Delhi District Court
M/S Urgent Finvest Ltd vs . on 10 July, 2013
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
M/s Urgent Finvest Ltd.
Vs.
Mahesh
C.C. No. 30/12
U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 03.12.2011
b) Name of Complainant M/s Urgent Finvest Ltd. through
Authorized Representative Sh.
Parminder Singh
c) Name of the accused and Mahesh, S/o Sh. Lekh Raj, R/o
Address: A274, Vikas Kunj, Loni, Ghaziabad,
U.P.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 10.07.2013
h) Date of institution of case: 20.12.2011
i) Date of decision of case: 10.07.2013
CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 1 of 8 2 Brief facts and reasons for decision of the case:
1. The present case is a complaint filed u/s.138 N.I. Act by Urgent Finvest Ltd. through its authorized representative Sh. Parminder Singh (hereinafter referred as the 'complainant) against Mahesh (hereinafter referred as the 'the accused).
2. The subject matter of the complaint is a cheque bearing no.'765580' dated 23.08.2011 in sum of Rs.70,000/ drawn on Oriental Bank of Commerce (Ex.CW1/3). Which when presented for encashment was returned unpaid by the banker with the reasons and remarks 'Accounts closed' vide bank memo dated 29.10.2011 (Ex.CW1/4).
Thereafter, a legal demand notice dated 03.11.2011 (Ex.CW1/5) was sent and admittedly served upon the accused. However, no payment was made within the statutory period of 15 days. Thus, the offence u/s. 138 N.I. Act was allegedly committed.
3. Being the holder of the impugned cheque, the complainant made this complaint alleging that the accused requested the complainant for providing finance facility for purchasing a vehicle. The finance facility in sum of Rs.1,50,000/ was provided to the accused and he purchased a CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 2 of 8 3 vehicle bearing no.'HR38H0218'. After making the payment of some initial installments, accused turned defaulter. His loan account was scrutinized and a sum of Rs.81,920/ was found to be outstanding against him as payable on 12.04.2011. However, the matter was settled between the parties for a total sum of Rs.70,000/. The impugned cheque was issued for payment of this settlement amount.
4. The authorized representative of the complainant filed his evidence by way of affidavit Ex.CW1/A. The documents filed and relied upon by the complainant have already been detailed above. The AR for the complainant was cross examined at length by counsel for the accused.
5. The complainant evidence was followed by statement of accused u/s.313 CrPC. During his statement, accused denied the entire evidence of the complainant except the receipt of legal demand notice. He stated that he had handed over the blank signed chequebook to Harmilap Motors and the impugned cheque is a leaf therefrom. Further explained that chequebook was misplaced by Harmilap Motors and the impugned CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 3 of 8 4 cheque fell in the hands of the complainant, who presented the same without any liability. Accused also opted to lead defence evidence.
6. Ved Prakash, Partner in Harmilap Motos was examined as DW1. Accused examined himself as DW2.
7. I have heard the arguments from the counsels appearing for both the parties.
8. Now, I proceed with the judgment.
9. During the statement u/s.313 CrPC, accused clearly denied of having availed any finance facility from the complainant. Therefore, the first issue worthy of being decided is loan liability of the accused. During his statement as DW2, accused stated that he had purchased the vehicle in 2008 from Harmilap Motors. During cross examination, accused further stated that loan taken by him for the vehicle bearing no. 'HR38 H0218' was over and there was no outstanding against him. Accused also filed the photocopy of R.C. of the financed vehicle [Ex.DW2/C1 (colly.)]. CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 4 of 8 5 As per this document, the vehicle was hypothicated in favour of the complainant, i.e., Urgent Finvest.
10. DW1 Ved Prakash, a partner in Harmilap Motors stated that Harmilap Motors deals in sale and purchase of vehicles and it only assist the purchasers on commission basis in striking the deals. During the cross examination, DW1 accepted that vehicle bearing no.'HR38H0218' was not financed by Harmilap Motors.
11. When CW1 was recalled for cross examination u/s.311 CrPC, he filed the loan agreement Ex.CW1/X. (Original was seen and returned). As per the agreement, the accused was granted a loan facility in sum of Rs. 1,50,000/ and the repayable amount was Rs.2,19,300/.
12. In nutshell, the totality of above evidence is that the accused had purchased a vehicle from Harmilap Motors. It was, no doubt, purchased on finance basis as the statement of accused indicates, wherein he stated during his cross examination that he had repaid the loan taken by him for the vehicle bearing no.'HR38H0218'.
CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 5 of 8 6
13. Now, one thing is clear that vehicle was financed. But Ved Prakash (DW1) stated that same was not financed by Harmilap Motors. The statement of DW1 raised a further question that who financed the vehicle. The R.C. of the financed vehicle (Ex.DW2/C1 colly.) provides the first clue. As per this document, the vehicle is hypothicated in favour of the complainant. It is general practice of the finance business that vehicles are kept hypothicated as security in favour of the financer till the loan is cleared. The agreement (Ex.CW1/X) further substantiate the fact that vehicle was financed by the complainant. Thus, the contention of the accused that he never availed any finance facility from the complainant is nothing but a patent lie.
14. Coming to the second contention of the accused that he never issued the impugned cheque in favour of the complainant and his signed chequebook was misplaced by the Harmilap Motors. Ved Praksh, partner in Harmilap Motors was examined as DW1. He stated that Harmilap Motors only acts as commission agent which assist the purchasers in striking the deal. Further stated by DW1 that vehicle bearing no.'HR38H0218' was not financed by their firm. When the CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 6 of 8 7 finance facilities are not being provided by Harmilap Motors then why they would accept the signed chequebook from the purchaser.
15. In further support of his contention, the accused filed the photocopy of complaint (Ex.DW2/A) allegedly made by him to the SHO, Loni, Ghaziabad. This document is merely a photocopy and not admissible as evidence. Secondly, no D.D. entry has been mentioned upon it. Further, the accused was so conscious about the misuse of his lost chequebook that he allegedly lodged a complaint with SHO but I am surprised to see that no criminal complaint was filed when it was actually misused, as alleged. Now, lets suppose for a while that chequebook was lost, but how on earth it was found and misused only by the complainant company with whom the accused had entered into a loan and hypothication agreement. This unreliable coincidence is creating a strong doubt on the narratives of the accused.
16. Further accused also stated that he had paid sum of Rs.1,27,000/ to Harmilap Motors. The contention is supported by a payment receipt (Ex.DW2/C). There is no stamp or mention of Harmilap Motors on the said receipt. This receipt is meaningless to the present controversy. The CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 7 of 8 8 extent of liability of the accused is proved by document [Ex.CW1/2 (colly.)]. As per which, the accused was liable to pay a sum of Rs.84,600/ to the complainant.
17. To summarize, the complainant is the holder of the impugned cheque. Section 118 (G) also provides a presumption in favour of the complainant in this regard. Onus was upon the accused to rebut the same. However I am of the considered opinion that accused failed to discharge the burden.
18. After analyzing the evidence, it can be safely said that accused has availed the finance facility from the complainant. Financed vehicle was hypothicated on the name of the complainant. Accused defaulted in payment of installments. The cheque issued was bounced and accused tried to escape his liability by a cooked up story.
19. All the ingredients for offence u/s. 138 N.I. Act are proved. Accused stands convicted accordingly.
Let the copy of this judgment be supplied to the accused. (Announced in the open court on 10.07.2013) This Judgment contains 8 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No. 30/12; M/s Urgent Finvest Ltd. Vs. Mahesh Page 8 of 8