Bharat Satija Vs. Annu Begum- Attempt To Make Fabricating Facts True

DATE OF JUDGEMENT: 17 April, 2021

JUDGES: Metropolitan Magistrate Arushi Parwal

PARTIES

• Bharat Satija (Plaintiff)
• Annu Begum (Respondent)

SUMMARY: The following judgement deals with Section 138 of the Negotiable Instruments Act which provides punishment to the defaulter, when the cheque is dishonored for insufficiency of funds or for any of the prescribed reasons. The question before the District Court of Delhi for consideration was whether the complaint filed by plaintiff against the respondent is maintainable or not maintainable.

AN OVERVIEW

1. The petitioner claimed that he had given a sum of Rs. 4 Lacs as loan to the respondent and the said amount was to be repaid within four months with interest of 3% per month. In order to discharge the liability towards the petitioner, respondent had issued four cheques with assurance that the cheques be passed for payment but later it was returned by the bank with remarks “Funds Insufficient”. Thereafter, the petitioner issued a legal notice for payment of cheque amount. Due to non-payment, the petitioner filed a complaint under Section 138 of NI Act.
2. On failure of the complainant to prove the same by bringing on record the tracking report/endorsement of service, demand notice could not be deemed to have been served upon the accused and no case under Section 138 NI Act is made out against the respondent.
3. The petitioner was a builder by profession and respondent had gotten her house constructed from him. The cheques in question do not bear her signatures and the said cheques were misplaced at the time of vacating the house for construction purposes and she could not say as to how the complainant got hold of the said cheques claimed by the respondent.
4. There being no admission of the accused regarding issuance of cheques in question and her signatures on the same at any point during the trial in the present case, the complainant has not examined any bank witness or other witnesses to prove that the cheques in question bear her signatures. Therefore, the onus was still upon the complainant to prove that the cheques in question were issued by the accused to him for a legally recoverable debt.

IMPORTANT PROVISION

Constitution of India:

• Section 138 of the Negotiable Instruments Act

ISSUES

The major issue concerned in this case-

• Whether complaint filed by petitioner is maintainable under Section 138 of the Negotiable Instruments Act?

ANALYSIS OF THE JUDGEMENT

1. The Hon’ble court observed that the complainant has not been able to prove a legally recoverable debt against the accused and in his favour and that the in question were issued to him by the accused against the same. The proceedings which were initiated by the petitioner were completely false and frivolous.
2. The court also stated that since the amount demanded from the respondent by way of legal notice dated 28.01.2015 is not the total amount of cheques in question, the legal demand notice sent to the accused by the complainant cannot be said to be in compliance of proviso (b) to Section 138 of the Negotiable Instruments Act. Hence, ingredients of offence as laid down in Section 138 of the Negotiable Instruments Act, as to render the accused liable for prosecution under the same, are not complete in the present case and on this ground alone, the accused becomes entitled to an acquittal.
3. The Hon’ble court further observed that on account of defective legal demand notice and the fact that the petitioner has failed establish, beyond reasonable doubt, a legally enforceable debt or liability in his favour and against the accused and the issuance of the cheques in question to him against the same, respondent Annu Begum is acquitted for the offence under Section 138 of the Negotiable Instruments Act.

CONCLUSION

The Hon’ble court observed that there was an attempt to make fabricating facts true to take advantage of the respondent for the financial benefit but the petitioner has not moved towards the court wit clean hands where as the respondent was acquitted as there was no evidence to prove her liability under Section 138 of the Negotiable Instruments Act.