Delhi District Court
Sunil Kumar vs Sunita on 25 February, 2025
IN THE COURT OF MS. KAHKASHAN JABIN, JMFC (NI ACT)
DIGITAL COURT-03 SOUTH DISTRICT, SAKET COURTS
COMPLEX: NEW DELHI
1. Complainant case number 5032/2021
2. Name of the complainant Sunil Kumar
S/o Shri. Jawahar Lal
R/o House no. 91-B, Block J-1, Gali No. 1,
Sangam Vihar, New Delhi.
3. Name and address of the Sunita
accused W/o Shri. Anil Kumar Negi
R/o F-3/596, Gali No. 6, Sangam Vihar,
New Delhi -110062.
4. Offence complained of Section 138 of the Negotiable Instruments
Act, 1881
5. Plea of the accused Pleaded not guilty and claimed trial
6. Final order Acquitted
7. Date of institution 01.10.2021
8. Date of reserving the 10.02.2025
judgment
9. Date of pronouncement 25.02.2025
JUDGMENT
1. Vide this judgment, this court shall dispose of aforementioned
complaint case filed by the complainant namely Sunil Kumar
against the accused namely Sunita in respect of dishonour of
cheque, bearing no. 420784 dated 14.03.2021 for an amount
of Rs.2,00,000/- (Rupees Two Lakhs only), drawn on
KAHKASHAN
Canara Bank, Delhi Khanpur Branch-110062 (hereinafter JABIN
referred to as “Cheque in question”). Digitally signed by
KAHKASHAN JABIN
Date: 2025.02.25
16:24:27 +0530
2. In a nutshell, the case of the complainant is that accused having
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.1 of 24
cordial relations with the complainant approached him in
September 2020 for grant of loan of Rs.2,00,000/- for his
personal needs and requirements. Thereupon, complainant
arranged for the funds from his savings and granted friendly
loan of Rs.2,00,000/- in cash to the accused. It is alleged that
upon being approached by the complainant, accused issued the
cheque in question to repay the loan amount. Upon presentation
of the cheque in question by the complainant, it was retuned
dishonoured with remarks “Funds Insufficient” vide return
memo dated 23.03.2021. Consequently, complainant sent legal
demand notice dated 09.04.2021 to the accused through speed
post demanding the cheque amount. Since, the accused failed
to pay the amount of the cheque in question within the
statutory period of 15 days from the receipt of legal demand
notice, hence, the complainant filed the present complaint
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the “NI Act“).
3. Upon prima facie consideration of the complaint, evidence by
way of affidavit and documents annexed therewith, accused was
summoned vide order dated 28.10.2021.
4. Upon appearance of the accused, notice under Section 251
Cr.P.C. was served upon her on 20.05.2022, to which she
pleaded not guilty and claimed trial. At this stage, accused
admitted her signatures on the cheque in question and also
admitted that she received legal demand notice. Additionally,
KAHKASHAN
JABIN
accused stated that the complainant had given her loan of
Digitally signed by
Rs.34,500/- and had taken two cheques including the cheque in KAHKASHAN
JABIN
Date: 2025.02.25
16:24:32 +0530
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SUNIL VS SUNITA
Page No.2 of 24
question from the accused as security cheque. She further
submitted that she has returned the loan amount of Rs.34,500/-
to the complainant and has no liability towards the
complainant. She further alleged that complainant has misused
the cheque in question and has not returned the other security
cheque.
5. Thereafter, an application under Section 145(2) NI Act moved
on behalf of the accused was allowed vide order dated
02.07.2022 and complainant was cross-examined.
6. In post-summoning evidence, complainant examined himself as
CW1 and tendered his evidence by way affidavit i.e. Ex.
CW1/A and relied on cheque in question being Ex.CW1/1,
return memo dated 23.03.2021 being Ex.CW1/2, legal demand
notice dated 09.04.2021 being Ex.CW1/3, postal receipt being
Ex.CW1/4(colly) and consignment report of speed post being
Ex.CW1/5. CW1 was duly cross-examined by Ld. Counsel for
the accused and discharged.
7. Since no other witness was sought to be examined by the
complainant, complainant evidence was closed vide order dated
01.09.2022.
8. Statement of accused under Section 313 read with Section 281
Cr.P.C was recorded 01.09.2022 whereby entire incriminating
evidence was put to her to which she denied the liability qua
the cheque amount towards the complainant and stated that she
did not take loan of Rs. 2,00,000/- from the complainant. The KAHKASHAN
JABIN
other defence disclosed by accused is that she issued two
Digitally signed by
KAHKASHAN JABIN
security cheques to complainant and stated that the cheque in Date: 2025.02.25
16:24:35 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.3 of 24
question was issued as security cheque at the time when
complainant granted loan of Rs.30,000/- to the accused and
another cheque was issued at the time when accused took loan
of Rs. 34,500/- from the complainant on 21.02.2020. Accused
further submitted that despite the repayment of both these
loans with interest, complainant did not return the security
cheques. Since the accused chose to lead defence evidence, the
matter was adjourned for the same.
9. Thereafter, an application under Section 315 Cr.P.C moved on
behalf of the accused was allowed vide order dated 26.09.2022
and accused deposed as DW1. She was duly cross examined
and discharged. During the course of her cross examination,
she brought on record a notebook being Ex.DW1/1 showing
the return of alleged previous loan amounts.
10.Accused also examined her husband Sh. Anil Negi as DW2. He
also relied upon Ex. DW1/1. He was duly cross examined by
Ld. Counsel for the complainant and discharged.
11. Accused also examined sister of complainant Ms. Anita as
DW3. She was duly cross examined by Ld. Counsel for the
complainant and confronted with Ex. DW1/1. DW3 was also
cross-examined by Ld. counsel for the accused with the
permission of the court. DW3 was further cross examined by
Ld. Counsel for the complainant and discharged.
12.Since no further witness was sought to be examined in defence,
DE was closed vide order dated 03.06.2024 and thereafter final
Digitally
signed by
arguments were heard on behalf of both the parties on KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
2025.02.25
16:24:39
18.01.2025 and 10.02.2025. +0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.4 of 24
13.Rival submissions have been considered and record of the case
has been perused.
Law Under Consideration
14.It is well settled position of law that to constitute an offence
under S.138 NI Act, following ingredients are required to be
fulfilled:
14.1. Drawing of the cheque by a person on an account
maintained by him with a bank,
14.2. The cheque should have been issued for discharge in whole
or in part of any legally enforceable debt or liability,
14.3. The cheque should have been presented to the bank within a
period of three months from the date on which it is drawn;
14.4. The cheque is returned unpaid by the drawee bank because
of the amount of money standing to the credit of the
account is insufficient to honor the cheque or that it exceeds
the amount arranged to be paid from that account;
14.5. That the payee or holder in due course issued notice in
writing to the drawer of the cheque demanding payment of
the cheque amount within 30 days of the receipt of
information from the bank regarding the return of the
cheque as unpaid;
14.6. The the drawer of the said cheque failed to make the
payment of the cheque amount to the payee or the holder in
due course of the cheque within 15 days of the receipt of
the notice.
KAHKASHAN
It is only when all the aforementioned ingredients are JABIN
Digitally signed by
satisfied, that the person who draws the cheque is said KAHKASHAN JABIN
Date: 2025.02.25
16:24:42 +0530
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SUNIL VS SUNITA
Page No.5 of 24
to have committed an offence under Section 138 of
the NI Act.
15.Under the provisions of NI Act, the burden of proving
foundational case by the complainant has been dispensed with
by virtue of Section 118(a) and 139 NI Act which raises
presumption of liability against the accused. Clause (a) of
Section 118 NI Act provides that: “Until the contrary is
proved, the following presumptions shall be made…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”; Further Section
139 NI Act provides that: “It shall be presumed, unless the
contrary is proved, that the holder of a cheque received cheque
of the nature referred to in section 138 for the discharge, in
whole or in part, of any debt or other liability.”
16.Thus, where the complainant prima facie satisfies the court that
cheque was issued by the accused and it has been returned
dishonored, the court has to presume that the cheque was
issued in discharge of legally enforceable debt or liability.
Hon’ble Apex Court in Rajesh Jain v. Ajay Singh 2023 INSC
888 held that, “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”. KAHKASHAN
JABIN
17.The effect of the presumption is that it transfers the evidential
Digitally signed by
KAHKASHAN JABIN
burden on the accused. And the party upon whom evidentiary Date: 2025.02.25
16:24:45 +0530
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SUNIL VS SUNITA
Page No.6 of 24
burden is put if that party fails to furnish evidence, he loses.
Meaning thereby, Section 139 NI Act acts as a ‘reverse onus’
clause requiring the accused to prove that he is not liable or that
there does not exist legally enforceable debt or legal liability to
the tune of cheque amount towards the complainant. Until this
evidential burden is discharged by the accused, the presumed
fact will have to be taken to be true, without expecting the
complainant to do anything further. It has been observed by the
Hon’ble Supreme Court of India in Bir Singh v. Mukesh
Kumar (2019) 4 SCC 197, that once accused admits the
signature on the cheque, the presumption of liability is clinged
to the case of complainant.
18.However, the evidentiary burden upon accused is very slight
and is assessed on the measure of preponderance of
probabilities. Hon’ble Apex Court in the case of Rangappa vs.
Sri Mohan AIR 2010 SC 1898 held that the standard of
‘preponderance of probabilities’ is akin to burden of proof in
civil proceeding. Thus, accused can thwart the presumption
either by giving independent direct evidences or by
circumstantial evidence. It has been held in case of Rajesh
Jain (supra) and Kumar Exports and Sharma Carpets
(2009) 2 SCC 513 that in order to rebut the presumption of
liability on the threshold of preponderance of probabilities
accused can take aid of complainant’s version in the original
complaint, the case in the legal demand notice, complainant’s
case at the trial, as also the plea of the accused in the reply to KAHKASHAN
JABIN
demand notice, his statement under Section 313 Cr.P.C. or at Digitally signed by
KAHKASHAN
JABIN
Date: 2025.02.25
CC NI ACT 5032/2021 16:24:48 +0530
SUNIL VS SUNITA
Page No.7 of 24
the trial as to the circumstances under which the cheque was
issued.
19.In the present case, in order to discharge the initial burden to
prove the abovementioned ingredients of Section138 NI Act,
the complainant relied upon his compliant, his evidence
affidavit Ex.CW1/A and placed on record several documents
being CW1/1 to CW1/5. Complainant submitted that the
accused has already admitted her signatures on the cheque in
question and hence the presumption that the cheque in question
was issued in discharge of legally enforceable debt or liability
arises in favour of the complainant in light of Section 118 (c)
read with Section 139 of NI Act. It is further argued that the
documentary evidence put forth in the form of cheque in
question Ex.CW1/1, bank return memo Ex.CW1/2, legal
demand notice Ex.CW1/3, postal receipt Ex.CW1/4(colly) and
consignment report of speed post Ex.CW1/5 coupled with the
fact that no payment was made within the period of 15 days
after receipt of legal demand notice and also in light of
admissions of the accused, the offence under Section 138 NI
Act stands duly proved against the accused. It has been
submitted that since all the ingredients of Section 138 NI Act
are fulfilled, the accused should be convicted.
20.Since the complainant who deposed as CW1 discharged the
initial burden on the basis of documents mentioned
hereinabove and admissions of accused, all the other
Digitally
ingredients of offence under Section 138 NI Act stand signed by
KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
2025.02.25
successfully established. And since the accused has admitted 16:24:51
+0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.8 of 24
his signatures on the cheque in question and the fact of
issuance of cheque in question from her account at the stage of
framing of notice under Section 251 Cr.P.C., the presumption
under Section 118 (a) and 139 NI Act shall come into play
against the accused. The onus is now on accused to rebut the
mandatory presumptions under NI Act by raising probable
defence to show that the cheque in question was not issued in
discharge of legally enforceable debt or liability.
21.In order to rebut the presumption accused has raised a sole
defence that there is no legally enforceable debt or liability of
the accused in favour of the complainant to the tune of amount
mentioned in cheque in question as on the date of its issuance
or presentation.
Defence of Non-existence of Legally Enforceable
Debt/Liability
22.Ld. Counsel for accused argued that complainant had no
financial capacity to advance the loan of Rs.2,00,000/- to the
accused as complainant himself admitted during cross-
examination that he was under financial stress during Covid19
lockdown and that he also took financial assistance from his
friends when his leg was fractured in an accident. It is further
argued that complainant has mentioned different versions about
his source of funds as in his complaint, he stated that he
secured funds from his savings to grant loan to accused while
KAHKASHAN
during cross-examination first he stated that he sold his auto to JABIN
secure funds and later said that he took money from his father Digitally signed by
KAHKASHAN JABIN
Date: 2025.02.25
after sale of certain ancestral property whose details 16:24:54 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.9 of 24
complainant failed to disclose. It is further argued that
complainant advanced previous loan of small amount of
Rs.34,500/- to accused through cheque, however this time
complainant advanced loan of Rs.2,00,000/- to accused in cash.
23.Per contra, Ld. Counsel for the complainant argued that upon
cordial relations with the accused and her husband as they
resided in the same locality, complainant advanced loan to
accused. It is further argued that complainant had financial
capacity as accused has admitted in cross-examination dated
29.03.2023 that complainant lent money on interest basis to 6-7
people.
24.Ld. Counsel for accused has further argued that complainant
has not come to court with clean hands as he has concealed
material facts in his complaint regarding advancement of
previous loans of small amounts of Rs. 30,000/- and
Rs.34,500/- by the complainant to the accused which were duly
returned later.
25.Per contra, Ld. Counsel for complainant has argued that since
accused himself admitted in his plea of defence under Section
251 Cr.P.C. and also at the stage of recording of statement
under Section 313 Cr.P.C. that complainant had previously
granted her loans of amount of Rs.30,000/- and Rs.34,500/-,
hence it reflects that complainant often used to grant loans to
accused on several occasions.
26.Moving ahead, Ld. Counsel for complainant has argued that
Digitally
signed by
there are several discrepancies in the plea of defence disclosed KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
2025.02.25
by the accused at various stages of trial. It is argued that in her 16:24:57
+0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.10 of 24
examination-in-chief dated 26.09.2022 accused stated she
issued one cheque to the complainant however in his plea of
defence at the stage of framing of notice under Section 251
Cr.P.C. accused stated she issued two security cheques to the
complainant. Second discrepancy highlighted by the Ld.
Counsel for the complainant is that accused stated in her
examination-in-chief that she issued cheque in question as
security cheque against loan amount of Rs.30,000/- advanced
by the complainant, however, at the stage of framing of notice
under Section 251 Cr.P.C. it is stated by the accused that she
issued two security cheques against advancement of loan of Rs.
34,500/- by the complainant.
27.It is argued on behalf of the accused that during Covid period
in December 2019 complainant’s leg got fractured and
therefore, complainant assigned the task of taking back the sum
advanced to his sister ‘Anita’. And pursuant to which Anita
signed against the receipt of money from the accused which is
reflected in notebook Ex.DW1/1 on which accused relies.
28.Per contra, Ld. Counsel for complainant has stated that accused
has relied on notebook DW1/1 to fortify her defence that loan
amount of Rs.30,000/- taken from the complainant was duly
returned by accused with interest through complainant’s sister,
however it is argued that accused has created a new story to
negate her liability by showing relation between complainant’s
sister and the accused. It is further argued that transaction
KAHKASHAN
reflected in Ex. DW1/1 is altogether a different transaction JABIN
Digitally signed by
pertaining to the ‘committee’ running between the accused and KAHKASHAN
JABIN
Date: 2025.02.25
16:25:01 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.11 of 24
complainant’s sister and has no nexus with the present case as
it is completely silent as to the transaction of loan amount,
interest payable, fact of security cheque being issued by the
accused and particularly, in light of the fact that accused
admitted in her cross-examination dated 29.03.2023 that
complainant has not signed any page of Ex.DW1/1.
29. Ld. Counsel for accused has argued that this case is a sheer
example of misuse of security cheques where the complainant
first advanced loans of small amount of Rs. 30,000/- and
34,000/- to the accused and took blank security cheques from
the accused and even after their due return, complainant did not
return the security cheques and misused them by filing the
present complaint for an inflated amount of Rs.2,00,000/- in the
cheque in question, which the accused was never liable to pay
to the complainant.
30.Per contra, Ld. Counsel for complainant has argued that
accused in her defence has merely alleged that complainant has
misused the security cheque issued by the accused however,
accused did not file any police complainant against the
complainant regarding such misuse.
31.Accused has relied upon following judgments in support of his
contentions:
(i) Badami v. Bhali, (2012) 11 SCC 574 by Hon’ble
Supreme Court of India.
(ii) Dattatraya v. Sharanappa (2024) 8 SCC 573
passed by Hon’ble Supreme Court of India. KAHKASHAN
JABIN
(iii) Basalingappa v. Mudibasappa (2019) 5 SCC 418
Digitally signed
passed by Hon’ble Supreme Court of India. by KAHKASHAN
JABIN
Date: 2025.02.25
16:25:04 +0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.12 of 24
32.After perusal of the record and upon hearing the submissions
of the parties at length, apropos the defence of the accused qua
non-existence of legally enforceable debt or liability, this court
has arrived at the following findings:
32.1. The accused tried to rebut the presumption of liability by
averring that loan of Rs.2,00,000/- was never advanced by
the complainant to her. To fortify her defence accused has
challenged the financial capacity of complainant and
highlighted his contrasting versions regarding source of
funds that he alleged to arrange for advancing the loan.
32.2. Complainant has stated in the complaint that he arranged
money through difficulty from his savings to grant loan to
accused. However, during cross-examination complainant
submitted that he advanced loan to accused after taking
his share out of the sale proceeds of certain ancestral
property from his father. Relevant extract from the
complaint and testimony of complainant/CW1 is
reproduced below;
Para 2 of Complaint: “On the cordial relation,
the complainant had hardly arranged the money of
Rs.2,00,000/- from his saving and granted the
friendly loan in cash to her…”
***
Testimony of CW1:”I extended loan to the
accused after asking for the money due to me
Digitally
by my father after the sale of certain property signed by
KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
2025.02.25
16:25:07
of which I was a share holder…..When the +0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.13 of 24
accused approached me for loan, I sought time
of 2-4 days for me to arrange the funds, and I
approached my father at that time to give me
my share of the sale proceeds of certain family
property as aforesaid….My father gave me my
share of sale proceeds of the family property as
400 currency notes in denomination of Rs. 500.
Said amount was given to me because I had to
extend loan to the accused.”
32.3. Complainant also failed to disclose the details of the
alleged ancestral property and his exact share in alleged
sale proceeds of that property making his version more
doubtful qua the alleged source of funds. Relevant extract
from the testimony of complainant/CW1 is reproduced
below;
CW1:”My share in the sale of family property in
question was more than Rs.2,00,000/-, but I do not
know the exact share. I had only asked for
Rs.2,00,000/-.”
32.4. Further, there are not only contrasting versions of
complainant qua the source of funds but also with respect
to the timing of advancing the alleged loan amount of
Rs.2,00,000/-. In the complaint, he has stated that when
accused approached the complainant in September 2020
for grant of loan, he advanced the loan after arranging the
money. However, during cross-examination, complainant Digitally
signed by
KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
stated that he does not remember when he took money 2025.02.25
16:25:10
+0530CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.14 of 24
from his father for the purpose of advancing loan to
accused.
CW1: “I do not remember the exact date when I
had asked my father to bring me sum of
Rs.2,00,000/-. Vol. the same was around the time
I fractured my leg”
32.5. Abovementioned testimony also highlights complainant’s
admitted financial position around the time of
advancement of loan which becomes clearer with the help
of other part of his testimony. During cross-examination
complainant admitted that at the time of his leg injury he
asked for financial assistance of Rs.1,00,000/- from his
friends. Complainant also admitted that he was under
financial stress and had no income during Covid19 lock
down. He also admitted that he is a driver and he sold an
auto to procure a sum of Rs.3,00,000/- during the period
of Covid lockdown. Relevant extracts of his testimony is
reproduced below;
CW1:”It is correct that I was under financial
stress during the Covid-19 lockdown. It is
correct that some friends had loaned me some
money at the time I sustained fracture in my
leg. I had taken a sum of Rs. 50,000/- from
Amar Pal R/o unknown, whom I had known
KAHKASHAN
since he was a fellow auto driver, and a sum of JABINRs. 50,000/- from Surender Kumar Gupta R/o
Digitally signed
by KAHKASHAN
unknown, whim I had known since he was JABIN
Date: 2025.02.25
16:25:13 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.15 of 24
fellow auto driver.”
***
CW1:”I had once sold an auto and its sale
proceeds amounting to almost Rs.3,00,000/- had
been deposited in bank account around the time of
Covid lockdown”
***
CW1:”During covid lockdown, I had no
income.”
32.6. Further, the Complainant failed to put forth a clear
version of dates and events that has happened; as
complainant has stated that he was under financial stress
during Covid times, going on to the extent to admit the
fact that he had no income during Covid lockdown and he
took financial assistance from his friends at the time
when he got fracture in his leg in an accident and he
asked for Rs.2,00,000/- from his father around the same
time when his leg was fractured. He admitted that
fracture in leg happened after he advanced loan of Rs.
30,000/- to the accused but he failed to disclose the date
or approx time when he advanced this loan of Rs.
30,000/-,except that he stated during cross-examination
that “It is correct that I extended a loan of Rs.30,000/- to
the accused, but I cannot say if the same was extended on
06.12.2019.”
Digitally
signed by
KAHKASHAN
32.7. Nonetheless, these statements are atleast sufficient to cast KAHKASHAN JABIN
JABIN Date:
2025.02.25
16:25:16
doubt on the version of the complainant. The cumulative +0530effect of these statements makes it improbable, that a
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.16 of 24
person who is already undergoing financial stress and
borrowing money for his needs will move ahead to
advance loan of substantial amount to another person out
of the sale proceeds of his ancestral property.
32.8. Further, the fact of selling of ancestral property by the
father of complainant and subsequently giving of
Rs.2,00,000/- by the father to the complainant is also
shrouded in mystery as reflected in the testimony of DW3
who is sister of complainant; the relevant extract of which
is reproduced below;
DW3: “No formal partition of my father’s property
in the village has taken place but my father sold
some part of his property. I do not know when this
part of the property was sold or to whom it was
sold.”
***
DW3:”I do not know if my other brother or my
sister received any share from the property that my
father sold.”
***
DW3:”It is correct that the complainant had
received his share from the consideration of
ancestral property which was sold by my father.”
32.9. It is further highlighted that complainant though admitted
during cross-examination that he advanced loan of
different sums to the accused previously, however he did KAHKASHAN
JABIN
not mention this fact in his complaint. Relevant extract Digitally signed by
KAHKASHAN
JABIN
from the testimony of complainant/CW1 is reiterated Date: 2025.02.25
16:25:21 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.17 of 24
hereunder:
CW1: “I have extended loan to the accused on
prior occasions also. I had extended loan of Rs.
17,500/- at one occasion, and another loan which I
extend through cheque for amount of Rs.34,500/-
which was duly repaid to me. It is correct that I
extended a loan of Rs.30,000/- to the accused, but
I cannot say if the same was extended on
06.12.2019.”
32.10.Above testimony do affirm that complainant and accused
used to lend and borrow money among themselves but
the admitted facts also reflect that on previous occasions
loan of small amounts were given by the complainant. It
is also inconceivable that though the complainant gave
loan of Rs. 34,500/- to the accused through cheque,
however he gave loan of Rs.2,00,000/- in cash to the
accused. Non-disclosure of these loan transactions leads
to presumption that complainant deliberately concealed
these facts as stating about pervious loan of small
amounts would have made his case doubtful.
Presumption is drawn against the complainant under
Section 114 Indian Evidence Act,1872 which says “The
Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the
common course of natural events, human conduct and
Digitally
public and private business, in their relation to the facts signed by
KAHKASHAN
KAHKASHAN JABIN
JABIN Date:
2025.02.25
16:25:24
+0530
of the particular case.”
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.18 of 24
32.11.Complainant’s version is further perforated by the
accused by showing contradiction in his testimony and
testimony of his sister/DW3. During cross-examination
complainant said that he does not know whether his sister
knows the accused, though admitting that she also lives
nearby in same locality; however, DW3 in her testimony
admitted that she knows accused and also admitted that
certain monetary transactions happened between her and
accused. Relevant extract of DW3 is reproduced below:
DW3:”I know the accused who is my neighbor.”
***
DW3″I recognize notebook Ex. DW1/1…Page
No. 2,3 and 4 have been prepared in my
handwriting by me. I have signed wherever my
name Anita is written and accused has signed
wherever her name Sunita. I have signed where
and when I have received from the accused. I have
written the text mentioned at point ‘B’ at page 2
of Ex. DW1/1and the text at point ‘C’ on page 5
of Ex. DW1/1. The dates mentioned on page 2 are
in serial order and in my handwriting.”
32.12.However, the defence disclosed by the accused is also not
consistent as pointed by Ld. Counsel for complainant. At
the stage of framing of notice under Section 251 Cr.P.C.
accused stated that she issued two security cheques
including the cheque in question to the complaint against
KAHKASHAN
JABIN
the advancement of loan of Rs. 34,500/-, however in her
Digitally signed by
KAHKASHAN
JABIN
CC NI ACT 5032/2021 Date: 2025.02.25
16:25:28 +0530
SUNIL VS SUNITA
Page No.19 of 24
statement recorded under Section 313 Cr.P.C. she stated
that cheque in question was issued as security cheque at
the time when complainant advanced loan of Rs.
30,000/-. In fact, accused altogether failed to disclose
about the fact of previous loan of Rs. 30,000/- in his plea
of defence at the stage of framing of notice under Section
251 Cr.P.C. and disclosed it only at the stage of at the
stage of recording of statement under section 313 Cr.P.C.
However, it needs to be highlighted that complainant has
admitted the fact of advancement of above said loans and
its due return
32.13.Further, the defence of the accused that due to fracture in
complainant’s leg, complainant’s sister/DW3 used to visit
the house of accused for taking back the sum of
Rs.30,000/-, which was to be repaid in installments of
Rs.300/- per day for 120 days, and DW3 signed against
the receipt of money in a notebook Ex. DW1/1 is not
tenable as it fails to show any connection with the
transaction in hand. Further, complainant already
admitted during his cross-examination the fact of
advancement of loan of Rs.30,000/- and its due return
and there is no dispute regarding that fact which accused
is trying to prove through Ex.DW1/1. Secondly, in alleged
notebook Ex. DW1/1 nothing is mentioned regarding the
fact of advancement of loan of any amount by the
KAHKASHAN
complainant to accused, neither it bears the signature of JABIN
Digitally signed by
the complainant on any page, which fact has also been KAHKASHAN JABIN
Date: 2025.02.25
16:25:31 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.20 of 24
admitted by the accused during her cross-examination.
Moreover, accused has alleged that loan of Rs.30,000/-
was advanced to accused on interest basis but nothing is
mentioned regarding that aspect also. DW1 has affirmed
this fact in her testimony; the relevant extract of which is
reproduced hereunder;
DW1: “It is correct that the complainant has not
signed any page of Ex. DW1/1. Vol. the
complainant never came for collection of money
and it was his sister who used to come to collect
money on behalf of the complainant. It has not
been written anywhere in the notebook Ex.
DW1/1 that the complainant gave me money or
that I m returning the money which complainant
gave me.”
***
DW1:”It is correct that it is not written in the
notebook Ex.DW1/1 that there was any interest
clause including the amount or rate of interest.”
32.14.Thirdly, it has been alleged by Ld. Counsel for
complainant that in the notebook Ex.DW1/1, transaction
pertaining to ‘committee’ has been mentioned which used
to run between accused and DW3 and suggestion was
also put to the accused during her cross-examination
regarding the same to which she answered in the negative.
However, the fact of ‘committee transaction’ has been KAHKASHAN
JABIN
affirmed by DW2 during his cross-examination. Relevant Digitally signed by
KAHKASHAN JABIN
Date: 2025.02.25
16:25:33 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.21 of 24
extract of testimony of DW2 is reproduced below;
DW2: “It is wrong to suggest that the fact
mentioned at point A in page 3 in Ex.DW1/1 has
not been mentioned about ‘1300+600 committee
me 21/1/2020 clear'(Vol. DW3 Anita has only
clarified by writing the aforesaid statement in
Hindi and in that Rs. 600/- includes interest
amount installment of Rs.300/- of 2 days i.e.
20.01.2020 and 21.01.2020 to the complainant and
Rs. 1300/- was paid to Anita for committee which
was run by Anita.) ”
32.15.Further, the defence regarding the repayment vide Ex.
DW1/1 through DW3 has come on record for the first
time at the stage of defence evidence and accused did not
mention about this plea of defence either at the stage of
framing of notice under Section 251 Cr.P.C or at the stage
of recording of statement under Section 313 Cr.P.C. Thus
the plea of defence appears to be unreliable in light of
discussion above.
33.This is a classic case where the versions of both the parties
are contradictory at different stages of the trial and this court
has to ascertain as to who has tilted the scales in his favour.
34.There are material contradictions, improvisations, lacunas,
and dearth of quintessential details in the statements of the
complainant on oath at different stages of the trial as pointed
herein and his (hereinbefore) version also does not inspire the KAHKASHAN
JABINconfidence of the court. The underlying principle remains that Digitally signed by
KAHKASHAN JABIN
Date: 2025.02.25
16:25:37 +0530
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.22 of 24
the case of the complainant has to stand on its own legs and if
the accused through the material available on record, is able
to show that converse is true, he can very well succeed in
rebutting the mandatory presumptions.
35.Complainant has vehemently pressed for the conviction of the
accused on account of his admissions at the stage of framing
of notice under Section 251 Cr.PC. However, it is pertinent to
note that out of the total alleged loan amount of
Rs.2,00,000/-, only the liability of Rs. 34,500/- was accepted
at the stage of framing of notice under Section 251 Cr.P.C.,
and the liability of Rs.30,000/- was accepted at the stage of
recording of statement of the accused under Section 313
Cr.P.C. Interestingly, for both these liabilities complainant has
himself admitted that the loan of these two amounts were
duly returned by the accused. Thus, the factum of
advancement of loan of Rs.2,00,000/- had to be established
by the complainant independently after reasonable doubt was
thrown by the accused on the version of complainant, qua his
source of funds and the factum of advancement of loan in
question to the tune of Rs.2,00,000/- to the accused. Even if
the defence of the accused is kept aside, the case of the
complainant should first stand firmly, but it is not the position
in the case at hand. Hence, on the basis of preponderance of
probabilities, the accused has created a doubt in the mind of
the court regarding the case set up by the complainant. KAHKASHAN
JABIN
36.Hence, this court has arrived at an irresistible conclusion that
Digitally signed by
the accused has been able to rebut the mandatory KAHKASHAN
JABIN
Date: 2025.02.25
CC NI ACT 5032/2021 16:25:39 +0530
SUNIL VS SUNITA
Page No.23 of 24
presumption raised against her. Complainant on the other
hand has utterly failed to prove its case beyond reasonable
doubt qua the existence of liability of the accused to the tune
of amount of the impugned cheque as on the date of its
issuance or presentation. Since this basic ingredient which is
pivotal to attract liability under Section 138 NI Act has not
been proved by the complainant, accordingly, no offence of
dishonour of the impugned cheque under the said Section is
made out.
37.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 story and consequently, the
benefit of doubt must go to him.
FINAL ORDER
38.In view of the aforesaid discussion, this court finds the
accused Sunita W/o Sh. Anil Kumar Negi not guilty of the
offence under Section 138 Negotiable Instruments Act, 1881
Digitally
and acquits her accordingly. signed by
KAHKASHAN
KAHKASHAN JABIN
Announced in the open JABIN Date:
2025.02.25
court on this 25.02.2025 16:25:43
+0530
( Kahakshan Jabin)
JMFC(NI Act)Digital Court-3 (South)
Saket Courts: New Delhi/25.02.2025
CC NI ACT 5032/2021
SUNIL VS SUNITA
Page No.24 of 24
