38.6c New Delhi, India, Tuesday, February 27, 2024

Section 138 NI Act: Divorced Wife Tried to Implicate Husband in A Cheque Bounce Case on The Basis of Non-Existent Will, Court Came To Husband’s Rescue [READ ORDER]

By Parth Thummar      Jun 05, 2020      0 Comments
Section138 NIAct DivorcedWife ChequeBounce

A Judge of New Delhi District Court, Amardeep Kaur had in the matter of Aparna Sharma v. Rahul Sharma, acquitted the accused in a cheque bounce matter, where the complainant had falsely tried to entangle the accused in a case. Judgment to this effect was passed on February 17, 2020


Brief Facts of The Case:

As per the case of the complainant, she and the accused were married in December 2009 but got divorced on December 17, 2015. During such marriage the father-in-law of the complainant through a Will dated May 25, 2006, had bequeathed Rs.20,00,000/ in favor of the complainant. After the death of the father-in-law September 08, 2013, the said Will was executed, and the accused received the share of the complainant. To pay the said Rs.20,00,000/, the accused had issued three post-dated cheques in favor of the complainant. One of these cheques dated December 12, 2015, for Rs.2,00,000/- drawn on Axis Bank, Delhi was the subject matter of the complaint. However, the said cheque upon presentation was returned dishonored for the reason 'Insufficient Funds' vide return memo dated February 08, 2016. Thereafter, the complainant had raised a demand qua the impugned cheque vide legal notice but the accused did not repay the cheque amount within the prescribed period of 15 days. Therefore, the complaint under Section 138 of the Negotiable Instruments Act,1881 was filed.

In his defense, the accused had admitted his signatures on the cheque in question but denied the claim of the complainant and had submitted that the cheques including the impugned cheque were given to the complainant as security cheques at the time of negotiations during the divorce settlement. The parties had settled their difference mutually and a full and final settlement of Rs 10,00,000/was paid by him to the complainant after which the two were granted divorce by a decree of the court. Further, he had submitted that no Will as alleged by the complainant was ever executed nor any asset was gifted by his father to the complainant during or after his lifetime and therefore the averments made in the complaint were false. 


Finding of the Court:

The accused had to prove that there existed no liability towards the complainant on the date when the complainant tried to encash the cheque. Two possibilities emerged before the Court: 


  1. The legal demand notice was sent on February 23, 2016, under section 138 NI act, and in her evidence by way of affidavit, the complainant had said that the Will was executed by her ex-father-in-law in 2006, interestingly, it is only in December 2009 that the parties had got married i.e. three years after the alleged execution of the will in question. Later the complainant had submitted in her cross-examination on oath, that the date of the said Will was wrongly mentioned as 25.05.2006 instead of 25.06.2013 due to a typographical error. But she had neither placed the said Will on record nor lead any other evidence to support its alleged date of execution. In this regard, the Court held that the failure of the complainant to place the same on record to corroborate her claim has to be inferred in the favor of the accused.
  2. If the assertion of the complainant was assumed to be true that the alleged Will was indeed executed in the year 2013, given that the parties got married in 2009 and even during such marriage they had a strained relationship (as deposed by the complainant herself in her examination) to the extent that the complainant had left her matrimonial home for almost one year after marriage in 2010 and started living separately from September 2013 and finally got divorced in 2015. The Court observed it unnatural in the Indian cultural set up that her father-in-law exclusively gifted/bequeathed in her favor Rs 20,00,000/in May 2013 in his Will, while the relationship between his son (the accused) and his daughter-in-law (complainant) was struggling and not stable. This narrative didn’t inspire enough confidence in the Court.


Further, the Court observed that while the alleged testator i.e. the father of the accused had expired on September 08, 2013, no plausible explanation had been offered by the complainant as to why she did not demand such amount, if payable on part of the accused, from the accused any time before November December 2015, when the impugned cheques were allegedly issued. Father-in-law’s will had become enforceable in 2013 itself then why she waited for almost two years till 2015 to demand her rightful share. The absence of any plausible explanation in this regard also didn’t inspire enough confidence in the Court.

As the complainant could not prove her case, the Court had acquitted the accused. 



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