Delhi District Court
Judgment M/S Jage Ram Karan Singh & Anr. vs . State & Anr. (Supra) Relied Upon By The on 22 September, 2020
IN THE COURT OF MS. SURPREET KAUR, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 11160/2016
Fateh Chand Agarwal
S/o Late Sh. Moji Ram
R/o House No. C-19A,
Hargovind Vihar,
Vijay Vihar, Phase-II,
Delhi-110085 ............Complainant
Versus
Vikash Kumar
S/o Sh. Durga Prashad
R/o House No. C-74/10,
2nd Floor, Vijay Vihar, Phase-II,
Delhi-110085 .............Accused
JUDGMENT
(1) Name of the complainant, : Fateh Chand Agarwal
parentage and address S/o Late Sh. Moji Ram
R/o House No. C-19A,
Hargovind Vihar,
Vijay Vihar, Phase-II,
Delhi-110085
(2) Name of accused, : Vikash Kumar
parentage and address S/o Sh. Durga Prashad
R/o House No. C-74/10,
nd
2 Floor, Vijay Vihar, Phase-II,
Delhi-110085
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 07.11.2014
(6) Date of reserve of order : 22.09.2020
(7) Date of Final Order : 22.09.2020
(8) Final Order : Convicted
Digitally signed
by SURPREET
Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 1 of 25
Date:
KAUR 2020.09.22
16:37:17
+0530
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
It is contended by the complainant that he had entered into a loan agreement with the accused and accused's brother (who is an accused in a separate yet connected matter) on 24.09.2007 and paid the accused and his brother Rs.8,50,000/- in cash and the accused had to return the loan amount in monthly instalments of Rs.15,000/- including interest within a period of 90 months as per said loan agreement. Accused and his brother were liable to pay Rs.13,50,000/- in total (with interest) to the complainant. After receiving the said loan, the accused did not pay even a single instalment despite repeated requests of the complainant. In the month of May 2014, on repeated request, in discharge of part liability, the accused issued a cheque bearing no. 183432 dated 16.06.2014 for a sum of Rs.9,00,000/- drawn on HDFC Bank, Pitampura, New Delhi-110034, to the complainant. When the aforesaid cheque was presented for encashment, the same was returned dishonoured with the remarks "account closed" vide cheque return memo dated 09.09.2014. After dishonour of the aforesaid cheque, complainant issued a legal notice dated 01.10.2014 to the accused through registered A.D. and speed post. Despite that the accused neither replied the legal notice nor made any payment. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried, and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, cheque bearing no. 183432 dated 16.06.2014 for a sum of Rs.9,00,000/- drawn on HDFC Bank, Pitampura, New Delhi-110034 as Ex. CW-1/2, Cheque deposit slip as Ex. CW-1/3, cheque returning memo dated 09.09.2014 as Ex. CW-1/4 & Ex. CW-1/9, legal notice dated 01.10.2014 as Ex. CW- 1/5, postal receipts as Ex. CW-1/6 & Ex. CW-1/7 and A.D. Card as Ex. CW-1/8.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 01.06.2015 to which he pleaded not guilty and claimed trial. He took the defence that 25 cheques including cheque in question were given by him to the complainant as security for taking loan of Rs.1,00,000/- in the year Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 KAUR Page No. 2 of 25 SURPREET Date:
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2007. He stated that brother also gave 25 cheques to the complainant for taking the same loan for security. He stated that he has already repaid the said loan amount to the complainant and despite making payment, cheques and documents given by him and his brother towards security were not returned by the complainant on one pretext or other. He admitted his signature on the cheque in question and denied having filled in contents. He denied having any liability towards the complainant. He further denied receiving of legal notice regarding the cheque in question.
5. The complainant was examined, cross-examined and discharged. During cross- examination, the complainant stated that he advanced the loan to the accused in cash in the month of August 2007 and did not take any receipt from the accused for advancing the same. He further stated that he advanced loan to the accused in the house of accused in August 2007, however, he does not remember the exact date. It was stated that no rate of interest was fixed for given loan and the loan was advanced with a due agreement signed by both the parties. It was further stated by the complainant that the agreement was pre- notarized and already signed by the accused person before handing it over to the complainant. The complainant further stated that the accused had agreed to repay the loan by paying Rs.15,000/- per month which included interest in 90 equally monthly instalments, however, no instalments were paid by the accused and his brother. First instalment was due in the month of October 2007. The complainant further stated that he was not pursuing any profession of the business as of now and in the year 2007, he was running a dairy which was started by his father. The complainant denied the suggestion that he is a money lender. He further stated that at the time of advancing of loan, he had money from sale proceeds of his dairy, however, he did not show this money in his ITR. He further stated that he did not know whether the cheque in question was CTS-2010 compliant or not. He further stated that the cheque in question was handed over by the accused to him in the month of September 2014. The complainant denied the suggestion that he has not advanced the loan of Rs.8,50,000/- to the accused and his brother and that the cheque was not given towards any debt/liability.
Thereafter, the opportunity of the accused to further cross-examine the complainant was closed vide order dated 09.08.2016, however, the complainant was recalled for further cross-examination when an application under Section 311 of Cr.P.C. moved by the accused was allowed vide order dated 23.08.2018. Digitally signed by SURPREET SURPREET KAUR KAUR Date:
2020.09.22 16:38:06 Fateh Chand v. Vikash Kumar CC No. 11160-2016 +0530 Page No. 3 of 25 During cross-examination conducted on 01.04.2019, the complainant stated that he did not know English Language. The complainant stated that he followed the wife of the accused and thereafter, came to know about the address of the accused. He admitted that the pre-notarized agreement was not bearing his signatures when it was brought to him by the accused. He further stated that he knew Sh. Krishan Gopal and Sh. Ram Gopal at the relevant time but was not having much contact with them. He further denied the suggestion that no loan agreement was executed by the accused as no loan was advanced to the accused and a forged document was filed by the complainant. He further denied the suggestion that he deliberately did not examine the notary public and stamp vendor of the agreement since it was a false document. The complainant further stated that he had given Rs.8,50,000/- to the accused and his brother in two instalments and upon giving the last instalment, the accused got the document executed. He denied the suggestion that he had kept certain blank signed papers and cheques of the accused back in the year 2007 and then misused them by filing the present case. He further stated that the 90 instalments were to be paid in the year 2014, however, he cannot say whether 90 th instalment was to be paid in the month of March 2015 or not due to lapse of considerable time. He further denied the suggestion that he did not have the financial capacity to advance loan to the accused as he had sold his cattle and a plot in his village for arranging the funds for providing loan to the accused. He denied the suggestion that the cheque in question was given in respect of loan taken by the accused in the year 2007 which was repaid to him, however, he did not return the cheque despite repeated request of the accused.
6. Further, Sh. Abhijeet Bhatnagar, Assistant Manager, Syndicate Bank, Rohini, Sector- 5 was examined as CW-2 after the application under Section 311 Cr. PC filed by the complainant was allowed vide order dated 28.08.2018.
CW-2 Sh. Abhijeet Bhatnagar, Assistant Manager, Syndicate Bank, Rohini, Sector-5 was examined and produced the summoned record i.e. returning memo dated 06.09.2014 regarding cheque no. 183432 of Rs. 9,00,000/- which was dishonoured due to "account closed" as exhibited as Ex. CW-2/1, photocopy of cheque Ex. CW-2/2, copy of cheque returning register dated 06.09.2014 Ex. CW-2/3 and account statement of Sh. Fateh Chand Aggarwal Ex. CW-2/4.
Digitally
signed by
SURPREET
SURPREET KAUR
KAUR Date:
2020.09.22
16:38:28
Fateh Chand v. Vikash Kumar CC No. 11160-2016 +0530 Page No. 4 of 25
7. On 10.02.2017, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused took the defence that he and his brother namely Sh. Sandeep Sirsiya had taken a loan of Rs.1,00,000/- from the complainant in the year 2007 and had issued 25 blank signed cheques to the complainant as security. He stated that he had repaid the said amount to the complainant in the year 2009. He stated that he had signed the loan agreement Ex. CW-1/1 without reading it on the instructions of the complainant. He admitted his signatures on agreement Ex. CW-1/1 at points A. He further stated that he had not taken any loan of Rs.8,50,000/- from the complainant. He stated that he had issued cheque in question to the complainant as security at the time of availing of loan. He admitted his signature on cheque in question and denied having filled in contents. He denied receiving of legal notice regarding the cheque in question. He admitted that legal notice bears his correct address. He stated that he demanded cheques from the complainant, however, the same were not returned to him. He stated that he had not filed any complaint against the complainant for returning the cheques. The cheque in question was presented without his permission.. The accused preferred to lead defence evidence.
8. In defence evidence, the accused examined only himself as DW-1. In examination in chief, he stated that complainant is the friend of his father and resided in the same vicinity and in the year 2007 his father was not keeping well hence he approached the complainant for a loan of Rs. 1,00,000/- for a period of two years. The complainant was into the business of money lending and he had given 25 blank singed cheques including the cheque in question to him as security. Complainant had given him Rs.1,00,000/-. The complainant also took his signatures on certain blank papers and told him that he would return blank signed papers as well as the cheques after repayment of loan i.e. after two years and he had returned the entire amount to the complainant in 2009. He submitted that his brother namely Sh. Sandeep Kumar and him paid instalments of approximately Rs. 5,100/- including interest from the years 2007-2009. The accused further stated that he had a counter foil Ex DW-1/1 (2 pages) (OSR) to show that all 25 cheques including the cheque in question were given to the complainant.
During cross-examination, he stated that he does not remember the exact amount returned to the complainant alongwith the interest. He further submitted that the complainant took 12% to 12 ½ % interest on the amount for 2 years and the instalment Digitally signed by Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET Page No. 5 of 25 SURPREET KAUR KAUR Date:
2020.09.22 16:38:47 +0530 was paid in cash. The accused further stated that he demanded receipt for the same from the complainant, however, it was never given to them. The accused stated that he did not file any police complaint against the complainant for not giving the receipt. He voluntarily stated that he did not file a complaint against the complainant because the complainant was a friend the of the father of the accused. The accused further stated that he did not file any police complaint against the complainant even after the filing of the present case and denied the suggestion that he has not done so because he did not return the amount to the complainant. The accused further stated that there was no witness to the amount returned to the complainant and voluntarily submitted that the accused used to pay the instalments at the shop of complainant. It was denied by the accused that neither him nor his brother had even given the signed cheques and blank signed papers to the complainant. The accused further denied the suggestion that he did not file any police complaint since no blank signed papers and cheques were given to the complainant. He further denied the suggestion that he is liable to pay the cheque amount and that the complainant has not misused the cheque in question. The accused was then shown a document Ex. DW-1/CW-1 (which was objected by the Ld. Counsel for the accused on the ground of relevancy) and accused stated that the document did not bear his signature at point A. He denied the suggestion that he was a habitual loan seeker and that he was deposing falsely.
9. Thereafter, final arguments were addressed on behalf of both the parties. It was submitted on behalf of the Ld. Counsel for the complainant that the complainant knew as well as had friendly relations with the accused and his brother through their father as the complainant and the father of the accused, both worked in Municipal Development Corporation. It was further submitted that all the evidence constituting the advance of loan by the complainant to the accused and his brother was on record including the loan agreement (Ex. CW-1/1) between the parties. It was further submitted by the Ld. Counsel for the Complainant that the loan agreement was infact typed by the accused and his brother since the complainant was not educated. Ld. Counsel for the complainant submitted that the loan was advanced by complainant with the money that he received after selling the mother dairy shop which he owned and did the same only because he believed accused needed the same. However, the goodwill of the complainant was taken advantage of by the accused as in order to not return the loan given by complainant, the accused shifted his place of residence and it was only after a few years, in 2014, that the Digitally signed by Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET Page No. 6 of 25 SURPREET KAUR KAUR Date:
2020.09.22 16:39:10 +0530 complainant was able to find the residence of accused by following accused's wife. It was further stated that only after several tries on behalf of the complainant, the accused finally handed over a cheque of Rs 9,00,000/- to complainant stating that the same was for the repayment of the loan and the same would be honoured. Ld. Counsel for the accused, on the other hand, submitted that the complainant was not a victim and was in fact a money lender who had given a loan amount of only Rs.1,00,000/- to the accused and his brother for the medical treatment of their father, all of which was duly paid back by the accused and his brother in the year 2009. However, the complainant had taken 25 blank cheques by the accused and his brother at the time of issuance of the loan and the same were not returned back to them despite asking. The complainant had then decided to misuse the blank cheques and had filed a false case against the accused and his brother. It was further submitted by Ld. Counsel for the accused that the complainant never furnished any proof of his financial ability to advance loan of the cheque amount. Ld. Counsel for the accused submitted that as per the evidence on record i.e. the pass book entry of the complainant for the year 2007 exhibited as Ex.CW-1/Z, the complainant had no resources to advance a huge amount as loan to the accused. It is also submitted by Ld. Counsel for the accused that if the complainant had signed the loan agreement with the accused, why was no security or receipt taken by the complainant with regard to the loan advance. Ld. Counsel for the accused also submitted that as per the complainant himself during his examination, the loan agreement was brought by the accused and his brother themselves who had already signed the agreement, therefore, the agreement is not valid to be relied upon since the agreement was already signed by the accused and his brother as stated by the complainant and not in the presence of the notary and witnesses. Further, the complainant never called the notary or the witnesses for evidence to verify the validity of the loan agreement. Ld. Counsel for the accused also submitted that as per the legal notice sent by the complainant, the complainant was in contact with the accused and his brother telephonically, however, the complainant never sent any notice or written communication to the accused with regard to payment of loan. Ld. Counsel for the accused then submitted that even if for a moment it is assumed that there was an actual personal loan transaction that occurred between the complainant and the accused and his brother, then as per the complainant, the loan was advanced by the complainant to accused and his brother in the year 2007, however, the cheque was handed over to the complainant only in year 2014 by which time the loan given in the year 2007 was already time barred. This implies that in year 2014, there was no subsisting liability between the Digitally signed Fateh Chand v. Vikash Kumar CC No. 11160-2016 by SURPREET KAUR Page No. 7 of 25 SURPREET Date:
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complainant and accused and his brother. Therefore, the cheque given to the complainant in the year 2014 was not issued in discharge, in whole or in part, of any legal debt or other liability. Hence, the present complaint is not valid.
Ld. Counsel for the complainant then advanced further arguments in response to the arguments advanced by the Ld. Counsel for the accused. It was submitted by Ld. Counsel for the complainant that the concept of time barred debt will not apply in the present case as the present case would fall under the exception mentioned under section 25(3) of Indian Contract Act. Further, as per the loan agreement, the amount due was to be paid in 90 instalments and the last instalment was due in March 2015. Therefore, the limitation would be considered to be subsisting in year 2014.
In rebuttal, Ld. Counsel for the accused submitted that the limitation for the loan advanced would be counted from the date when the loan was advanced and not when the time period of all the instalments ended. Further, even if one assumes that the limitation of the given loan is to be counted from the date of payment of last instalment as per the loan agreement, even then the present case is bound to be dismissed because then there was no legal liability to be discharged in pursuance of which the cheque in question was handed over in the year 2014 since the last instalment was due somewhere in the year 2015.
Ld. Counsel for the accused relied upon the Judgments : M/s. Jage Ram Karan Singh & Anr. v. State & Anr. [2019 SCC OnLine Del 9486].
9486]., John K Abraham v. Simon C Abraham & Anr. [2014 (2) SCC 236], Shiva Murthy v. Amruthraj [2008 (6) AIRKarR 432] and K Subramani v. K Damodara Naidu [2015 (1) SCC 99].
Ld. Counsel for the complainant relied upon the judgments: Manjit Singh v. S.K. Mehto & Co. [Crl. M.C. No. 990 of 2013] & Nitin Aggarwal v. Praveen Sharma [2018 SCC OnLine Del 12361]:
12361]
10. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
Digitally
signed by
SURPREET
SURPREET KAUR
KAUR Date:
2020.09.22
16:39:49
Fateh Chand v. Vikash Kumar CC No. 11160-2016 +0530 Page No. 8 of 25
11. The present case even though on surface seems to be a regular cheque transaction matter under Section 138 NI Act between the complainant and accused as well as his brother as alleged. However in actuality, it raises two essential issues that have been put before this court. The first issue relates to a more complex problem of time barred debt. It has been alleged at the stage of final arguments by the Ld. Counsel for the accused that the present complaint is not valid in itself as the cheque given to the complainant was issued for a time barred debt which implies that cheque given to the complainant was not issued to discharge any persisting legal debt making the present proceedings void now. The second issue that has to be determined by this court is with regard to the fact that whether the complainant has actually been able to prove his case under Section 138 NI Act when there has been no source of income provided by the complainant and in the light of the same, the accused is entitled to get the benefit of doubt and is liable to be acquitted. The court will deal with all these issues raised by the parties, one by one starting with issue that raises the contentions that present complaint is not valid in itself that there was no persisting legal debt at the time of issuance of cheque.
At the outset, it is pertinent to mention that though the accused and his brother Sh. Sandeep Sisiriya took loan from the complainant collectively as alleged, however separate cheques of separate amounts were issued by both the accused and Sh. Sandeep Sisiriya. Accordingly, the matter pertaining to the cheque given by Sh. Sandeep Sisiriya to the complainant was filed separately, hence, also decided separately.
ISSUE- 1 Whether the present complaint relates to a time barred debt?
debt?
12. It has been alleged by the Ld. Counsel for the accused that as per the submissions of the complainant himself the loan was advanced by the complainant to the accused and his brother in 2007, however cheque was handed over to the complainant only in the year 2014. It is the submission of the Ld. Counsel for the accused that the loan given in the year 2007 was already time barred at the time when the cheque was handed over to the complainant thereby implying that the cheque was not issued in discharging any persisting legal liability. It has been further alleged by the Ld. Counsel for the accused that time and again through various judgment of Hon'ble High Courts and Hon'ble Supreme Court of India it has been proved that in case a cheque has been handed over in discharge of a time barred debt it will not invite penal provisions under Section 138 NI Act. Ld. Counsel Digitally signed by SURPREET KAUR SURPREET Date: KAUR 2020.09.22 Fateh Chand v. Vikash Kumar CC No. 11160-2016 16:40:20 Page No. 9 of 25 +0530 for accused further relied upon the judgment titled M/s Jage Ram Karan Singh & Anr. Vs. State & Anr. [Supra].
13. This court after going through the arguments presented and the evidence filed by both the parties decided to approach the present issue from two sides the first one being whether a cheque issued in discharge of a time barred debt is valid under the provision of under Section 138 NI Act or not and the second being whether the friendly loan advanced by the complainant to the accused and his brother was infact a time barred loan. The judgment M/s Jage Ram Karan Singh & Anr. Vs. State & Anr. (supra) relied upon by the Ld. Counsel of the accused states that any cheque issued against a liability that was time barred as on date of issuance of cheque cannot said to have been issued in discharge of a legally enforceable debt or liability. The judgment at length discusses as to what would constitute of a "legally enforceable debt" and the importance of the Section 18 of Limitation Act, 1963 i.e. the fact of acknowledgement in writing for a time barred debt. The judgment goes on to state that mere issuance of cheque after prescribed period of limitation of the debt does not constitute a valid acknowledgement under Section 18 of Limitation Act. Hence, the presumption contained in the Section 139 NI Act that the cheque has been issued for the discharge of a debt or liability stands rebutted in such cases. However, a careful review of the judgment reveals that the judgment stands silent on the effect of Section 25(3) Indian Contract Act, 1872 in a matter pertaining to issuance of cheque for a time barred debt.
14. In the matter of Suresh Kumar Joon Vs. Mool Chand Motors & Ors. [2012 SCC OnLine Del 4303] an issue was raised as to whether a dishonoured cheque can be said to be a promise made to pay the amount of cheque to the payee of the cheque.
Before we proceed ahead it is essential to take note of Section 25(3) Indian Contract Act, 1872:
"25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.--An agreement made without consideration is void, unless-- --An agreement made without consideration is void, unless--Digitally signed by SURPREET
SURPREET KAUR Fateh Chand v. Vikash Kumar CC No. 11160-2016 KAUR Date: Page No. 10 of 25 2020.09.22 16:40:43 +0530 .............(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract......."
As per the order in Suresh Kumar Joon Vs. Mool Chand Motors & Ors [Supra], it was held that even though a cheque does not containing an express promise in writing to pay the amount of cheque to the payee the same is not necessary to fulfil the requirement under 25(3) Indian Contract Act, 1872 as according to Section 9 of the Contract Act the promise can be expressed or implied. It was also asserted that when a debtor issues a cheque to payee he makes an implied promise to the payee to pay the amount of cheque being issued by him and the fact that the cheque was issued towards a time barred debt would not release the debtor from his responsibility to honour the issued cheque. It was further held that:
"8.
"8. .........In my view, when a debtor issues a cheque to his creditor, he makes an implied promise to him to pay the amount of the cheque being issued by him. It is only towards fulfilment of that such promise that a cheque is issued by the debtor to the creditor. Once it is alleged that the relationship between the parties was that of debtor and a creditor and it is further alleged that the cheque was issued by the debtor to the creditor, it would be difficult to dispute that a cheque contains an implied promise, in writing, to pay the amount of the cheque. Since, even a time- barred debt is saved by Section 25(3) of the Indian Contract Act, 1872, the issuance of a cheque towards repayment of a time-barred debt constitutes a contract within the meaning of Section 25(3) of the Indian Contract Act, 1872.
9 In taking this view, I find support from the decision of the Kerala High Court in Ramakrishnan v. Parthasaradhy [2003 (2) KLT 613] and the decision of Karnataka High Court in Adivelu (dead by L.Rs) v. Narayanchari [2005 (2) CLT 17 (kar]. In the case before the Kerala Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 11 of 25 KAUR Date:
2020.09.22 16:41:09 +0530 High Court, the Division Bench of the High Court, inter alia, observed and held as under:
"13......It is, undoubtedly, true that 'to draw' means to write and sign. However, even if the claim is barred by limitation on the date of the drawing of the cheque, on delivery to the other person, it becomes a valid consideration for another agreement.
Xxxx
15........It may, however, be mentioned that under Section 25(3), a promise can be made even in a case where the limitation for recovery of the amount has already expired.
Such a promise has to be in writing. It can be in the form of a cheque...."
In the case before the Karnataka High Court, the High Court while examining the provisions of Section 25(3) of the Indian Contract Act, inter alia, observed and held as under:
"16. But, when the word 'promise', defined in Section 2(b) besides Section 9 of the Act are kept in mind with the decision of the Supreme Court in the case of Shapoor Freedom Mazda (supra) wherein it is held that an admission could be 'express' or 'implied', 'promise' covered by Section 25(3) of the Act, need not be 'express'. If the legislature had intended that such promise should be an 'express promise' only, it would have indicated so but the word 'express' is not found in Section 25(3) of the Act. So, it would not be proper to read so and restrict the scope of Section 25(3) of the Act to "express promise' only..."
10. The learned counsel for the plaintiff in support of his contentions has relied upon the decision of Madras High Court in A.R.M. Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 12 of 25 KAUR Date:
2020.09.22 16:41:38 +0530 Nizmathuallah v. Vaduganathan [2008 Crl.L.J. 880], wherein the High Court of Madras, inter alia, observed and held as under:
"8. In view of Section 25(3) of the Act, when a debt has become barred by limitation, a written promise to pay, furnishes a fresh cause of action. Section 25(3) of the Act in substance does is not a revive a dead right, resuscitate the right is never dead at any time, but to? the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legality enforceable debt, as contemplated by the explanation under Section 138 of the Act. In view of the Illustration (e), the cheque becomes a promise made in writing, to pay under Section 25(3) of the Act"
11. Similar view was taken by the Kerala High Court in Gopinathan v. Sivadasan [2006 (4) KLT 779], wherein the Court, inter alia, held as under:
"8. Even assuming it to be time barred, when the cheque is written and signed, there is a promise to pay the amount to the payee, through the drawee of course. Such promise, even if the liability is barred, is valid and enforceable under law in view of Section 25(3) of the Contract Act. Thereafter, when the delivery takes place, the drawal is completed. Such cheque drawn is issued for the discharge of a liability, which is promised under the cheque itself. That being so, I do not find any reason to refer the matter to a Division Bench for further consideration. The argument of the learned Counsel for the petitioner that there must be another agreement - other than the cheque - in order to reckon the promise in the cheque to be a valid agreement for the purpose of Section 25(3) cannot obviously be accepted. The promise made in the cheque is an enforceable Digitally signed by SURPREET KAUR SURPREET Date: Fateh Chand v. Vikash Kumar CC No. 11160-2016 KAUR 2020.09.22 Page No. 13 of 25 16:41:51 +0530 agreement as is directed in Section 25(3) of the Contract Act....."
In view of the judgments considered one can arrive at the conclusion that the cheque issued against time barred cheque also constitutes a contract for the purpose of under Section 25(3) Indian Contract Act, 1872. This court believes that the contract constituted under Section 25(3) Indian Contract Act, 1872 constitutes a valid and legally enforceable debt as required under Section 138 NI Act.
15. However, even if the court relied on the judgment M/s. Jage Ram Karan Singh & Anr. v. State & Anr. [Supra], the present matter still does not fall within the preview of this judgment as the judgment categorically states that in the absence of any written acknowledgement during the limitation period of the debt, the debt becomes time barred and the cheque issued would not attract the penal provision under Section 138 of NI Act. This bring us to the issue whether the debt in the present matter was in fact time barred or not. Contentions has been raised by Ld. Counsel for the accused that in the present matter the cheque was issued against the time barred debt since the cheque in the present matter was issued in 2014, way beyond the limitation period of the loan and hence there was no existing legal liability in the year 2014 when the cheque was given to the complainant. However, the complainant relied upon a written agreement Ex. CW-1/1 dated 24.09.2007 entered by the complainant as well as the accused and his brother carrying the signatures of both the parties. The agreement stated that the complainant had advanced a sum of Rs. 8,50,000/- to the accused and his brother in cash. The agreement further stated that the accused and his brother were to return the loan amount in cash in 90 instalments for a sum of Rs. 15,000/- each per month with interest which implied that the agreement was bound to be valid for approximately next seven years, i.e. until 2015. It is pertinent to mention here that the accused has admitted his signatures on the agreement and the validity of the agreement has been called in question by the Ld. Counsel for the accused at the time of cross examination of the complainant only pertaining to the fact that the agreement was not signed by the parties and witnesses before a notary. It was also argued by the Ld. counsel for accused that since the complainant did not bring the witnesses to the agreement on record, the agreement cannot be deemed valid. However, Ld. counsel for accused failed to appreciate that the burden of proof to show the invalidity of the agreement was on the accused since he had already admitted signing the Digitally signed Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET by SURPREET KAUR Page No. 14 of 25 KAUR Date: 2020.09.22 16:42:06 +0530 agreement and was now disputing the same. Further, even if one assumes that the agreement was not valid due to the flawed procedure of execution followed by the parties, the agreement could still be used for secondary purpose as a written acknowledgement with the signatures of the accused and his brother. Hence, this court believes that reliance on the agreement Ex CW-1/1 and its terms, especially for the purpose of limitation, stands justified making the debt in the present matter not time barred and reliance on the judgment M/s. Jage Ram Karan Singh & Anr. v. State & Anr. is not correct.
16. Further, it has been contested by the Ld. Counsel for the accused that even if one agreed to the terms mentioned in the agreement EX CW-1/1, the period covering 90 instalments of Rs. 15,000/- each month from October 2007 expired somewhere in 2015 and therefore, in when the cheque was handed over to the complainant in 2014 no cause of action existed since the cause of arose in 2015 when the time period for the payment of instalments ended. The court believes that the submission of Ld. counsel for accused in this regard is erroneous. Reliance can be placed on Phoenix Arc Pvt Ltd vs M/S Ved Prakash Nand Lal & Co. and Ors. (OA No. 480/2015) (decided on 04.07.2019) that held as follows:
"Hon'ble High Court of Delhi in the case of Kotak Mahindra Bank Vs. Anuj Kumar Tyagi, [RFA No. 56/2014] while dealing a matter on limitation in a case of EMI has held that:
"The right to sue would occur, in my opinion, each time when, there is a default in payment of an EMI on its due date. The appellant in terms of clause 48 is, however, at liberty to take a decision to treat the non-payment of a particular EMI, as an event of default. The period of limitation would, though, commence from the date of the last defaulted EMI, which is made the subject matter of the notice and not from the date of the notice itself. Therefore, in such a situation, Article 113 of the 1963 Act would become applicable as against Article 55."
Further, The Limitation Act provides for limitation period of three years on a Demand Promissory Note to commence on Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 15 of 25 KAUR Date:
2020.09.22 16:42:18 +0530 default and in case of consecutive instalments not being paid, it is a continuing default. In the instant case, the last instalment was due on 05.05.2013 and it being a case of continuing default for all the instalments falling due earlier and not paid the period of limitation shall start on 05.05.2013. The present OA has been filed on 27.11.2015 and is thus within the period of limitation."
17. It is evident from the referred precedents and facts of the present matter that in an loan agreement that refers to the recovery of the loan amount through instalments, the limitation for such a loan does not begin when the loan is advanced and instead when there is a default in the payment of an instalment. Further, a case of non-payment of consecutive instalments makes it a continuing default with a new cause of action arising with each default. Hence, the limitation in such circumstances continues with each case of default giving rise to a fresh limitation. With due consideration to the law and the facts of the present case, it is evident that the limitation for the loan advanced by the complainant continued for the entire duration of the agreement with each default giving rise to a new cause of action. In such a scenario, a cheque provided by the accused to the complainant in 2014 will be said to have been issued in discharge of a legal liability that existed and was continuing till that date bringing the same under the scope of section 138 of Negotiable Instruments Act.
Issue 2- Whether the complainant has been able to prove his case in accordance with section 138 NI Act?
18. The next issue for consideration before this court relates to whether the complainant was infact able to prove his case under Section 138 Negotiable Instruments Act. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability. Digitally signed by SURPREET KAUR Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET Date: Page No. 16 of 25 KAUR 2020.09.22 16:42:31 +0530
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
19. The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - 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;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
20. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 17 of 25 KAUR Date:
2020.09.22 16:42:45 +0530 a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
21. This Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35 had occasion to consider Section 118(a) of the Act. This Court held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that the execution is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No.12 following has been laid down:-
"12. Upon consideration of various judgments as noted here-in-above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence.
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Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
22. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
23. In other judgment reported as Rohitbhai Jivanlal Patel v. State of Gujarat and Another this Court held as under:
"20. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of rebuttal as 8 AIR 2019 SC 1876 envisaged under Section 118 and 139 of the NI Act."
24. Coming to the facts of the present case. It has been alleged by the complainant that he advanced a sum of Rs. 8,50,000/- in cash to the accused and his brother after entering into a loan agreement Ex CW-1/1 dated 24.09.2007 as he knew the accused and his brother through their father. Further, as per clause (2) of the agreement, the accused and Digitally signed Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET by SURPREET KAUR Page No. 19 of 25 KAUR Date: 2020.09.22 16:43:52 +0530 his brother were to return the loan amount in monthly instalments of Rs. 15,000/- including interest within a period of 90 months i.e. the accused and his brother were liable to pay back Rs. 13,50,000/- in total together with interest. It is further alleged by the complainant that the accused and his brother did not pay back a single instalment despite repeated requests of the complainant and instead changed their address without informing the accused. It was only in 2014 that the complainant came to know of the new address of the accused after he followed the wife of the accused. It was in 2014 that the complainant was handed over a cheque of Rs.9,00,000/-by the accused which was eventually dishonoured. On the other hand it was alleged by the accused that the complainant was a money lender and had infact only advanced a loan of Rs. 1,00,000/- to accused for the medical expenses of his father. The loan was duly paid back to the complainant by the accused and his brother from 2007 to 2009 in instalments of Rs. 5,100/-. It was further alleged by the accused that the complainant at the time of advancing the loan had taken 25 blank cheques from the accused and his brother and has misused the same.
25. In the present case, the accused has admitted in the notice under Section 251 Cr.P.C. that the cheque in question bears his signature and he issued the same in favour of the complainant. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
26. It is now well settled as evident by plethora of judgments that the presumption raised under Sections 118(a) & 139 of the Act is a rebuttable presumption and the accused need not come into the witness box or produce a strong proof to rebut the presumption as the rebuttal can be achieved through preponderance of probabilities unlike the complainant. However, a mere submission that the case presented by the complainant is false and that the cheques of the accused have been misused by the complainant is not enough without any evidence of the rebuttal presented on record. Mere denial without any corroborative evidence would not deprive the complainant of the benefit bestowed on him under the special provisions of this Act. It means that in the present case the onus is upon Digitally signed by SURPREET KAUR Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET Date:
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the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was given by him to the complainant as security cheque is not sufficient to rebut the presumption.
27. In the present case, the complainant chose to rely upon the loan agreement Ex CW-1/1 that stated explicitly that an amount of Rs. 8,50,000/- was advanced by the complainant to the accused and his brother and the latter undertook to return the same along with interest over a period of 90 monthly instalments amounting to Rs.13,50,000/- with interest. It has been submitted by the accused a total of 25 blank signed cheques were taken by the complainant and has placed on record a counter foil Ex DW-1/1 as proof however, the proof consists of only a slip for request of a new cheque book in the name of accused with a second page stating the entries of cheque numbers along with the endorsement that the same have been given to one Lalaji. However, it is pertinent to note here that the slip in itself cannot serve as a proof for the defence. There is no date or signatures mentioned in the slip providing any information as to whether the cheques were given to one Lalaji in 2007 as alleged by the accused and there is no indication throughout the trial that the complainant is known as Lalaji and merely an indication pointing certain cheques to one Lalaji without any corroboration do not proof anything and definitely do not rebut the presumption in favour of the complainant under section 118(a) and 139 NI Act. During the statement of the accused under section 281 Cr. PC read with section 313 Cr. PC, it was stated by the accused that the signatures at point A in Ex CW-1/1 are his, however he signed the agreement without reading it at the instructions of the complainant. However, one has to wonder as to why there is no mention of accused giving away 25 blank signed cheques to the complainant anywhere in the agreement signed by the parties. Even if one assumes the version of the accused to be true that the accused signed the agreement at the behest of the complainant, one fails to understand as to why the accused never requested to mention this important fact of 25 blank security cheques to be added or indicated in the agreement. Further another similar loan agreement with signatures of accused was presented by the complainant and the same is part of the record as Ex.CW-1/DW-1. During the cross examination of accused, when he was confronted with Ex.CW-1/DW-1, he submitted that the signatures on the agreement were not his however, an ephemeral and ocular comparison of both the Ex. CW-1/DW-1 and the present cheque in question (where the accused has admitted his signatures) shows the signature of the accused and by not acknowledging the same in the absence of any Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 21 of 25 KAUR Date:
2020.09.22 16:44:27 +0530 proof presented to the contrary, this court would grant an undue advantage to the accused. During the confrontation of the accused with the Ex.CW-1/DW-1, the same was objected to by the Ld. Counsel for the accused on the grounds of relevancy, however the same was relevant in corroborating the submissions advanced by the complainant with respect to the relevancy of agreement Ex. CW-1/1. It is also pertinent to mention here that it was submitted by the complainant during his cross examination that he was not educated and the same has not been disputed by the accused throughout the trial. In such circumstances, this court believes that the possibility that the loan agreement was drafted by or at behest of the complainant and that the accused simply signed the agreement at the instructions of the complainant without reading the same seems highly improbable. It is further the defence of the accused that there never was a loan of the amount of Rs.8,50,000/-. Instead, the accused and his brother took a loan of the amount of Rs.1,00,000/- from the complainant and the same was paid back to the complainant during 2007-2009 with monthly instalments of Rs.5,100/-. However, no proof of the same has been produced by the accused. Further, it is also submitted by the accused that the complainant never returned back his cheques despite him asking the complainant several times, however the accused and his brother never filed any complainant against the complainant in regard to the same. It is also pertinent to mention that the fact that the complainant does not remember the exact date as to when the loan was advanced to the accused and certain other minor details is not fatal to the case of the complainant as it is understandable that the complainant is a senior citizen (more than 80 years old) and due to his advanced age as well as the huge time gap between the period of loan advanced and litigation, the complainant might not be able to recall everything.
28. In a negotiable instruments case, onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely taking a bald plea by stating that the cheques in question were given by him to the complainant as token cheques without the same being corroborated by any evidence is not sufficient to rebut the presumption.
29. Ld. Counsel for the accused also took a stand that there was no evidence placed on record that proved the financial capability of the complainant to advance the loan of the amount in question to the accused. Infact, the documents produced by the complainant reinforce the argument presented by the Ld. Counsel for the accused that the complainant Digitally signed by SURPREET Fateh Chand v. Vikash Kumar CC No. 11160-2016 SURPREET KAUR Page No. 22 of 25 KAUR Date:
2020.09.22 16:44:41 +0530 did not have the financial capacity to advance the loan to the accused. It was also submitted that the complainant never submitted any documents with regard to the sale of the dairy. The Ld. Counsel for the accused has relied upon the judgments of John K Abraham v. Simon C Abraham & Anr. [2014 (2) SCC 236], Shiva Murthy v. Amruthraj [2008 (6) AIRKarR 432] and K Subramani v. K Damodara Naidu [2015 (1) SCC 99]. It is pertinent to mention here that the judgments relied by the Ld Counsel for the accused do not come to the aid of the accused as the judgments differ from the present case on factual grounds and applicability of the relevant law. Judgment of K Subramani v. K Damodara Naidu particularly related to the case where the complainant was a government servant. John K Abraham v. Simon C Abraham & Anr. related to the case where there was no other proof of the transaction apart from the cheque issued. However, in the present matter, it has been consistently stated by the complainant throughout the trial that he advanced the loan from the money he received after selling his dairy shop and not from his savings. Further, the complainant was never asked to produce the documents of sale of his dairy shop throughout the trial. Complainant also has provided an agreement Ex CW-1/1 that states the fact that an amount of Rs.8,50,000/- in cash was advanced by the complainant to the accused and his brother. The complainant in the present matter has advanced a separate documentary proof namely the loan agreement apart from the cheque in question that clearly states the transaction that took place between the complainant and accused. This court believes that the fact that the complainant has placed a loan agreement on record that patently states that the complainant advanced loan to the accused alongwith admitted signatures of the accused makes the present case prima facie distinguishable from the cases discussed in the judgments submitted by the Ld. Counsel for the accused. Further, the factum of the loan agreement with admitted signatures of the accused also relieves the complainant from the burden of proving the sources of funds. The accused has not been able to rebut the agreement and thus, in my view there is no need for the complainant to prove his financial capacity through the source of funds in the present matter.
Further, failure to disclose the loan in the ITRs and non filing of documents are not fatal to the case of the complainant. For this, reliance be placed on Nitin Aggarwal vs Praveen Sharma [Supra]:Digitally signed by SURPREET KAUR
SURPREET Date: KAUR 2020.09.22 16:44:58 +0530 Fateh Chand v. Vikash Kumar CC No. 11160-2016 Page No. 23 of 25 "10. .....I would also like to give an additional reason, that besides the fact that the case under Section 138 of the N.I. Act is pending, in view of the provision of Section 118 of the N.I. Act there is a presumption of cheque being given for consideration and a person who takes a loan and gives his cheque to secure the loan, cannot argue that the respondent/plaintiff who gave the loan must prove that he had the financial capacity to give the loan. In any case, the respondent/plaintiff has stated in the cross-examination in the case under Section 138 of N.I. Act that he had arranged amount by himself and also that he borrowed some amounts from his father and a close friend, and which in my opinion is sufficient justification for the respondent/plaintiff to have moneys for being granted as a loan to the appellant/defendant....."
Further, in Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897] it was held that :
"24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.".
30. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
Thus, the bald plea of the accused having not been substantiated by cogent evidence would not be sufficient to rebut the presumption of law against him.
31. In view of the above, this court is of the considered opinion that in the present case the accused has failed to rebut the presumption in favour of the complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
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32. The complainant has proved his case beyond reasonable doubt, therefore accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
33. Let the accused be heard on the quantum of sentence.
34. Copy of the judgment be supplied to the accused free of costs.
Digitally signed by SURPREET SURPREET KAUR
KAUR Date:
2020.09.22
16:45:26 +0530
ANNOUNCED IN THE OPEN COURT (SURPREET KAUR)
TODAY i.e. 22.09.2020 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS
DELHI
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