Delhi District Court
Azad Kumar Chadha vs Mariama Davis on 18 January, 2025
IN THE COURT OF JMFC (NI ACT)-01, SOUTH
EAST, SAKET COURTS, DELHI
AZAD KUMAR CHADHA
S/o Sh. Prem Prakash Chadha
R/o H. No H-3/135, Vikas Puri
New Delhi ......... Complainant
VERSUS
MARIAMMA DAVIS
W/o Sh. Davis
R/o H. No. 162/F, Plot No. A-3
LIG Flats, Mayur Vihar, Phase-III
New Delhi-96 ........... Accused
Complainant Case no. 617394/2016
CNR No. DLSE02-000524-2012
Title Azad Kumar Chadha Vs.
Mariamma Davis
Name of Complainant Azad Kumar Chadha
Name of accused Mariamma Davis
Date of registration of complaint 05.06.2012
Date of arguments 10.09.2024
Date of pronouncement 18.01.2025
Offence complained of Under Section 138 NI Act
Offence charged with Under Section 138 NI Act
Plea of the accused Pleaded not guilty
Final order Convicted
Digitally
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 1/15 signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:01:50
+0530
JUDGMENT
1. Briefly stated facts of this case as per complaint are that the
complainant and accused were colleagues and working in same
company namely M/s. Span India Pvt. Ltd and having friendly
relations with each other from the last 17 years. The accused
approached the complainant for friendly loan of Rs.2,50,000/-.
However, complainant expressed his inability to arrange the said
amount but gave Rs.1,40,000/- as friendly loan in the month of
September 2011. The accused in order to discharge her liabilities,
issued a post-dated cheque bearing number 352195 dated
21.12.2011 amounting to Rs.1,40,000/- drawn on State Bank of
India, Okhla, New Delhi in favour of the complainant, with
assurance that the said cheque shall be honoured on presentation.
The accused also signed a receipt dated 22.09.2011. Complainant
got issued a legal notice dated 07.01.2012. Notice was duly
delivered to the accused but no payment was made by her and
hence, the present complaint was filed under Section 138 the
Negotiable Instrument Act (hereinafter “NI Act“).
PROCEEDINGS BEFORE COURT:
2. On the basis of pre-summoning evidence, accused was
summoned by the court for the offence under Section 138 of the NI
Act. The accused put in her own appearance and thereafter notice
under Section 251 The Code of Criminal Procedure, 1973
(hereinafter “CrPC“) was framed upon the accused on 29.03.2014 to
which accused pleaded not guilty and claimed trial. In her plea of
defence, the accused stated that “I did not take any loan from the
Digitally
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 2/15 signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:01:59
+0530
complainant. I never gave the cheque in question to the
complainant. The complainant obtained the cheque in question by
illegal means. I have already stopped the payment of the cheque in
question. I am not liable to pay anything to the complainant”.
3. On 04.08.2014, court notice was ordered to be issued to call
Manager, State Bank of India, Okhla Industrial Branch as there was
contradiction in the documents issued by the SBI, SME Branch
Okhla. Accordingly, Sh. Pankaj Chopra, AGM, SBI was examined
and discharged on 11.09.2014. he stated that Ex. CW1/C was issued
by the concerned branch which shows that cheque in question was
dishonoured due to the reason “fund insufficient”. Record reveals
that accused was present with her counsel on that date.
4. Considering defence of the accused u/s 251 CrPC, his
application u/s 145(2) NI Act was allowed and she was permitted to
cross examine the complainant vide order dated 19.01.2015.
5. During the trial, complainant has led the documentary
evidence through his affidavit Ex. CW1/1, against the accused to
prove his case beyond reasonable doubt. The following evidence are
as under:
DOCUMENTARY EVIDENCE
Sr. No. Name of Documents
Ex.CW1/A Cheque in question
Ex.CW1/B Receipt dt 22.09.2011
Ex.CW1/C Return Memo dated 21.12.2011
Ex.CW1/D Copy of Legal Notice
Ex.CW1/E Postal Receipt
Ex.CW1/F Courier Receipt
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signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:02:07
+0530
Ex.CW1/G Reply received from accused on
legal demand notice
Ex.CW1/H Complaint
6. Despite given ample opportunities, accused failed to cross
examine the complainant. Accordingly, her right to cross examine
the complainant was closed vide order dated 21.05.2015.
7. Thereafter, Statement of accused was recorded under Section
313 of CrPC read with Section 281 of CrPC on 25.05.2015.
Incriminating evidences were put to her wherein she stated that “I
did not take any loan from the complainant. Some dispute arose in
my office. It is a false case. I worked in Span India Pvt. Ltd. From
1992 to 2001 and I worked in that company as a cashier for 10
years. In September 2011, I came to know that income tax
authorities would come for checking the accounts of the company.
In the company, some transactions were recorded in the account
book and some transactions were not recorded in the account book.
Complainant took away all the vouchers of the complainant which
was not recorded in the account books. The complainant returned
all those vouchers after one week, but the voucher worth Rs.3.54
lacs were missing. Therefore, the manager (accounts) namely
Vandana Wadhwa took my signatures on some blank papers and
also obtained 7 blank signed cheques including the cheque in
question. She told me that I have to bear losses for the missing
vouchers, therefore, my signatures and cheques were obtained and
threatened me to lodge police complaint against me. A complaint
was lodged against me in PS Okhla Industrial Area. I have evidence
Digitally
signed by
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 4/15 ABHITESH
KUMAR
ABHITESH
KUMAR Date:
2025.01.18
15:02:25
+0530
to prove the settlement arrived in PS.”. The accused opted to lead
Defence Evidence (DE).
8. In Defence Evidence, accused led the oral and documentary
evidence against the complainant to prove her defence.
9. On 09.10.2015, an application u/s 311 CrPC is filed on behalf
of the accused for re-examination of accused and examination of
concerned IO of FIR bearing no. 0837 dated 19.10.2015. Vide order
dated 07.01.2016, said application was allowed.
10. On 24.11.2016, DW-2 SI P K Jha, PS Okhla Industrial Area
was examined, cross examined and discharged. Thereafter, DE was
closed and matter was fixed for final arguments.
11. On 16.12.2016, again an application u/s 311 CrPC is moved
on behalf of the accused for re-examining of IO of the Okhla PS
who was present at the time of compromised between the
complainant and accused. Vide order dated 05.05.2017, application
u/s 311 CrPC was allowed and SI Kamlesh was summoned.
12. On 20.02.2018, SI Kamlesh was examined as DW-3 and
discharged. Counsel for the complainant was not available
therefore, the opportunity to cross examine DW-3 was closed.
Application u/s 311 CrPC was filed on behalf of the accused to
summon Thomas Mathew and SI Sanjeev Kumar. Vide order dated
03.04.2018, application u/s 311 CrPC was dismissed and matter was
fixed for final arguments.
ORAL EVIDENCE
Sr. No. Name of witness
DW-1 Mariamma Davis/ Accused
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by ABHITESH
ABHITESH KUMAR
Date:
KUMAR 2025.01.18
15:02:33
+0530
DW-2 SI P K Jha, PS Okhla Industrial
Area
DW-3 SI Kamlesh PS Sarita Vihar
DOCUMENTARY EVIDENCE
Sr. No. Name of Documents
Ex DW1/A Letter from SBI
Ex.DW1/B Letter wrote to bank from
stopping the payment of 7
cheques
Ex.DW2/A Status Report of FIR 837/2015
13. Final arguments were addressed by both the parties. This
court has heard Ld. Counsels for both the parties and have perused
the entire record of the case files.
14. Ld. Counsel for the complainant has reiterated the complaint
and further contented that the accused has failed to rebut the
presumption under Section 139 r/w Section 118 (a) of the NI Act.
Accordingly, learned Counsel prayed that accused be convicted for
the offence under section 138 of the NI Act.
15. Per contra, learned counsel for the accused argued that the
accused owes no legal liability. The cheque in question was forcibly
obtained. Accordingly, Counsel for the accused has submitted that
the complaint being a false one, the accused is entitled to be
acquitted.
INGREDIENTS OF OFFENCE AND DISCUSSION:
16. Before dwelling into the facts of the present case, it would be
apposite to discuss the legal standards required to be met by both
Digitally
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ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:02:38
+0530
sides. In order to establish the offence under Section 138 of NI Act,
the complainant must fulfil all the essential ingredients of the
offence. Perusal of the bare provision reveals the following
necessary ingredients of the offence:
First Ingredient: The cheque was drawn by a
person on an account maintained by him for
payment of money and the same is presented for
payment within a period of 3 months from the
date on which it is drawn or within the period of
its validity;
Second Ingredient: The cheque was drawn by
the drawer for discharge of any legally
enforceable debt or other liability;
Third Ingredient: The cheque was returned
unpaid by the bank due to either insufficiency
of funds in the account to honour the cheque or
that it exceeds the amount arranged to be paid
from that account on an agreement made with
that bank;
Fourth Ingredient: A demand of the said amount
has been made by the payee or holder in due
course of the cheque by a notice in writing
given to the drawer within thirty days of the
receipt of information of the dishonour of
cheque from the bank;
Digitally
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ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:02:45
+0530
Fifth Ingredient: The drawer fails to make
payment of the said amount of money within
fifteen days from the date of receipt of notice.
17. It is only when all the aforementioned ingredients are
satisfied that the person who had drawn the cheque can be deemed
to have committed an offence under Section 138 of the NI Act. The
accused can only be held guilty of the offence under Section 138 NI
Act if the above-mentioned ingredients are proved by the
complainant co-extensively. Additionally, the conditions stipulated
under Section 142 of the NI Act have to be fulfilled.
APPRECIATION OF EVIDENCE:
18. In present case, the issuance of cheque in question, signature on
cheque in question and service of statutory demand notice is not
disputed by the accused. Court witness Mr. Pankaj Chopra proved that
Ex. CW1/C was issued by his branch. This document was not disputed
by the accused. It shows that cheque in question was dishonoured for
the reason “fund insufficient”. He further stated that since the cheque
was returned over the counter, no record was maintained in this regard
and due to negligence of the dealing clerk no separate return memo
was issued. Complainant also failed to prove that she had sufficient
amount in her account to honour the cheque, when said cheque was
presented. Accused gave reply of statutory demand notice. The reply
Ex. CW1/G is on record. Therefore, only dispute remains in this case
is “whether the cheque in question was issued by the accused to the
complainant to discharge her legally enforceable debt”.
Digitally
signed by
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 8/15 ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:02:51
+0530
19. As per the scheme of the NI Act, once accused admits
signature on the cheque in question or it is proved that cheque in
question is signed by the accused, certain presumptions are drawn,
which result in shifting of onus. Section 118(a) of the NI Act lays
down the presumption that every negotiable instrument was made or
drawn for consideration. Another presumption is enumerated in
Section 139 of NI Act. The provision lays down the presumption
that the holder of the cheque received it for the discharge, in whole
or part, of any debt or other liability.
20. The combined effect of these two provisions is a presumption
that the cheque was drawn for consideration and given by the
accused for the discharge of debt or other liability. Both the sections
use the expression “shall”, which makes it imperative for the court
to raise the presumptions, once the foundational facts required for
the same are proved. Reliance is placed upon the judgment of the
Hon’ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee
reported as (2001) 6 SCC 16.
21. The Hon’ble Supreme Court in Kumar Exports vs. Sharma
Carpets reported as (2009) 2 SCC 513, while discussing the
contours of section 118(a) r/w 139 of the NI Act, has held interalia
the following:
“14. Section 139 of the Act provides that it shall
be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque of the
nature referred to in section 138 for the discharge,
in whole or in part, of any debt or other liability.
Digitally
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ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:02:56
+0530
15. Applying the definition of the word “proved”
in section 3 of the Evidence Act to the provisions
of sections 118 and 139 of the Act, it becomes
evident that in a trial under section 138 of the Act
a presumption will have to be made that every
negotiable instrument was made or drawn for
consideration and that it was executed for
discharge of debt or liability once the execution
of negotiable instrument is either proved or
admitted. As soon as the complainant discharges
the burden to prove that the instrument, say a
note, was executed by the accused, the rules of
presumptions under section 118 and 139 of the
Act help him shift the burden on the accused. The
presumption will live, exist and survive and shall
end only when the contrary is proved by the
accused, that is, the cheque was not issued for
consideration and in discharge of any debt or
liability. A presumption is not in itself evidence,
but only makes a prima facie case for a party for
whose benefit it exists.”
22. The presumptions raised under Section 118(b) and Section
139 NI Act are rebuttable presumptions. A reverse onus is cast on
the accused, who has to establish a probable defence on the standard
of preponderance of probabilities to prove that either there was no
legally enforceable debt or other liability.
Digitally
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ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:03:03
+0530
23. Further, it has been held by a three-judge bench of the
Hon’ble Apex Court in the case of Rangappa vs. Sri Mohan
reported as (2010) 11 SCC 441 that the presumption contemplated
under Section 139 of NI Act includes the presumption of existence
of a legally enforceable debt. Once the presumption is raised, it is
for the accused to rebut the same by establishing a probable
defence. The principles pertaining to the presumptions and the onus
of proof were recently summarized by the Hon’ble Apex Court in
Basalingappa vs. Mudibasappa reported as (2019) 5 SCC 418 as
under:
“25. We having noticed the ratio laid down by
this Court in the above cases on Section 118(a)
and 139, we now summarize the principles
enumerated by this Court in the following
manner:
25.1. Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption
that the cheque was for the discharge of any debt
or other liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise probable defence. The standard
of proof for rebutting the presumption is that of
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the
Digitally
signed by
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ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:03:12
+0530
accused can also rely on the materials submitted
by the complainant in order to raise a probable
defence. Inference of preponderance 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
they rely.
25.4. That it is not necessary for the accused to
come in the witness box in support of his defence.
Section 139 imposed an evidentiary burden and
not a persuasive burden.
25.5. It is not necessary for the accused to come
in the witness box to support his defence.”
24. Coming back to the present case, the reverse onus was shifted
on accused and the burden was on accused to rebut the presumption.
Accused took the defence that she did not take any loan from the
complainant. Some dispute arose in her office. She worked in Span
India Pvt. Ltd. From 1992 to 2001 and she worked in that company
as a cashier for 10 years. In September 2011, she came to know that
income tax authorities would come for checking the accounts of the
company. In the company, some transactions were recorded in the
account book and some transactions were not recorded in the
account book. Complainant took away all the vouchers of the
complainant which was not recorded in the account books. The
complainant returned all those vouchers after one week, but the
voucher worth Rs.3.54 lacs were missing. Therefore, the manager Digitally
signed by
ABHITESH
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 12/15 ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:03:17
+0530
(accounts) namely Vandana Wadhwa took her signatures on some
blank papers and also obtained 7 blank signed cheques including the
cheque in question. She told her that she has to bear losses for the
missing vouchers, therefore, her signatures and cheques were
obtained and threatened her to lodge police complaint against her. A
complaint was lodged against her in PS Okhla Industrial Area. She
has evidence to prove the settlement arrived in Police Station.
25. Despite given opportunity, accused did not cross examine the
complainant. In defence, she produced herself (DW1), SI P. K. Jha
(DW2) and SI Kamlesh (DW3) as defence witness. DW1 stated that
bank replied Ex. DW1/A, her in compliance of her RTI that cheque
in question was not presented for encashment. She further stated
that she filed complaint (Ex. DW1/B) in bank for stop payment qua
her 7 cheques. During cross examination she stated that she did not
file complaint regarding obtaining 7 cheques forcefully from her.
She filed complaint for misusing of her cheque. Ex. DW1/B perused
by this court. Accused sent a letter to her bank stating her signed
cheque bearing nos. 352189, 352190, 352191, 352192, 352193,
352194 and 352195 are misplaced and she requested to stop
payment of those cheques from her account vide no. 10577093879.
Cheque in question is one of the cheques for which stop payment
was requested by the accused. The aforesaid circumstances disclose
that accused took contradictory plea of defence. She stated that the
cheque in question was forcibly taken from her but she confined her
complaint for misusing of the same only and informed bank that her
cheques were misplaced.
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signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:03:23
+0530
26. Her another defence regarding settlement arrived at PS Okhla
Industrial Area (hereinafter “OIA”) is also not proved in this case.
DW2 stated that he was not present in PS OIA and he has no
knowledge regarding any settlement. DW3 also stated that he was
not present in PS OIA when any the settlement took place. He has
no personal knowledge of this case. Therefore, this court of the view
that accused could not prove her defence.
27. Hence, in the light of discussions and the authorities cited in
the aforegoing para(s), it is apparent that the case of the
complainant that the cheque in question was issued to him by the
accused for the purpose of discharging her legally enforceable debt.
It can be concluded that the accused could not rebut the
presumption raised under section 139 of NI Act. Consequently, it
can be said that legal liability exists in favour of the complainant
qua the cheque amount.
DECISION:
28. To recapitulate the above discussion, the accused made
general and vague statement without any evidence. It is well settled
that bare statement and story-telling would not help the accused to
rebut the presumption raised under Section 118 and 139 of the NI
Act. Mere denial is no denial in the eyes of law. In view of the
above discussion, it comes before this court that the version of the
accused cannot be accepted and she has failed to discharge her
burden. Presumption is still intact with the complainant.
Accordingly, Accused Mariamma Davis held guilty and thereby
Digitally
CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 14/15 signed by
ABHITESH
ABHITESH KUMAR
KUMAR Date:
2025.01.18
15:03:29
+0530
convicted for the offence punishable under section 138 of the NI
Act.
Pronounced in open court on 18.01.2025
Digitally signed
ABHITESH by ABHITESH
KUMAR
KUMAR Date: 2025.01.18
15:03:34 +0530
ABHITESH KUMAR
JMFC (NI ACT)-01, South East
Saket/18.01.2025This Judgment contains fifteen pages (15) and all pages bears my
digital signature. Digitally signed
ABHITESH by ABHITESH
KUMAR
KUMAR Date: 2025.01.18
15:03:39 +0530ABHITESH KUMAR
JMFC (NI ACT)-01, South East
Saket/18.01.2025CT No.617394/2016 Azad Kumar Chadha Vs. Mariamma Davis Page No 15/15