Delhi District Court
Page No. 1 Of 11 Virender Jain vs . Mohini Devi on 9 October, 2015
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK595/07
b. Date of the commission of the offence : 05.12.2007.
c. Name of the Complainant : Virender Jain.
d. Name of Accused person and his parentage: Mohini Devi,
and residence W/o Late Sh. Govind Singh,
R/o H No. B19, Acharya Niketan,
Mayur Vihar PhaseI, Delhi91.
e. Offence complained of : Dishonouring of cheque for
the reason "Funds insufficient ".
f. Plea of the Accused and his examination (if any): Not guilty
because alleged loan not
taken from the complainant.
g. Final Order : Acquitted.
h. Order reserved on : 09.09.2015.
i. Order pronounced on : 09.10.2015.
Page No. 1 of 11 Virender Jain vs. Mohini Devi
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Brief reasons for decision:
1. Brief facts necessary for the disposal of this case are that on
11.12.2007, a complaint was filed by Sh. Virender Jain, (hereinafter referred to
as the Complainant) under section 138 & 142 of the Negotiable Instruments Act
(NI Act) R/w Section 420 of IPC against Smt. Mohini Devi, (hereinafter referred to
as the Accused) whereby cognizance was taken for the offence under section
138 of the NI Act, presummoning evidence was led by the complainant and vide
order dt. 12.12.2007, the Accused was summoned before this Court.
2. It is the case of the complainant that the accused and complainant
being neighbours were having regular interactions and the accused had been
time to time taking friendly loans from the complainant. Amongst various loans
taken by the accused from the complainant, was also the loan in question for an
amount of Rs. 1,60,000/ taken in May, 2005 on interest @ 18 % per annum for a
period of 2 ½ years.
2.1. Accused issued cheque in question in favour of the complainant
bearing no. 737420 dt. 04.10.2007 for an amount of Rs. 1,60,000/ drawn on
Indian Bank, Mayur Vihar, Delhi92. The interest amount was to be paid by the
accused on monthly basis but as the accused failed to pay the same on monthly
basis, the complainant accommodated the accused by giving her liberty to pay
the interest at a later stage or at the end alongwith principal amount.
2.2. On 03.10.2007, the accused requested the complainant not to
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deposit cheque in question on 04.10.2007 and sought time on the grounds that
funds were expected in her account by second week of the month.
2.3. Meanwhile, the complainant submits that the accused initiated a case
against the complainant in the court of Ld. Civil Judge, Karkardooma Courts,
Delhi and when the complainant approached her about the same, the accused
consented to compromise the said matter. Further, the accused also instructed
the complainant to deposit the cheque in question with his bank.
2.4. Accordingly, the complainant deposited the cheque in question on
22.10.2007 for encashment in his bank namely Jammu and Kashmir Bank Ltd.,
Mayur Vihar, PhaseI, Delhi91. However, the said cheque was dishonoured on
the ground "Funds insufficient" vide returning memo dt. 23.10.2007.
2.5. When the complainant approached the accused for making payment
of cheque in question, the accused delayed the payment on some pretext or the
other. Therefore, complainant issued a legal demand notice dt. 19.11.2007
through registered post as well as UPC to the accused demanding payment of
cheque in question. Complainant further submits that despite service of legal
demand notice, the accused did not comply with the same. Hence, present
complaint case has been filed.
3. Notice of accusation u/s 251 Cr. P.C was served upon the accused
under Section 138 NI Act on 01.03.2008, to which she pleaded not guilty and
claimed trial. Plea of defence of the accused was recorded on 21.07.2011
wherein the accused admitted to her signature on cheque in question and filling
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in the entire contents on the same except the column of date. Accused further
submitted that she had handed over the cheque in question to the complainant in
presence of Ms. Sunita Aggarwal, W/o Sh. Praveen Aggarwal as she was in
need of money. She stated that complainant had advanced an amount of Rs.
3,00,000/ to her in the year 2005 in presence of Sunita Aggarwal and also that
the she had repaid Rs. 11,000/ per month since year 2005 till July 2008. She
added that she had handed over some document pertaining to her building to
Sunita Aggarwal. Lastly, she admitted to receiving of legal demand notice issued
by the complainant to her but stated that she did not remember whether she had
replied to the said notice or not.
4. To prove his case, the complainant adopted his presummoning
evidence as his post summoning evidence and examined himself as CW1. The
accused was given due opportunity to cross examine the complainant and
thereafter, CE was closed on 19.12.2012. During his cross examination, a
counter claim in a civil suit for permanent injunction was brought on record and
same was exhibited as Ex. CW1/D1.
5. In her defence the accused examined herself as a witness as DW1.
After cross examination of accused as DW1, no other witness was brought by the
accused in support of her case and thereafter, on 19.12.2014 defence evidence
was closed.
6. However, vide order dt. 27.04.2015, it was observed that statement
of the accused u/s 313 Cr.P.C had not been recorded and in the interest of
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justice same was recorded on 09.07.2015, wherein the accused submitted that
she wanted to adopt the evidence already led by her and also that she wanted to
lead further evidence in her defence. In her statement u/s 313 Cr.P.C., the
accused denied her signature on cheque in question as well as filling the
contents on the same. She admitted taking of loan of Rs. 1,60,000/ from the
complainant through Sunita Aggarwal and added that she had repaid an amount
of Rs. 90,000/ to the complainant through Sunita Aggarwal. She also stated that
she had handed over blank cheque in question to said Sunita Aggarwal as
security and also that she did not hand over any other document to complainant
or Sunita Aggarwal. Thereafter, the matter was listed for further DE. However,
the accused vide her separate statement dt. 09.09.2015 stated that she did not
want to lead any further evidence in her defence and hence DE was closed.
7. The arguments in this matter had already been led by the counsel for
both the parties on 15.04.2015 and therefore, after recording the statement of the
accused as aforesaid, matter was listed for orders.
8. Per se this case pertains only to the loan transaction pertaining to
cheque in question. However, on careful perusal of the evidence led by the
parties and other material on record, it is clear that the case pertains to various
disputes between the complainant and the accused with respect to money
transactions as well as a civil dispute pertaining to an immovable property.
Various differing stands have been taken by the complainant during his cross
examination as well as by the accused during her various depositions before the
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court, which brings this case in deep waters of doubt.
9. Before proceeding further with this case, it is important to take note of
the standard of proof which is required to be met by the complainant and the
accused herein. Since, this case pertains to a criminal offence, the liability upon
the complainant is to prove his case beyond reasonable doubt whereas the
accused is merely required to ensure preponderance of probabilities in her
favour.
10. In view of the discussion held above, first the evidence led by the
complainant and his cross examination shall be scrutinized in detail so as to
determine whether the complainant has been able to stand his ground or not so
as to prove the culpability of the accused.
10.1. From the cross examination of the complainant, it comes to the front
that there were various loan transactions between the complainant and the
accused. However, the complainant has been unable to take a firm stand with
respect to the loan transactions. Most surprising are his averments pertaining to
a loan transaction of Rs. 5,00,000/ which bring out the discrepancy in the
testimony of the complainant. Vide his cross examination dt. 20.07.2012, the
complainant has stated that:
It is correct that I have not prepared any documents
about the amount of Rs. 5 lacs given to the accused
through Sunita among me, Sunita and accused.
Later in his cross examination dt. 07.12.2012, the complainant stated
that:
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I had given about Rs. 5 lacs to aforesaid Smt. Sunita
Devi Aggarwal in the month of May 2005 and
remaining loan amount in question to accused after 1 -
1 ½ years from May 2005.
.................
Sunita Devi had handed over property documents of aforesaid house in question on same day when I had advanced loan of Rs. 5 lacs to her.
...............
I did not take any document like property document, pronote or cheque from Sunita Devi when I advanced loan of Rs. 5 lacs to her.
Further in his cross examination dt. 19.12.2012, the complainant has stated that: It is correct that I had not granted any loan of Rs. 5 lacs to the accused.
In view of the above extracts it is clear that the complainant has been continuously shifting his stands with respect to the same transaction which creates suspicion on the veracity of the testimony of the complainant. More so, in view of the testimony of the complainant that other than the loan in question he has to take Rs. 50,000/ to Rs. 60,000/ from the accused, yet again the truthfulness of the complainant comes under grave suspicion as he has admittedly as per his cross examination dt. 07.12.2012 advanced Rs. 6 to 7 lacs on interest @ 1824 % per annum to the accused, which as per him have not yet been repaid by the accused. Hence, either Rs. 6 to 7 lacs has been falsely alleged by the complainant to have been advanced to the accused or only a total amount of around Rs. 2 lacs has been advanced by the complainant to the Page No. 7 of 11 Virender Jain vs. Mohini Devi 8 accused, as both the versions of the complainant can not be true at the same time.
10.2. It is also surprising that during the month of May 2005, the complainant has admittedly advanced loan of Rs. 5 lacs to either Sunita Aggarwal or the accused as well as loan in question of Rs. 1,60,000/ to the accused even though as per his own admission vide his cross examination dt. 20.03.2012 his annual income during 2004 to 2006 was only Rs. 5 lacs. Hence, the source of either of the loans advanced by the complainant as mentioned above is not clear. Moreover, the loan in question has also not been shown by the complainant in his ITRs, which further creates a doubt in the truthfulness in the case of the complainant.
10.3. The alleged loan is also questionable on the ground that even though accused was not paying any interest to the complainant with respect to loan in question, complainant states to have further advanced loan of Rs. 1,50,000/ to the accused in June, 2006. For any reasonable prudent person, when the credibility of a debtor is doubtful as no repayment has been made for a particular loan, then advancement of further loan seems highly improbable. 10.4. Further, it is noted from the cross examination of the complainant dt. 19.12.2012 that he had got a written letter from the accused regarding the possession of property of 25 square yards while granting loan of Rs. 1.5 lacs in the month of June, 2006. In this scenario, again the loan in question becomes doubtful as neither any written document had been taken for the same nor any Page No. 8 of 11 Virender Jain vs. Mohini Devi 9 security in that regard was taken by the complainant from the accused which is contrary to the loan of Rs. 1.5 lacs given by the complainant to the accused in June, 2006.
10.5. Further, inconsistency is seen in the testimony of the complainant pertaining to the work done by him. At one place, he has stated that he is a thekedar by profession, while later he has stated that he is a property dealer. The glaring inconsistency is with respect to his profession as a money lender. In his cross examination dt. 07.12.2012, the complainant has stated that: I have been extending loan to friends and known persons since I attended my age of 25 years.
However, on the very next date of hearing of his cross examination i.e. 19.12.2012, the complainant has stated that:
I did not have any type of money lending licence. Vol. I have not been dealing as money lender.
10.6. Another discrepancy creeps up in the testimony of the complainant with respect to the market value of the property of accused in his possession. In his cross examination conducted on 07.12.2012, the complainant at one point had stated that the market value of the said property was about Rs. 4 5 lacs and later with reference to the same property he has stated that the value of the said house property was about 1.5 to 2 lacs. The said difference in stands taken by the complainant with respect to the value of the property is relevant for this case as, according to his own admission, the accused is a property dealer, who is expected to be well aware about the market value of the property specially in the Page No. 9 of 11 Virender Jain vs. Mohini Devi 10 area in which he is conducting his business.
10.7. The most important missing link from this case is Sunita Aggarwal, the only eye witness to the transaction in question. It has been admitted by both the parties that said Sunita Aggarwal had accompanied the accused for demanding alleged loan in question. Further, Sunita Aggarwal has a key role in this matter as both the parties have submitted that Sunita Aggarwal got the property documents of the accused transferred in her name and later got the same transferred in the name of the complainant. Absence of Sunita Aggarwal from the witness box makes the defence of the accused probable whereby she has alleged that the complainant in connivance with Sunita Aggarwal has filed the present complaint case and also misused the property documents of the accused. The said possibility is also strengthened from the statement of the complainant that he had taken the possession of the house of the accused from Sunita Aggarwal in 2005 itself and the property documents were got transferred in his name by Sunita Aggarwal in August 2008; and it is in between the said period, the present complaint case has been filed.
11. In view of the above detailed scrutiny of the evidence led by the complainant, it is without any doubt that the complainant has taken wavering stands for his case which are far beyond the standard of proof for making the accused culpable for the offence in question. Even though the accused herself has taken inconsistent stands in her defence, the cross examination of the complainant conducted by her counsel has brought out enough loop holes and Page No. 10 of 11 Virender Jain vs. Mohini Devi 11 discrepancies in the case of the complainant, that the benefit of doubt must go to the accused.
12. Hence, the accused is hereby acquitted for the offence u/s 138 of NI Act. Accused is directed to furnish bail bond u/s 437 (A) of Cr.P.C with one surety in the like amount.
Announced in the open court (VIDHI GUPTA)
on 09th Day of October, 2015. MM/KKD/Delhi
This judgment contains 11 signed pages.
Page No. 11 of 11 Virender Jain vs. Mohini Devi