimony of any of
the relevant witnesses.
It is further to be noted that the number of the cases
pending against the accused and her defence being same in all the
matters does not and cannot help the complainant in establishing
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her case on merits.
The testimony of CW1 and CW2 is filled with
contradictions and inconsistencies and further unsupported with
any documentary proof.
18. Accordingly, as observed above the essential ingredients
of section 138 are not complied, and the case of the complainant
has not been proved beyond reasonable doubt. Thereby applying
the principles in the case of Anil Kumar Sharma versus. Aninder
Singh, which states that when two views are possible in a matter
then the court should lean in favour of the view which is
beneficial to the accused.”
19. Hence, it can be observed that accused has succeeded in
raising doubts in complainant’s story and has succeeded in
proving defence of preponderance of probability.
20. Accordingly, accused Sadhana Panjwani is acquitted of the
offence under section 138 N IA.
Note: This judgment contains 17 pages and each page is signed by the
undersigned. Digitally signed
by SHIVANGI
MANGLA
SHIVANGI
Announced in the open MANGLA
Date:
2025.01.25
Court on 25.01.2025. 15:35:03
+0530(Shivangi Mangla)
(JMFC-05 (NI ACT)
South West, Dwarka
New Delhi/25.01.2025Ct. Case No 10416/2017
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