Delhi District Court
Cnr No.Dlsw02-064277-2019 Ram Niwas ... vs Vivek Malik Page 1 Of 16 on 27 April, 2023
IN THE COURT OF MS. JYOTI NAIN
METROPOLITAN MAGISTRATE (SOUTH WEST)
N I ACT-10, DWARKA DISTRICT COURT : NEW DELHI
CC NO:45417/2019
CNR no.DLSW02-064277-2019
Ram Niwas Chaudhary,
S/o Late Sh. Hoshiyar Singh,
R/o Flat No.601, Block-A,
Golf Link Residency,
Sector 18B, Dwarka, New Delhi.
.....Complainant
Versus
Vivek Malik,
S/o Late Sh. Jagbir Singh Malik,
R/o Rama Vihar Colony,
Gali No.1, near Rohta Bypass,
District Meerut,
Uttar Pradesh-250001.
Also at:
Village & Post Office Sunna,
Bari Bargaria, District Shamli,
Uttar Pradesh-247755.
.......Accused
Offence Complained of or proved : U/s 138 of Negotiable
Instruments Act,
1881
Plea of the Accused : Pleaded not guilty
Date of filing : 19.12.2019
Date of Institution : 20.12.2019
Date of reserving judgment/order : 12.04.2023
Final Order/Judgment : Conviction
Date of pronouncement : 27.04.2023
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 1 of 16 Jyoti Digitally signed by Jyoti Nain Date: 2023.04.27 Nain 16:24:37 +0530 the complainant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act ').
2. Briefly stated, case of the complainant is that accused is the brother in law of the complainant and was taking personal loans from the complainant from time to time. That the accused took a personal loan of Rs.3,00,000/- in cash from the complainant and promised to return the same on or before 06.11.2019. That in order to discharge the liability of Rs.3,00,000/-, accused issued a cheque bearing no.794103 dated 06.11.2019 for a sum of Rs.3,00,000/ drawn on Punjab National Bank, Kandhla, Shamli, Uttar Pradesh247775 (hereinafter referred to as cheque in question), with assurance that the same would be honored on its presentation.
That the complainant presented the cheque in question with its banker but the same was dishonored with remarks "Account closed" vide return memo dated 14.11.2019. That thereafter, the complainant sent a legal demand notice dated 19.11.2019 through Speed Post demanding payment of the cheque amount within 15 days of the receipt of notice, but instead of making payment, accused sent a reply wherein he concocted a false story and denied his liability. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881.
3. On 20.12.2019, pre-summoning evidence was led by the complainant and in his pre-summoning evidence, he examined himself on affidavit Ex.CW1/A. He reiterated the contents of complaint and placed on record following documents:-
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(i) Original cheque is Ex.CW1/1;
(ii) Bank Return Memo is Ex.CW1/2;
(iii) Legal notice is Ex.CW1/3;
(iv) Original postal receipts are Ex.CW1/4 (colly);
(v) Tracking report is Ex.CW1/5 (colly) and
(vi) Reply to legal notice is Ex.CW1/6.
4. Upon appreciation of pre-summoning evidence,
cognizance of offence under section 138 of The Negotiable Instruments act was taken and summons were issued to the accused. On 27.06.2022, notice was served on the accused, to which he pleaded not guilty and claimed trial. Accused admitted his signatures on the cheque in question but denied filling in rest of the particulars. He also admitted receiving of legal demand notice. Further, in his defence, accused stated as under:-
"I had taken a loan of Rs.7,00,000/ from the complainant in 2016, out of which Rs. 4,00,000/ were transferred in my account in July, 2016 and Rs. 3,00,000/ were given in cash. At that time only, complainant had taken around 1015 blank signed check of mine. I have already repaid the aforesaid loan amount of Rs. 7,00,000/ in the year 2017. On 13th October, 2017, I had transferred a sum of Rs. 5,00,000/ in the account of complainant via NEFT and also on 1st November, 2017, again I transferred a sum of Rs. 1,80,000/ in the account of complainant via NEFT. Rupees 30,000/ were given to the complainant by way of cheque. I do not owe any liability towards the complainant. Complainant has misused my cheque ".
5. Complainant evidence:
CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 3 of 16 Digitally signed by Jyoti NainJyoti Nain Date: 2023.04.27 16:25:11 +0530 Thereafter, vide order dated 23.09.2022, application u/sec 145(2) NI Act to cross-examine the complainant was allowed. In complainant's evidence, complainant examined himself as CW1. He was subjected to cross-examination at length by Ld. Counsel for the accused. No other complainant witness examined and vide separate statement complainant closed his evidence on 16.01.2023.
6. Examination of the accused under section 313 Cr.P.C.:
Thereafter, the accused was examined under section 313 Cr. P.C. by the court on 16.01.2023 wherein he stated following in his defence:-
"It is correct that complainant is my brother in law (jija). I have not taken Rs.3,00,000/- from the complainant rather I had taken Rs.7,00,000/- to purchase a house. At that time only, I had given around 10-15 blank signed cheques to the complainant. I have already repaid Rs.7,00,000/- i.e. the principle amount and have also paid interest of around Rs.3,00,000/- to the complainant. On repaying the entire loan amount with interest, when I asked my sister to return back my cheques then on one pretext or the other, complainant along with my sister avoided returning the same. Dishonor of cheque is a matter of record. I did receive the legal notice and also replied to the same. The complainant has fraudulently misused the cheque in question. ".
Further, accused preferred leading defence evidence.
7. Defence Evidence:
Thereafter, accused moved an application for examining Smt. Brijesh Chaudhary as defence witness. The application was Digitally signed by Jyoti Jyoti Nain Date:CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 4 of 16
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allowed but thereafter, accused chose not to examine her and vide separate statement, ld. Counsel for accused closed defence evidence on behalf of the accused and the matter was listed for final arguments.
8. Arguments, Law Applicable and Appreciation of Evidence:
I have perused the entire record as well as evidence led by the complainant as well as by the accused and heard final arguments on behalf of both the parties at length. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed while appreciating the evidence on record:-
For the offence under Section 138 the Act to be made out against the accused, the complainant must prove the following ingredients, that:-
(i) the accused issued a cheque on account maintained by him with a bank and 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.
(ii) the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
(iii) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(iv) 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.
(v) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Digitally signed by Jyoti Jyoti Nain Date:
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9. Out of these five ingredients, accused has raised objections qua the second ingredient only. As far as the contention regarding this ingredient is concerned, the N I Act, itself 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 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: "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".
10. Thus, for the offence under Section 138 of the Act, the presumptions under Section 118 (a) and 139 have to be compulsorily 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 be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge Digitally signed by Jyoti Jyoti Nain Date:
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of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Section 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].
11. In order to rebut the presumption u/sec 139 NI Act, Ld. Counsel for accused argued that the complainant did not come before this court with clean hands and concealed truth and material facts from it. That the real issue was that complainant gave a loan of Rs.7,00,000/ to the accused but has already received more than Rs.7,00,000/ from him. That the complainant has misused the cheque in question. That the accused has admitted receiving of a loan of Rs.7,00,000/ from the complainant. Out of this Rs.7,00,000/, Rs.4,00,000/ were received through bank account transfer and Rs.3,00,000/ were received in cash. That it has been disclosed by the complainant in his crossexamination dated 07.10.2022 that the cash amount was given to the accused in old currency notes, meaning thereby, the loan was given prior to 08.11.2016 i.e. the date of demonetization. That complainant admitted that he had told the aforesaid fact to his counsel but surprisingly same does not find mention in his complaint of affidavit.
That even if it is presumed that the loan was advanced, it was advanced prior to the demonetization as admitted by the complainant in his crossexamination dated 07.10.2022.
Jyoti That it is admitted by the complainant in his cross Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 7 of 16 by Jyoti Nain Date: 2023.04.27 16:26:24 +0530 examination dated 16.01.2023 that the cheque of Rs.40,000/ was filled up by his wife and the same corroborates the defence of accused since, accused has taken defence that 1015 blank cheques were taken by the complainant from him and this cheque of Rs.40,000/ is one of those.
That the complainant gave an evasive answer regarding the encashment of accused's cheque of Rs.30,000/ by him. That this was the reason, the accused closed his bank account as his real sister and brother in law were misusing those cheques without his consent despite receiving entire loan amount.
That as per the complainant, cheque in question was given to him on 06.05.2019 but the cheques of Rs.30,000/ and Rs.40,000/ were encashed by him and his wife much prior to 06.05.2019, thus, it is clear that all the cheques were obtained by him in 2016 when loan of Rs.7,00,000/ was given.
That the complainant claimed in his complaint that some transactions were done through bank account but intentionally did not produce such documents/ evidence in court, however, complainant was confronted by accused's statement of account during his crossexamination.
12. Percontra, Ld. Counsel for complainant argued that accused has failed to rebut the presumption u/sec 139 NI Act in favour of the complainant. That in reply to the legal demand notice, accused has categorically admitted that he took a loan of Rs.3,00,000/ as hath udhar from complainant to meet his need for a short period of time and promised to return the same on or Jyoti Nain CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 8 of 16 Digitally signed by Jyoti Nain Date:
2023.04.27 16:26:36 +0530 before 06.11.2019 with interest. That the accused alleged that the complainant got some cheques signed by him. Accused admitted that he had repaid Rs.5,00,000/ through RTGS on 16.10.2017 via cheque bearing no.794106 and demanded back his cheques. The accused also alleged that the complainant did not return the said cheques. Accused stated in his reply that complainant demanded a loan of Rs.1,80,000/ from him and thus, he got a sum of Rs.1,80,000/ transferred in the account of complainant through one Sanat Kumar and that the complainant promised to repay the loan on or before 06.09.2019. Accused alleged that the complainant with ill will tried to retain the alleged cheques with him for getting undue benefit and for creating a pressure for not returning Rs.1,80,000/. That the accused also wanted the complainant to return Rs.1,80,000/ within ten days of the receipt of reply to the demand notice and also to return the cheques otherwise, he will take legal action against the complainant.
That at the stage of framing of notice u/sec 251 CrPC, accused took contradictory stand to what he had taken in reply to the legal demand notice and fabricated a new story of taking a loan of Rs.7,00,000/ and repayment of Rs.5,00,000/ through NEFT, Rs.1,80,000/ through NEFT and Rs.30,000/ by way of cheque, thus, returning a total sum of Rs.7,10,000/. Ld. Counsel for complainant argued that the reality is that the accused had taken various loans from the complainant from time to time and the payment that the accused made to the complainant was for the previous loans. That the accused tried to mislead the court by connecting past transactions with the loan of Rs.3,00,000/.
Jyoti Nain CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 9 of 16 Digitally signed by Jyoti Nain Date: 2023.04.27 16:26:47 +0530 That the accused alleged that the complainant took 1015 blank signed cheques from him but it is strange that the accused did not file any complaint before bank or police.
That during examination u/sec 313 CrPC, accused stated that he had already repaid Rs.7,00,000/ to the complainant and had also paid an interest of Rs.3,00,000/. That the accused could not prove payment of Rs.3,00,000/ to the complainant as interest. That during crossexamination of complainant, suggestion was given to him that he took 1012 blank signed cheques from the accused. That there is contradiction in the number of cheques allegedly given to the complainant. In reply to the legal demand notice and notice framed u/sec 251 CrPC, 1015 cheques are stated to be given to the complainant.
That in reply to the legal demand notice, accused has talked about granting loan of Rs.1,80,000/ to the complainant through one Sanat Kumar but in defence to the notice sent u/sec 251 CrPC, accused has stated that Rs. 1,80,000/ were transferred in the account of the complainant as part payment towards loan of Rs. 7,00,000/.
That the accused did not question the complainant regarding loan of Rs.3,00,000/ to the complainant and no single suggestion was given to the complainant with respect to this loan amount.
That during his crossexamination, complainant admitted receiving of three cheques from the accused in the year 2016 and Jyoti Nain CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 10 of 16 Digitally signed by Jyoti Nain Date: 2023.04.27 16:26:56 +0530 that out of these three cheques, two were for a sum of Rs.40,000/ and Rs.28,000/ were given to the sister of the accused i.e. wife of the complainant i.e. Smt. Brijesh Chaudhary and same got encashed. That the transaction between accused and his sister pertain to a loan that she gave him. That third cheque for a sum of Rs.30,000/ was given by the accused to the complainant. That Smt. Brijesh Chaudhary even though was summoned as defence witness but was not examined by accused even when she was present in the court casts a shadow on the defence of the accused since, if she would have been examined, her evidence would have gone against the accused.
That owing to the fact that accused admitted receiving of Rs.3,00,000/ as hath udhar from the complainant in reply to the legal demand notice, contradiction in the stand taken by the accused at the stage of framing of notice u/sec 251 CrPC, admission of signatures on the cheque in question, admission of Rs.7,00,000/ as principle amount and Rs.3,00,000/ as interest in statement recorded u/sec 313 CrPC and finally, nonexamination of complainant on the loan amount of Rs.3,00,000/ which is the subject matter of the present complaint case, completely demolishes the defence of the accused. Ld. Counsel for complainant argued that accused has not been able to rebut the mandatory presumption in favour of the complainant and thus, he shall be held guilty for offence u/sec 138 NI Act.
Court observations: Jyoti Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 11 of 16 by Jyoti Nain Date: 2023.04.27 16:27:06 +0530
13. It is the defence of the accused that he had taken a loan of Rs.7,00,000/ and not that of Rs.3,00,000/ as claimed by the complainant and that he has already repaid the amount of Rs.7,00,000/ along with interest. During the crossexamination, complainant has admitted that he had given a sum of Rs.7,00,000/ to the accused and the same was given in the year 2016. Complainant has further admitted receiving of Rs.5,00,000/ from the account of accused's wife and Rs.1,80,000/ from accused through the account of one Sanat Kumar. Also, complainant admitted receiving of a cheque in the sum of Rs.30,000/ from accused which got encashed. Complainant admitted that a cheque of Rs.40,000/ from accused's account got encashed in the account of his wife. Ld. Counsel for accused has argued that since, there is a clear admission on the part of the complainant that he had received more than Rs.7,00,000/ from the accused, thus, accused does not owe any liability towards the complainant. He has further argued that at the time of advancement of loan of Rs.7,00,000/, complainant had received 1015 blank signed cheques from the accused and has misused some of those cheques. That the complainant encashed two of the cheques for a sum of Rs.40,000/ and Rs.30,000/ but before he could misuse the cheque in question, accused closed his bank account. On the other hand, Ld. Counsel for complainant argued that during the crossexamination, complainant has not been asked even a single question regarding the loan of Rs.3,00,000/ that he had advanced to the accused. That the entire crossexamination of Jyoti Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 12 of 16 by Jyoti Nain Date: 2023.04.27 16:27:16 +0530 complainant revolved around an earlier loan of Rs.7,00,000/ advanced by the complainant to the accused. Ld. Counsel for complainant brought the observation of this court towards Ex.CW1/6 i.e. reply of legal demand notice wherein accused has admitted the fact of receiving Rs.3,00,000/ in cash from the complainant as "hath udhar". That in the same reply accused has stated about returning the loan amount of Rs.3,00,000/ along with interest i.e. returning total sum of Rs.5,00,000/ to the complainant. In the same reply accused has stated of advancing a loan of Rs.1,80,000/ to the complainant and this amount was transferred from the account of Sanat Kumar on the asking of the accused. Ld. Counsel for complainant argued that in this reply, there is a clear admission by accused of taking a loan of Rs.3,00,000/ and not Rs.7,00,000/ from the complainant.
14. Arguments raised by Ld. Counsel for complainant are in line with the record, since, in reply Ex.CW1/6 there is admission on the part of the accused of receiving of a loan of Rs.3,00,000/ from the complainant which he has claimed to have returned along with interest. Interestingly, in his defence taken to the notice framed u/sec 251 CrPC, accused has stated that in order to return the loan amount of Rs.7,00,000/, he had transferred a sum of Rs.5,00,000/ in the account of the complainant and also that he further got transferred a sum of Rs.1,80,000/ in the account of the complainant. In the entire trial, accused has taken stand that Rs.1,80,000/ were transferred from the account of Sanat Kumar as part payment in order to return the loan amount of Jyoti Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 13 of 16 by Jyoti Nain Date: 2023.04.27 16:27:25 +0530 Rs.7,00,000/ whereas in reply Ex.CW1/6, accused has taken an altogether different stand that Rs.1,80,000/ were transferred from the account of Sanat Kumar as a loan to the complainant and in the same reply, accused has asked the complainant to return Rs.1,80,000/. Thus, it can be stated that there is a clear contradiction in the stand taken by the accused during trial to what he has taken in reply to the legal demand notice. Further, this court finds the argument of Ld. Counsel for complainant valid that complainant has not been questioned on the aspect of loan of Rs.3,00,000/ but rather has been crossexamined regarding loan of Rs.7,00,000/. That the accused has not disputed genuineness of reply to legal demand notice i.e. Ex.CW1/6 wherein he has admitted receiving of loan of Rs.3,00,000/ in cash from the complainant. Ex.CW1/6 does no where talks about loan of Rs.7,00,000/ as claimed by the accused. In the statement recorded u/sec 313 CrPC, accused has stated that he had repaid the principle amount of Rs.7,00,000/ along with interest of Rs.3,00,000/ to the complainant but in reply to the legal demand notice, accused has stated that he has taken a loan of Rs. 3,00,000/ in cash which he had repaid alongwith interest. Further, admission of the complainant regarding advancing money in old currency notes may not go on to prove the fact that loan of Rs. 3,00,000 / were advanced prior to demonetization, since, the question pertains to loan of Rs.7,00,000/.
15. Ld. Counsel for complainant has argued that the accused Jyoti Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 14 of 16 by Jyoti Nain Date: 2023.04.27 16:27:35 +0530 called his sister i.e. wife of the complainant as defence witness but since, she would have brought evidence which could have gone contrary to the defence of the accused, thus, she was dropped as a witness. This court is of the observation that it will not be appropriate to predict what a witness would have brought on the record until and unless he/she is actually examined.
16. This Court is of the observation that the circumstanial evidence has to be seen from the point of a reasonable/ prudent man. Hence, when the loan was already repaid, why did the accused not take any legal action against the complainant for getting the cheque in question back. The fact that till date accused has not filed any complaint for the misuse of the cheque in question further goes on to weaken his defence.
17. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, and the failure of the accused to put forth any reasonable and believable defence and the fact that the accused has not proved his defence to cause the probabilities to lie in his favour, second ingredient for offence u/sec 138 NI Act stands assembled.
18. In view of the aforesaid discussion, this court is of the observation that the accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881 in favour of the complainant as he has failed to bring any cogent evidence on the record in his defence. Therefore, accused is held guilty Jyoti Nain Digitally signed CNR no.DLSW02-064277-2019 Ram Niwas Chaudhary Vs Vivek Malik Page 15 of 16 by Jyoti Nain Date: 2023.04.27 16:27:44 +0530 and convicted for commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881. Let he be heard on the quantum of sentence on 29.04.2023 at 2.30 pm. Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.04.27 16:27:59 +0530 Announced in the open court today (JYOTI NAIN) i.e. 27th April, 2023 MM(NIAct)-10/SW Dwarka Courts, New Delhi Note: This judgment contains 16 pages and each page has been signed by me.
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