Delhi District Court
Malka Rani vs Parmod Kumar Danda on 11 June, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)
SHAHDARA, KARKARDOOMA COURT, DELHI.
Presiding Officer - Manisha Bhau, Delhi Judicial Service
MISC CRL. No. 58/2020
CNR No. DL SH020018422020
In the matter of
MALKA RANI
R/o H. No. 9/206, Khicharipur,
Chilla East, Delhi
...Complainant
versus
PRAMOD KUMAR DANDA,
R/o B126, 2nd Floor, Near Ram Lila Ground
Vivek Vihar, Delhi
...Accused
Under offence Section 138, NI Act, 1881
Date of institution 13.02.2020
Plea of accused Not guilty
Date of reserving of 03.06.2025
judgment
Date of pronouncement 11.06.2025
Decision Acquittal
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
TABLE OF CONTENTS
Sr. Heading Page
number
A Case of the Complainant 2
B Proceedings before the Court 4
C Submissions 8
D Applicable Law 10
E Questions for Consideration 14
F Decision 23
JUDGEMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint
instituted by the complainant against the accused under the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as “NI Act“).
A. CASE OF THE COMPLAINANT
2. The substance of allegations, as contained in the complaint, are as follows:
2.1. The complainant and the accused were known to each other and the
accused had been visiting the house of the complainant for a long
period of time. The accused was in need of money for running his
business, and he requested the complainant for advancement of a
loan of a sum of Rs. 15,00,000/. The complainant advanced the
loan for the said amount on the request of the accused that he will
return the amount within three months, with interest. The loan was2
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandaadvanced by the complainant at her address in the presence of other
public persons.
2.2. In discharge of his liability, the accused issued a cheque bearing
no. 887082 dated 14.12.2019 for the sum of Rs. 15,00,000/ drawn
upon Cooperation Bank, Vivek Vihar, Delhi (hereinafter referred to
as “the cheque” or “cheque in question” i.e., Ex. CW1/A). The
cheque was signed by the accused in presence of public witnesses,
and it was filled by a friend of the accused. The accused assured the
complainant that she can present the cheque for encashment in
three months.
2.3. However, upon its presentation with the bank of the complainant,
the cheque returned dishonoured with the remark “Payment
stopped by drawer” vide bank return memo dated 17.12.2019.
Thereafter, despite requests, the accused did not repay the loan.
2.4. A legal demand notice dated 07.01.2020 demanding the sum of Rs.
15,00,000/ was sent on behalf of the complainant through speed
post on 10.01.2020 to the address of the accused, which was duly
delivered on 22.01.2020.
2.5. Since no payment was received in terms of the legal demand notice
within 15 days of receipt of the legal demand notice, the
complainant filed the present complaint under Section 138, NI Act
on 13.02.2020.
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B. PROCEEDINGS BEFORE THE COURT
3. Upon summoning of the accused vide order dated 15.02.2020, he entered
appearance on 15.11.2021.
4. On 02.12.2022, the substance of accusation was explained to the accused,
and notice under section 251 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “CrPC“) was framed upon him. The accused
pleaded not guilty to the offence. He stated that the cheque was neither
signed nor filled by him, and that he had not received any legal demand
notice. He admitted that he knew the complainant, however, he stated that
the cheque was given by him to a cooperative society, namely, Jay Maa
Bhari located at Khichripur, as he had taken a loan for a sum of Rs. 20,000/
from this society and given the cheque as a security cheque. He stated that
the cheque had been misused by the complainant.
5. The application under Section 145(2), NI Act, of the accused was allowed on
11.05.2023.
6. In order to prove the case, the complainant led her evidence as follows:
Oral Evidence
CW1 Malka Rani, the complainant (tendered her
evidence by way of affidavit i.e, Ex. CW1/1)
Documentary Evidence
Ex. CW1/A Original cheque dated 14.12.2019
Ex. CW1/B Original bank return memo dated 21.12.2019
Ex. CW1/C Legal demand notice dated 07.01.2020
Ex. CW1/E Original postal receipt
Ex.CW1/F (OSR) Copy of PAN card of the complainant
Mark A Internet generated postal tracking report4
Misc Crl 58/2020 Malka Rani v. Pramod Kumar DandaMark B Photocopy of the account statement of the
bank account maintained by the complainant
in ICICI Bank
Mark X (colly) Document pertaining to sale of property in
Rajasthan
7. In her examinationinchief, CW1 adopted her presummoning affidavit
which contained the same deposition as the averments in the complaint.
8. In her crossexamination on 18.09.2023, CW1 deposed that she is a
housewife. The accused, who is an LIC agent, was known to her for the past
10 years, and he was like a brother to her. At the time of deposition, she
stated that her husband was unemployed, and prior in time, he worked in a
car garage for a monthly income of approximately Rs. 10,000/ to 20,000/.
She stated that her family also comprised of her two children, the elder one
being married and living separately, and the younger one being unemployed.
She could not recall when she had last filed her ITR. She stated that the total
loan advanced to the accused was a sum of Rs. 30,00,000/, qua repayment
of which, he gave two cheques for a sum of Rs. 15,00,000/ each. The loan
was advanced in the first week of September, 2019, in the presence of her
friend, namely, Nishat Fatima, and a friend of the accused.
9. A question as to the arrangement of the loan amount was put to CW1, to
which CW1 stated that she arranged the sum from the sale of one property in
Udaipur, Rajasthan for a sum of Rs. 28,00,000/ in September, 2019. This
property was gifted to her, by her father, and she received the sale amount of
this property partly as a downpayment, and partly by way of a cheque
issued in the name of her father, Mehmood Khan. She stated that the cheque
with regard to the sale of property was deposited in the bank account
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
maintained with ICICI Bank, however, on the date of deposition, she
maintained only one bank account in SBI. The crossexamination was
deferred for want of documents pertaining to the sale of property.
10.Further crossexamination of CW1 was conducted on 31.10.2023,
wherein she deposed that the sale deed pertaining to the sale of property was
in possession of her counsel. She deposed that she received a sum of Rs.
28,00,000/ from her father for the sale of the property, for which her father
gave her a cheque for a sum of Rs. 5,00,000/ which was dishonoured, and
the remaining amount was given by her father to her in cash. She again
stated that the buyer of the property had issued two cheques of Rs. 5,00,000/
each, and the remaining sale amount was given in cash. She stated that due
to lapse of time, she could neither remember the date of when her father
received a sum of Rs. 28,00,000/, nor the date when the same was given to
her by her father. She stated that the remaining loan amount of Rs.
2,00,000/ which was given to the accused was arranged by her husband and
her son. She stated that she had filled ITRs till 2019, however, she had not
disclosed the receipt of money from her father in her ITR and neither had she
paid any capital gain tax. She denied any suggestions that she was not in
possession of the sufficient funds or account capacity to advance the loan in
question to the accused. She also denied the suggestion that she had not filed
ITR or paid capital gain tax for the reason that she was not in possession of
such funds.
11.On 31.10.2024, the complainant evidence was closed, and matter was listed
for recording of statement of the accused under Section 313, CrPC.
However, complainant evidence was reopened after an application under
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
Section 311 CrPC moved by the complainant was allowed, and CW1 was
accordingly recalled for examination.
12.In the crossexamination on 19.04.2024, CW1 produced a document
pertaining to the sale of property by her father in Rajasthan. She deposed that
Mark X (colly), i.e., the agreement to sell was executed in Rajasthan,
however, she could not recall the exact date. She stated that there were no
attesting witnesses to Mark X (colly), and subsequent to its execution, no
sale deed was executed. She stated that after the cheque issued by the buyer
was dishonoured, she received the sum of Rs. 5,00,000/ in cash. She further
stated that the property which was sold in Rajasthan was neither registered
before, and nor was it registered subsequent to this sale.
13.Apart from CW1 i.e. the complainant, no other complainant witnesses were
examined.
14.In his statement recorded under section 313, CrPC on 05.07.2024, after
all the incriminating material on record was put to him, the accused denied
issuance of any cheque to the complainant, and stated that the cheque did not
bear his signature. He stated that he had never issued any cheque of such a
high amount, and he instructed his bank to stop payment of the cheque after
he was contacted by his bank regarding the presentment of the cheque. He
denied the receipt of the legal demand notice. He stated that he works as an
LIC agent, and he had given an LIC policy to the complainant as well. The
complainant made the accused a member of the Jai Maa Bahayi Society, and
when he had taken a loan of Rs. 25,000/ from the society, the cheque was
given as a security in the presence of the complainant. The complainant was
herself in need of money, and taking advantage of her relationship with the
other members of the society, she misused his blank and unsigned cheque.
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
15.The accused did not lead any defence evidence, and accordingly, the case
was put up for final arguments.
C. SUBMISSIONS
16.Final arguments were heard at length from both the sides. Record has been
carefully perused.
17.Both parties have advanced final arguments for the present complaint, with
another complaint i.e., CC. No. 59/2020, instituted by the complainant
against the accused with the same allegations for another cheque for sum of
Rs. 15,00,000/.
18.Ld. Counsel for complainant, in support of the averments stated in the
complaint, made the following submissions:
18.1. The complainant is an illiterate woman. The complainant and the
accused had friendly relations and the accused regularly visited the
house of the complainant. The accused was in need of some money
for his financing business, and he approached the complainant for a
loan. The loan amount was arranged by the complainant from the
sale of her property which was located in Rajasthan. A benama of
the sale has been filed by the complainant.
18.2. The accused has played a fraud on the complainant. In his entire
defence, the accused has failed to explain how the cheque came
into the possession of the complainant. The cheque was returned
dishonoured with remark “payment stopped by drawer”, which
shows the connivance of the accused. The accused has not shown8
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandaany police complaint that he may have filed for loss/theft of his
cheque.
18.3. No defence evidence has been led by the accused to prove his
defence.
19.Ld. Counsel for accused relied upon the following: judgement of the Hon’ble
High Court of Delhi in S.P. Dua v. O.P. Dewan, Crl. L.L. 530/2019;
judgement of the Hon’ble Supreme Court of India in Chandrappa & Ors. v.
State of Karnataka, 2007 (4) SCC 415; and, judgement of the Hon’ble High
Court of Madras in V. Deivasigamani v. Jayalakshmi, Crl. A. No. 117 of
2017.
20.Per contra, Ld. Counsel for accused, submitted the following arguments in
defence of the accused:
20.1. The complainant has failed to explain that how a person, being
unemployed and illiterate herself, advanced a loan of Rs.
30,00,000/. With respect to the sale of property in Rajasthan, no
document proving the same, such as any sale deed, has been placed
on record. Only a photocopy of one bayana agreement has been
placed on record, which is not admissible as evidence. No
document proving the ownership of this property has been proved.
20.2. A perusal of the Mark B, which is a photocopy of the account
statement of the complainant, shows that the account balance in her
account is so less i.e., in the range of Rs. 4,000/ to Rs. 10,000/,
that it is unfathomable that a person with such less money in her
account would have advanced a loan of Rs. 30,00,000/ in cash.
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
20.3. The cheque was given by the accused, as an LIC agent, as he had
borrowed some money from a cooperative society. The
complainant had acted as a mediator for this loan, and that is how,
she was in knowledge of this cheque and misused the same.
20.4. The delivery of the legal demand notice has not been proved by the
complainant.
20.5. The defence of the accused has been sufficiently explained by him
during his plea of defence and his statement under Section 313
CrPC.
D. APPLICABLE LAW: INGREDIENTS AND PRESUMPTIONS UNDER NI ACT
21.Section 138 of the NI Act reads as under:
“138. Dishonour of cheque for insufficiency, etc., of funds in the
account.– 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, either because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to have committed
an offence and shall, without prejudice to any other provision of this
Act, be punished with imprisonment for a term which may be extended
to two years’, or with fine which may extend to twice the amount of
the cheque, or with both:
Provided that nothing contained in this section shall apply unless–
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case
may be, makes a demand for the payment of the said amount of money
by giving a notice; in writing, to the drawer of the cheque, within
thirty days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and10
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the said
notice.
Explanation.–For the purposes of this section, “debt of other
liability” means a legally enforceable debt or other liability.”
22.In order to establish the offence under Section 138, NI Act, the following
necessary ingredients of the offence must be fulfilled:
First A person must have drawn a cheque on an account maintained by
him in a bank for payment of a certain amount of money to another
person from out of that account;
Second the cheque should have been issued for the discharge, in whole
or in part, of any debt or other liability;
Third that cheque has been presented to the bank within a period of
three months from the date on which it is drawn or within the period of its
validity whichever is earlier;
Fourth that cheque is returned by the bank unpaid, either because of the
amount of money standing to the credit of the account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with the bank;
Fifth the payee or the holder in due course of the cheque makes a
demand for the payment of the said amount of money by giving a notice
in writing, to the drawer of the cheque, within 15 days of the receipt of
information by him from the bank regarding the return of the cheque as
unpaid;
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
Sixth the drawer of such cheque fails to make payment of the said
amount of money to the payee or the holder in due course of the cheque
within 15 days of the receipt of the said notice.
23.The second ingredient aforementioned is to be read with the presumptions
laid down in the NI Act. Section 139, NI Act, stipulates a presumption in
the favour of the holder in due course as to fact of a cheque being
received in discharge of a legal debt or liability. It reads as follows:
“Presumption in favour of holder: 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”
24.Further, Section 118(a) of the NI Act, states:
“118. Presumptions as to negotiable instruments.–Until the contrary
is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration;
(b) as to date: that every negotiable instrument bearing a date was
made or drawn on such date;
(c) as to time of acceptance: that every accepted bill of exchange was
accepted within a reasonable time after its date and before its
maturity;
(d) as to time of transfer: that every transfer of a negotiable
instrument was made before its maturity;
(e) as to order of indorsements: that the indorsements appearing upon
a negotiable instrument were made in the order in which they appear
thereon;
(f) as to stamps: that a lost promissory note, bill of exchange or
cheque was duly stamped;
(g) that holder is a holder in due course: that the holder of a
negotiable instrument is a holder in due course:
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
Provided that, where the instrument has been obtained from its lawful
owner, or from any person in lawful custody thereof, by means of an
offence or fraud, or has been obtained from the maker or acceptor
thereof by means of an offence or fraud or for unlawful consideration,
the burden of proving that the holder is a holder in due course lies
upon him.”
25.The fourth ingredient is to be read in light of Section 146, NI Act, which is
reproduced below:
“146. Bank’s slip prima facie evidence of certain facts.–The Court
shall, in respect of every proceeding under this Chapter, on
production of Bank’s slip or memo having thereon the official mark
denoting that the cheque has been dishonoured, presume the fact of
dishonour of such cheque, unless and until such fact is disproved.”
26.The following propositions of law can be summarized on a perusal of the
judgments of the Hon’ble Supreme Court of India in Kalamani Tex v. P.
Balasubramanian, 2021 SCC OnLine SC 75; Rajesh Jain v. Ajay Singh,
2023 INSC 888; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors.,
AIR 2019 SC 1876; Kumar Exports v. Sharma Carpets, (2009) 2 SCC
513, and Basalingappa v. Mudibasappa, (2019) 5 SCC 418):
26.1. Once the accused admits the drawer’s signature as his signature,
the combined effect of Section 118(a), NI Act, and Section 139, NI
Act, is that a presumption is raised that the cheque was issued for
the discharge of legally enforceable debt or liability.
26.2. The presumption shifts the evidential burden to the accused, who
has to raise a probable defence creating a doubt as to the existence
of a legally enforceable debt on the standard of preponderance of
probabilities. The presumption is, thus, a rebuttable presumption,
and the onus for rebutting it lies on the accused.
26.3. The words “unless the contrary is proved” in Section 139, NI Act,
make it clear that the presumption has to be rebutted by ‘proof’ and
not by a bare explanation which is merely plausible. A fact is said
to be proved when its existence is directly established or when13
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandaupon the material before it the Court finds its existence to be so
probable that a reasonable person would act on the supposition that
it exists. Unless, therefore, the explanation is supported by proof,
the presumption created by section 139, NI Act cannot be said to be
rebutted.
26.4. To raise a probable defence, the accused may either lead
defence evidence, or rely on the materials placed on record by
the complainant. The accused may prove the nonexistence of
the debt/liability by reference to the circumstances of the case or
presumption of law or fact.
26.5. If the accused rebuts the presumption, the burden once again
shifts onto the complainant.
27.Further, it is pertinent to note that the accused has not led any defence
evidence, and, his statement under Section 281, CrPC, or Section 313,
CrPC does not amount to evidence, and it is to be looked into only as an
explanation of the incriminating circumstances.
E. QUESTIONS FOR CONSIDERATION
28.With respect to the first ingredient, the accused has admitted that cheque
is drawn upon his account. The first ingredient is fulfilled.
29.With respect to the second ingredient, regarding the issuance of the
cheque for discharge of debt or liability, the two questions arise — first,
whether the presumption under Section 139, NI Act read with Section 118,
NI Act, shall be raised in favour of the complainant; and second, if so,
whether the accused has rebutted the presumption by raising a probable
defence on the standard of preponderance of probabilities.
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30.The accused has not admitted the signature on the cheque. In this regard,
reference is made to the judgement of the Hon’ble Supreme Court of India in
Ajitsinh Chehuji Rathod v. State Of Gujarat & Anr., SLP(Crl.) No(s). 16641
of 2023, wherein the following observations were made:
“14. Section 118 subclause (e) of the NI Act provides a clear
presumption regarding indorsements made on the negotiable
instrument being in order in which they appear thereupon. Thus, the
presumption of the indorsements on the cheque being genuine
operates in favour of the holder in due course of the cheque in
question which would be the complainant herein. In case, the accused
intends to rebut such presumption, he would be required to lead
evidence to this effect.
[…]
16. Thus, we are of the view that if at all, the appellant was desirous
of proving that the signatures as appearing on the cheque issued from
his account were not genuine, then he could have procured a certified
copy of his specimen signatures from the Bank and a request could
have been made to summon the concerned Bank official in defence for
giving evidence regarding the genuineness or otherwise of the
signature on the cheque.”
[emphasis supplied]
31.Thus, it is clear that the presumption under Section 118, NI Act, is raised in
favour of complainant even when the signature on the cheque is disputed by
the accused, as it shall be presumed that indorsements on the cheque are in
order in which they appear and the signature is genuine.
32.Further reference is made to the following observations of the Hon’ble
Supreme Court of India in Rajesh Jain v. Ajay Singh, 2023 INSC 888, in
which the Hon’ble Supreme Court elaborated on the factual basis required
for raising of a presumption under Section 139, NI Act:
“35. Section 139 of the NI Act, which takes the form of a ‘shall
presume’ clause is illustrative of a presumption of law. Because
Section 139 requires that the Court ‘shall presume’ the fact stated
therein, it is obligatory on the Court to raise this presumption in every
case where the factual basis for the raising of the presumption had
been established. But this does not preclude the person against whom15
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandathe presumption is drawn from rebutting it and proving the contrary
as is clear from the use of the phrase ‘unless the contrary is proved’
36. The Court will necessarily presume that the cheque had been
issued towards discharge of a legally enforceable debt/liability in
two circumstances. Firstly, when the drawer of the cheque admits
issuance/execution of the cheque and secondly, in the event where
the complainant proves that cheque was issued/executed in his
favour by the drawer. The circumstances set out above form the
fact(s) which bring about the activation of the presumptive clause.
[Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]”
[emphasis supplied]
33.In the present case, the execution of the cheque, i.e., the signature on the
cheque is not admitted by the accused, however, the accused has admitted
that he issued the cheque. Accordingly, the presumption under Section 139 is
raised in favour of the complainant being the holder in due course.
34.Since no defence evidence was led by the accused, it is to be seen if the
accused has pointed out such glaring discrepancies in the material produced
by the complainant so as to rebut the presumption on a standard of
preponderance of probabilities.
35.The accused raised doubts during the crossexamination of CW1 on the
aspect of her financial capacity to advance the loan amount. It was, thus,
incumbent on the complainant to lead cogent evidence proving her financial
capacity when the same was questioned during trial. Reference in this regard
is made to the following observations of the Hon’ble Supreme Court of India
in Ashok Singh v. State of Uttar Pradesh, Criminal Appeal No. 4171 of
2024:
“22….The onus is not on the complainant at the threshold to prove his
capacity/financial wherewithal to make the payment in discharge of
which the cheque is alleged to have been issued in his favour. Only if
an objection is raised that the complainant was not in a financial
position to pay the amount so claimed by him to have been given as
a loan to the accused, only then the complainant would have to16
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandabring before the Court cogent material to indicate that he had the
financial capacity and had actually advanced the amount in
question by way of loan…”
[emphasis supplied]
36.In Tedhi Singh v Narayan Dass Mahant, (2022) 6 SCC 735, the Hon’ble
Supreme Court of India have made the following pertinent observations:
’10. … At the time, when the complainant gives his evidence, unless a
case is set up in the reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it cannot be expected of
the complainant to initially lead evidence to show that he had the
financial capacity. To that extent, the courts in our view were right in
holding on those lines. However, the accused has the right to
demonstrate that the complainant in a particular case did not have
the capacity and therefore, the case of the accused is acceptable
which he can do by producing independent materials, namely, by
examining his witnesses and producing documents. It is also open to
him to establish the very same aspect by pointing to the materials
produced by the complainant himself. He can further, more
importantly, achieve this result through the crossexamination of the
witnesses of the complainant. Ultimately, it becomes the duty of the
courts to consider carefully and appreciate the totality of the evidence
and then come to a conclusion whether in the given case, the accused
has shown that the case of the complainant is in peril for the reason
that the accused has established a probable defence.’[emphasis supplied]
37.CW1 stated in her crossexamination that she was unemployed, and her
husband was previously employed in a car garage for a monthly income of
around Rs. 10,000/ to Rs. 20,000/. One of her children who resided with
her was also unemployed.
38.She deposed that the source of the loan was the money in the sum of Rs.
28,00,000/ which she received from her father arising out of a sale of a
property in Udaipur, Rajasthan, and the remaining Rs. 2,00,000/ was
arranged from her husband and her son.
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
39.It is again clarified that the total loan amount, as it came out in the trial was
Rs. 30,00,000/, for which two separate complaints were instituted, each for a
cheque of Rs. 15,00,000/ i.e., the present complaint and CC. No. 59/2020.
40.There are clear gaps in the narrative of CW1 on the aspect of the sale of
property in Udaipur, Rajasthan. CW1 deposed that she sold the property,
which was gifted to her by her father, for a sum of Rs. 28,00,000/. She first
deposed that she received the sum of Rs. 28,00,000/ from her father.
However, she again deposed, that she received a cheque for a sum of Rs.
5,00,000/ from her father, which was given by the buyer, and the same was
dishonoured, and the remaining amount was received in cash from her
father. She stated that the buyer had issued two cheques of a sum of Rs.
5,00,000/ each to her father, and the cheque issued to her was dishonored.
She further stated that after dishonour of this cheque, she received
Rs.5,00,000/ in cash.
41. There is a clear contradiction in the case of the complainant, whereby she
first deposed that she received Rs. 28,00,000/ from her father, however,
later upon further crossexamination, she could only explain the receipt of
Rs. 23,00,000/. No dates of the receipt of cash or any proof of the same has
been furnished by the complainant.
42.Additionally, even the receipt of the Rs. 23,00,000/ from her father, and the
receipt of Rs. 2,00,000/ from her husband and son appears doubtful. The
complainant chose to not examine as witness her father, husband, or son.
The buyer of the property remained unnamed during her crossexamination
as well. The sole earning member of her family was her husband who was
receiving an income of only Rs. 10,000/ to Rs. 20,000/ per month. As per
her own deposition, her son was unemployed. It appears improbable that
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
upon receipt of a large sum from her father, the complainant used the
entirety of it, along with additional funds from her husband and son, and
advanced it all to the accused as a loan, when her own monthly family
income was not more than Rs. 20,000/ at the maximum. This is more so
improbable when the relationship between her and the accused is not clearly
established, apart from the bare averment that they had friendly relations for
years.
43.The complainant was recalled for evidence upon her application u/s 311
Cr.PC, however, despite this opportunity, no document proving the aforesaid
sale of property or receipt of the cash, such as any ITR, was brought on
record. Only a photocopy i.e., Mark X is placed on record, which is an
agreement for sale of property dated 10.12.2018, and being a photocopy, it is
not admissible as evidence. Nonetheless, it is interesting to note that Mark X
itself reads that the seller i.e., complainant, decided to sell the property as
she was in need of money.
44.As per CW1, the sale of the property took place in September, 2019, though
she could not recall the date when she received the money from her father.
The cheque dated 14.12.2019 was issued around three months prior to the
date indorsed on it, which would be around the same month i.e., September,
2019. This sequence of events that the loan was advanced in the same month
in which the sale of the property took place in Rajasthan does not inspire
confidence in the deposition of CW1.
45.Upon careful consideration, it is clear that the complainant has failed to
prove her financial capacity to advance the loan. Despite questioning of it,
the complainant has not led cogent evidence to prove her financial capacity.
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
46.Therefore, on appreciation of the totality of the evidence, the accused has
brought out fundamental gaps in the case of the complainant and he has
rebutted the presumption raised in favour of the complainant on a
preponderance of probabilities. As discussed in the foregoing paragraphs, it
is evident that the complainant has failed to prove her case of there being
legally enforceable debt or liability, beyond reasonable doubt, as she has
failed to prove that she had the financial capacity to advance such a loan
amount. Accordingly, the second ingredient does not stand fulfilled.
47.With respect to the fourth ingredient, as per original bank return memo,
the cheque returned unpaid from the bank of the complainant with the
remark “payment stopped by drawer”. The same is not disputed by the
accused. When a cheque is returned unpaid with such a remark, it falls
within the purview of Section 138, NI Act. Therefore, the fourth ingredient
also stands fulfilled.
48.With respect to the third ingredient, the cheque was presented within three
months from the date on which it was drawn. The third ingredient is
fulfilled.
49.With respect to the fifth ingredient, the legal demand notice dated
07.01.2020 was dispatched on 10.01.2020 as per the original postal receipt
i.e., Ex. CW1/E, which was, within 15 days of the receipt of information by
the complainant regarding the dishonour of the cheque. Though, as per the
internet generated tracking report i.e., Mark A, the legal demand notice was
delivered upon the accused on 08.07.2021, no certificate under Certificate
65B, Indian Evidence Act, has been filed in regard to the internet generated
tracking report. An electronic record by way of secondary evidence is not
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Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda
admissible in evidence unless the requirements under Section 65B, Indian
Evidence Act, are satisfied.
50.Since the internet generated tracking report cannot be relied upon, it is to be
seen if there can be any presumption that the legal demand notice dated
07.01.2020 was served upon the accused.
51.Reference in this regard is made to the following observations of the Hon’ble
Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed &
Anr, 2007 AIR SCW 3578:
“13. …When applied to communications sent by post, Section 114
enables the Court to presume that in the common course of natural
events, the communication would have been delivered at the address
of the addressee. But the presumption that is raised under Section 27
of the G.C. Act is a far stronger presumption. Further, while Section
114 of Evidence Act refers to a general presumption, Section 27 refers
to a specific presumption…
14. Section 27 gives rise to a presumption that service of notice has
been effected when it is sent to the correct address by registered post.
In view of the said presumption, when stating that a notice has been
sent by registered post to the address of the drawer, it is unnecessary
to further aver in the complaint that in spite of the return of the notice
unserved, it is deemed to have been served or that the addressee is
deemed to have knowledge of the notice. Unless and until the
contrary is proved by the addressee, service of notice is deemed to
have been effected at the time at which the letter would have been
delivered in the ordinary course of business. This Court has already
held that when a notice is sent by registered post and is returned with
a postal endorsement refused or not available in the house or house
locked or shop closed or addressee not in station, due service has to
be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs.
Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr.]…
15. Insofar as the question of disclosure of necessary particulars with
regard to the issue of notice in terms of proviso (b) of Section 138 of
the Act, in order to enable the Court to draw presumption or inference
either under Section 27 of the G.C. Act or Section 114 of the Evidence
Act, is concerned, there is no material difference between the two
provisions. In our opinion, therefore, when the notice is sent by
registered post by correctly addressing the drawer of the cheque, the21
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Dandamandatory requirement of issue of notice in terms of Clause (b) of
proviso to Section 138 of the Act stands complied with. It is needless
to emphasise that the complaint must contain basic facts regarding
the mode and manner of the issuance of notice to the drawer of the
cheque…It is then for the drawer to rebut the presumption about the
service of notice and show that he had no knowledge that the notice
was brought to his address or that the address mentioned on the
cover was incorrect or that the letter was never tendered or that the
report of the postman was incorrect.”
[emphasis supplied]
52.A comprehensive reading of the legal demand notice dated 07.01.2020,
vakalatnama filed on behalf of the accused, and the bail bond furnished by
the accused shows, that the legal demand notice was sent to the same address
which was given by the accused himself in his vakalatnama and his bail
bonds. Therefore, it is established that this is the correct address of the
accused and the presumption of due service arises in favor of the
complainant in view of Section 27, General Clauses Act, read with Section
114, Indian Evidence Act. Nothing has been put forth by the accused, being
the addressee, that there was any interruption in the ordinary course of
business or that the address to which legal demand notice was sent was the
incorrect address. Therefore, the fifth ingredient also stands fulfilled.
53.With respect to the last and sixth ingredient, it is not in dispute that no
payment was made by the accused to the complainant in lieu of the demand
made by the complainant in the legal demand notice dated 07.01.2020.
Therefore, the sixth ingredient stands fulfilled.
54.In conclusion, all ingredients necessary for constituting an offence under
Section 138, NI Act, are not fulfilled in the present complaint. The first,
third, fourth, fifth and sixth ingredient have been satisfied, however, the
second ingredient has not been satisfied.
22
Misc Crl 58/2020 Malka Rani v. Pramod Kumar Danda F. DECISION
55.In view of the foregoing discussion, the accused, Pramod Kumar Danda, is
hereby acquitted for the offence under Section 138 NI Act with respect to
the cheque in question in the present case.1
(Manisha Bhau)
JMFC (NI Act) / Shahdara
KKD / Delhi / 11.06.2025
Digitally
signed by
MANISHA
MANISHA BHAU
BHAU Date:
2025.06.12
13:18:36
+05301 Pronounced in open court on 11.06.2025
Judgement comprises of 23 pages, and each page has been signed by me.
23