Delhi District Court
Sh. Lala Ram Yadav S/O Sh. Shiv Taj Singh vs Smt. Asha Rani Pahuja W/O Late Sh. ... on 28 May, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURTS: DELHI
Complaint No. 9820/07
PSShahdara
Sh. Lala Ram Yadav S/o Sh. Shiv Taj Singh
R/o 1/2584, Ram Nagar, Mandoli Road,
Shahdara, Delhi110032. .............. Complainant
Versus
Smt. Asha Rani Pahuja W/o Late Sh. Kulbhushan Kumar Pahuja
R/o Flat no.1, out of premises no.1572,
First Floor, Naveen Shahdara, Delhi110032.
Also at
Smt. Asha Rani Pahuja, LDC
Posted at ZRO Water,
Shanti Mohalla, Old Seelampur, Delhi110031.
Through its Commissioner of M.C.D.,
Town Hall, Delhi. ................ Accused
Offence complained of : 138 Negotiable Instruments Act
Plea of accused : Not guilty
Complaint filed on : 15.12.2004
Date on which judgment was reserved : 24.05.2010
Date of decision :
28.05.2010
Decision : Acquitted
J U D G M E N T :
1.Present complaint has been filed against the accused alleging that complainant is having money transactions with one Panwali since long and she was having good transactions so through her, accused also came in CC no.9820/07 Page no: 1/11 contact with complainant and borrowed a loan of Rs.20,000/ @ 2% interest p.m. in the year 2002 and issued a post dated cheque in favour of complainant. The amount was paid by the accused in time and the interest was paid regularly by Panwali, therefore the said cheque was returned to the accused. In the month of May 2003 accused alongwith her daughter Miss Sonia came to house of the complainant and proposed to mortgage her flat no.1, out of premises no.1572, First Floor, Naveen Shahdara, Delhi against consideration of Rs.2,50,000/@ 2% interest p.m. But the complainant showed his inability to this proposal. Thereafter accused agreed to receive loan of Rs.1,50,000/, which was repayable upto 31.04.2007 with interest @ 2% p.m. This loan was sought by the accused to perform the marriage of her eldest daughter. It was taken by her on condition to repay it upto 31.07.04. Accused informed the complainant that she had applied for official loan and was excepting to get the same. Complainant paid Rs.1,50,000/ in cash to the accused, who issued a post dated cheque bearing no.125495 dated 01.08.2004 for a sum of Rs.1,88,000/. This cheque was inclusive of interest and other expenses agreed between the parties for period upto 31.07.2004. Accused also entered into an agreement dated 01.05.2003 before witnesses to mortgage her flat. After 31.07.2004 complainant approached the accused to present the cheque in his bank but accused asked to postpone it and assured to make payment in cash upto September 2004. Accused failed to make payment of loan and therefore, complainant finally presented the cheque in his bank, which was returned on account of funds insufficient vide memo CC no.9820/07 Page no: 2/11 dated 27.10.2004. Accused served a legal notice dated 03.11.2004 through registered AD and UPC upon the complainant through his counsel. However, accused did not make the payment of cheque amount, hence the present complaint.
2. Accused was summoned and was explained notice of accusation on 06.11.2007 to which she pleaded not guilty.
3. Complainant examined himself in support of his case. Thereafter, accused was examined U/S 281 Cr.P.C. On 06.06.2008. Accused examined herself in support of her defence.
4. Both parties made their rival arguments. I have given due consideration to the contentions made before me and perused the record of this case.
5. In this case accused has taken defence that she had taken a loan of Rs.20,000/ from the counsel of complainant namely Sh. R.S. Goswami, through a lady namely Panwali. She does not know complainant. The cheque in question was given in blank to Mr. R.S. Goswami at the time of taking loan from him. She did not take any amount of Rs.1,50,000/ from the complainant and the cheque in question has been misused by Sh. R.S. Goswami. She denied receipt of notice. Complainant in his affidavit repeated the same facts, which are stated in the complaint. He proved the agreement dated 01.05.2003 as Ex. CW1/A , cheque in question as Ex. CW1/B, dishonor memo Ex. CW1/D, legal notice as Ex. CW1/E and postal receipt as Ex. CW1/F and G. In his cross examination, he deposed that he used to give loan to his known persons and was doing this CC no.9820/07 Page no: 3/11 work for last 8 years. However, he did not use to file his income tax return. He further deposed that he pay loan in cash only against post dated cheques. No loan agreement is executed. He further deposed that he had given maximum loan upto Rs.2 lacs. He further deposed that the cheques are filled by debtor. However, the cheque in question is found to be not filled in by the accused in this case. Infact on 24.09.2009, it was conceded by counsel for complainant that cheque is not filled in the handwriting of the accused. Therefore, it is better to say that instead of post dated, an undated cheque was taken from the accused.
6. Complainant in his cross examination further deposed that Ex. CW1/A was prepared by him in Karkardooma Courts. However, he admitted that particular of his name, payment, and term period of loan, interest, cheque no. are not typed but are handwritten. He further deposed that writing over Ex. CW1/A is in the hands of the typist. He further deposed that he had annual income of Rs.1,25,000/. He was given suggestion that accused never received any loan Ex. CW1/A and that the body of this document/agreement was filled up by him at his house and the signatures of the accused were obtained on blank document. He denied these suggestions. I am unable to understand that when the agreement was prepared in presence of all the parties in Karkardooma Court by a typist, then why the particulars of complainant, loan amount as well as particulars of cheque etc. were written in the hands of typist. If everything was being done as per alleged transaction between the parties, then there could not have been any hitch to prepare this agreement giving all the particulars in CC no.9820/07 Page no: 4/11 singal flow over typewriter itself. Complainant has not explained that under what circumstances these particulars could not be typed at the time of preparation of agreement and when as well as under what circumstances the aforesaid particulars were required to be filled by typist under his handwriting? This scenario itself raises suspicion over the manner this document is shown to be executed between the parties. In fact this scenario gives credence to the contention of accused that her signatures were obtained on blank document and the document was prepared later on. Therefore, I do not find it to be safe to rely upon this document for simple reason that it seems to be prepared under suspicious circumstances.
7. In his affidavit and complaint, complainant has mentioned that the loan was asked by the accused for marriage of her eldest daughter. However Ex. CW1/A i.e. the agreement shows that the loan was being taken by the accused to start the business of her daughter. It is admitted case of complainant that this agreement was prepared by him. Therefore, such contradiction regarding purpose of the loan assumes importance. This contradiction shows that complainant has come up with two different story before the court. It is not possible that if accused represented before the complainant the reason of marriage of her daughter for the purpose of taking loan, then complainant would have mentioned the reason of business of her daughter in this agreement. This agreement also shows that accused undertook to pay interest every month. However, at the same time, it is alleged by the complainant that accused issued a post dated CC no.9820/07 Page no: 5/11 cheque for Rs.1,88,000/ towards the loan amount, interest upto 31.07.2004 as well as other agreed charges. If from the date of this agreement, upto 31.07.2004, interest on the amount of Rs.1,50,000/ is calculated at the rate of 2% p.a., then I find that there was a period of fifteen months for which interest amount of Rs.45,000/ would have accrued against the accused. However, the story of the complainant shows that an amount of Rs.38,000/ only was expected to accrue on 01.08.2004. It is not expected that a person giving loan on interest shall compute interest lesser than what it would have been. It is nowhere whispered by the complainant that at any point of time, accused made payment of any interest to him. Even otherwise on 01.05.2003 there was no possibility to assume that accused would pay the balance amount of Rs.7000/ before 01.08.2004. In that situation, there was no reason to take cheque of Rs.1,88,000/. Further more, as I have already indicated, the cheque was not post dated and the date was filled in separately. Complainant's story that accused issued a post dated cheque is apparently a false story. Not only the date, infact all other particulars were filled separately with different ink and complainant has kept mum about such facts.
8. Accused has deposed in her affidavit that she had taken loan from Mr. R.S. Goswami, an advocate and was making payment of interest to him. It is worth to be seen that Mr. R.S. Goswami had been representing the complainant in this case. He was prosecuting this case as counsel for complainant. He did not deny that Ex. D1/A is the receipt issued by him. It CC no.9820/07 Page no: 6/11 is also not denied that a cheque was given to him by the accused at the time of taking loan from him. In the cross examination of accused, Mr. Goswami suggested to her that the cheque given to him was still lying with him, which was admitted by the accused. If it is case of the complainant that the cheque given to Mr. Goswami was different from the cheque given to the accused, then it was duty of the complainant as well as of Mr. Goswami to produce the another cheque which was under possession of Mr. Goswami as security of loan amount given by him to the accused. No such cheque was produced before the court despite the defence taken by the accused that Mr. Goswami misused that cheque alongwith the complainant.
9. As per Section 3 of Punjab Registration of MoneyLenders' Act 1938, recovery of a loan on behalf of a money lender is not maintainable unless such money lender holds a valid license issued in the prescribed manner to lend money. Therefore, being in business of giving loan without having license for the same, make such transaction illegal for which, no recovery proceedings can be initiated by such lender. It is first requirement of offence under Section 138 Negotiable Instruments Act that cheque in question should be given towards discharge of legal by recoverable debt. In the present case complainant himself has stated that he was in the business of giving loan on interest for last eight years. However, he did not disclose about having any licence to do such kind of business. He cannot be given any benefit of not disclosing the material fact in order to show that the loan in question was recoverable by him. Therefore, the inevitable CC no.9820/07 Page no: 7/11 conclusion is that complainant did not have a claim of legally recoverable loan against the accused.
10. It has become settled law that onus to discharge presumption u/s.118 and 139 N.I. Act is based upon the principle of preponderance of probabilities and the onus on the complainant to prove the guilt of the accused is based upon the principle of beyond all reasonable doubts. In this regard I would like to refer the following case laws, which lay down the law in respect of standard of proof and onus on the respective parties to be discharged by them.
11. In P. Venugopal. Vs. Madan P. Sarathi 2009 (1) Civil Court Cases 054 (SC) in paragraph 16 of the judgment, Hon'ble Supreme Court has observed as under:
"Indisputedly, in view of the decisions of this Court in Krishna Janardhan Bhat (supras), the initial burden was on the complainant. The presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In a case of this nature, however, it is essentially a question of fact."
7. I would also like to refer the judgment of Hon'ble Supreme Court in M/s. Kumar Exports Vs. M/s. Sharma Carpets2009(1) R.CR.(Crl) 478. In this case, Hon'ble Supreme Court has explained in detail the scope of Section 118 and Section 139 N.I. Act. The relevant observations made therein are as follows: CC no.9820/07 Page no: 8/11 "11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should CC no.9820/07 Page no: 9/11 bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear 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. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
12. From the appreciation of evidence on the record, I do not find that accused has been able to raise probability of absence of consideration against cheque in question. However, complainant has not been able to prove the guilt of accused beyond all reasonable doubts. Infact story and evidence of the complainant is covered with heavy cloud of suspicion for CC no.9820/07 Page no: 10/11 the reasons already mentioned herein above.
13. Therefore, accused is acquitted of charge for the offence punishable u/s.138 Negotiable Instrument Act. Surety stands discharged.
14. File be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA) Court on 28.05.2010 CCJ/ARC(EAST)/MM (contain 11 pages only) KARKARDOOMA COURTS: DELHI CC no.9820/07 Page no: 11/11