Delhi District Court
Cc No. 1622/16 1/8 Smt. Indu vs . Shyam Singh on 11 January, 2019
IN THE COURT OF SH. PRAYANK NAYAK, MM02,
SHAHDARA, KARKARDOOMA COURTS, DELHI.
CC No. 1622/16
Smt. Indu,
W/o Sh. Brahmpal,
R/o H.No. 349/12,
BlockC1, Harsh Vihar,
Delhi110093. ............. Complainant
Versus
Sh. Shyam Singh,
S/o Sh. Nepal Singh,
R/o Village Kishan Pur,
PO: Shivali, District Bulandshar,
UP203001.
Also At:
D80, Swarn Nagri, Greater Noida,
Gautam Budh Nagar,
UP201308. ................... Accused
Offence complained of u/sec 138 N.I.Act
Offence complained of : U/s 138 NI Act
Plea of the Accused : Accused pleaded
not guilty
Date of filing : 21.07.2015
Date of institution of the Case : 23.07.2015
Date on which arguments heard : 04.01.2019
Date of decision : 11.01.2019
Final Order : Acquitted u/s 138 N.I.Act
CC No. 1622/16 1/8 Smt. Indu vs. Shyam Singh
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE
1. The story projected by the complainant is that she has given a friendly loan of Rs.21.5 lakhs on various occasions from the period of 03.12.2012 to 31.12.2013 to accused Shyam Singh. Towards repayment of the said loan, two cheques for the sum of Rs.5 lakhs and 16.5 lakhs were issued by the accused. Out of these cheques, cheque bearing No.066435 drawn on Bank of Baroda in the sum of Rs.16.5 lakhs was returned unpaid. Complaint was filed when accused did not make any payment despite service of legal notice.
2. Accused had contested his liability towards the cheque in question as well as the issuance of the said cheque. He has also denied the receipt of legal demand notice. It is his plea that he had only taken a loan of Rs.5 lakhs from the complainant by way of cheque and has repaid the same.
3. I have heard counsels for both the parties and perused the record. Ld. Counsel for the complainant has argued that the accused has admitted his signature on the cheque and thus liability has to be presumed in favour of the complainant. It is further stated by him that the legal notice was sent by Speed post and that accused has not clarified as to how the cheque came into CC No. 1622/16 2/8 Smt. Indu vs. Shyam Singh possession of the complainant. In support of his contention, he has relied upon the judgments 2018 (1) DCR 45 titled Surinder Singh v. State of H.P. by Hon'ble Himachal Pradesh High Court; 2016[4] JCC [NI] 204(Karnataka High Court), titled G.H. Prabhakara v. E. Narayanagowda; 2018 (1) DCR 608 by Hon'ble Punjab & Haryana High Court titled Vikas Chander v. Rajesh Kaushik; & 2018 (1) DCR 258 by Hon'ble Karnataka High Court titled KhuddasPasha v. Ravikumar.
4. Ld. Counsel for the accused has argued that the accused is only required to raise the probable defence. He has also submitted that the accused has been able to rebut the presumption in favour of the complainant by the crossexamination. Hence, it is his submission that even in the absence of any defence evidence, the case of the complainant has to fail as various discrepancies have come on record during the crossexamination of the complainant.
5. The offence u/s 138 of N.I. Act consists of following ingredients;
a. The cheque was drawn by drawer on an account maintained by him with the banker for payment of any amount of CC No. 1622/16 3/8 Smt. Indu vs. Shyam Singh money out of that account.
b. The said payment was made for discharge of any debt for other liability in whole or in part.
c. The said cheque was returned unpaid by the bank.
d. The cheque was presented to the bank within a period of 6 months from the date on which it was drawn or within the period of its validity whichever is earlier.
e. The payee or the Holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
f. The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice.
g. The payee or the Holder in due course of the cheque shall make a complaint in writing within one month of the date on which the Cause of Action arises i.e. 15 days from the receipt of the notice by the drawer.
CC No. 1622/16 4/8 Smt. Indu vs. Shyam Singh
6. In this case, accused has contested the liability towards the cheque in question as well as the receipt of legal notice. Since the signature on the cheque in question has been admitted by the accused, the presumption u/s 118 N.I. Act and 139 N.I. Act would be attracted. This is as per the judgment of Hon'ble Supreme Court in "Rangappa v. Sri Mohan 2010 11 SCC 441 wherein it was held that "It will be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability".
7. Thus the presumption of liability in favour of complainant has to be drawn. Now it is incumbent upon the accused to dislodge this presumption by raising a probable defence. In this case accused has crossexamined the complainant but did not examine any witness.
8. Coming to facts of the case, there has been no explanation as to why the loan amount was given partly by cash and partly by cheque on the same day. Apart from this, material discrepancies have come on record during the crossexamination of the complainant, as discussed in following paragraphs.
CC No. 1622/16 5/8 Smt. Indu vs. Shyam Singh
9. In her examinationinchief complainant has deposed that on 31.12.2012 sum of Rs.10 Lakhs (Rs.5 Lakhs by cheque and Rs.5 Lakhs by cash) has been given. However, in her crossexamination on 28.06.18, she testified that to the day on which cheque of Rs.5 Lakhs was given, no other amount in cash or cheque given. Further in her examinationinchief complainant has deposed that she had advanced loan on 31.12.2012, 14.02.2013, 13.03.13 and 31.03.13. But in her crossexamination she deposed that she had given Rs.2 Lakhs and Rs.2.5 Lakhs on 31.03.2013. But during her crossexamination she has deposed that "The last installment was taken on 31.03.13 and only Rs.2.5 Lakhs was given on that date". These discrepancies weaken the foundation of complainant's case.
10. In her crossexamination, complainant has deposed that accused had approached her husband for loan and the conversation regarding loan took place between accused and her husband. However, her husband was not examined by the complainant. On the same note, complainant has also testified that loan transaction was witnessed by Mr. Mahipal Bharti. But even he was not examined by the complainant. The reason of nonexamination of such crucial witness has not been forthcoming and hence fatal to the case of the complainant.
CC No. 1622/16 6/8 Smt. Indu vs. Shyam Singh
11. Complainant has also testified that she had maintained written record of loan given to accused but this also was not filed on record. The complainant has also feigned ignorance about profession and income of accused. She does not even know the number of members in family of accused. Hence, it is doubtful that complainant had close relations with the accused. And in absence of close relations, it is hard to believe that complainant had given a loan of Rs.16,50,000/ without any documentary proof and security.
12. It is also interesting to note that the complainant has stated that Rs.16.5 lakhs were arranged by her from sale of a plot in Ghaziabad. She had further deposed that she had received a sum of Rs.17 lakhs in her bank account through RTGS in respect of the aforesaid sale. However, she has not produced any document to show whether the same amount was withdrawn by her from the bank for the purpose of giving loan to the accused. Hence the version of the complainant does not appear to be credible.
13. In a criminal case the complainant has to prove his/her case beyond reasonable doubt and he cannot take advantage of the weakness of the defence put by the accused. In the instant case, aforesaid discussion casts doubt over CC No. 1622/16 7/8 Smt. Indu vs. Shyam Singh the complainant's version. In the case of Kulvinder Singh V. Kafeel Ahmad, 2014 (2) JCC (NI) 100 (case under Section 138 N.I. Act) it was observed by Hon'ble Delhi High Court that "The basis principle in Criminal law is that the guilt of respondent/accused must be proved beyond reasonable doubt and if there is slightest doubt about commission of an offence then the benefit has to accrue to him".
14. Hence, it is clear that the benefit of doubt has to accrue to the accused. The judgments relied upon by counsel for complainant are not applicable to the present facts. Accordingly, accused Shyam Singh is acquitted of offence u/s 138 of Negotiable Instruments Act.
Accused is directed to furnish bail bond u/s 437A Cr.P.C in the sum of Rs.20,000/ with one surety in the like amount.
This judgment contains 8 pages & each page bears my signature. Digitally signed by
PRAYANK PRAYANK NAYAK
NAYAK Date: 2019.01.11
16:43:21 +0530
Announced in the open (PRAYANK NAYAK)
Court on 11.01.2019 MM02/SHD/KKD
Delhi, 11.01.2019
CC No. 1622/16 8/8 Smt. Indu vs. Shyam Singh