Delhi District Court
Indiabulls Finance Services Ltd vs Yogesh Kaushik on 23 March, 2012
IN THE COURT OF MS. SUSHEEL BALA DAGAR,
METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI
CC No. : 19218/10
Unique Case ID No. 02405R0433352010
PS : Connaught Place
U/s 138 N I Act
Indiabulls Finance Services Ltd.
Having its registered office at:
F60, Second Floor,
Malhotra Building, Connaught Place
New Delhi 110 001 ........... Complainant
Versus
Yogesh Kaushik
RZF 99/19 New No. 41B/11A Sadh
Nagar, Shiv Mandir,
New Delhi110 045
Also At:
Designation: Proprietor :
Department : Kaushik EnterprisesRFZ 1/3A
Gali No. 1 Mahavir Enclave
Behind ICICI Bank, New Delhi110045 .........Accused
Date of Institution : 29th March, 2010
Plea of accused : Pleaded not guilty
Date on which judgment was reserved : 21st March, 2012
Order : Convicted
Date of decision : 23rd March, 2012
CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 1/10
J U D G M E N T :
1. The case of the complainant is that the accused was provided a personal loan of Rs. 25,000/ by the complainant vide Loan Account no. S000060535. The accused had issued 3 cheques no. 485845, 485846 and 485843 dt. 07.01.2010 each drawn on HDFC Bank Ltd., Delhi in favour of complainant for an amount of Rs. 1667/ each towards discharge of legally enforceable debt and/or liability arising out of the above mentioned loan agreement. The said cheques were returned unpaid with the remarks " Account Closed " each vide return memo dt. 08.01.2010 each. The complainant issued a legal demand notice dt. 05.02.2010 to the accused and the same was duly served upon the accused. Accused did not pay the cheque amount within statutory period, hence, complainant has filed the present case.
2. The complainant led pre summoning evidence by way of affidavit and summons were issued against the accused vide order dt. 29.03.2010 for the offence under Section 138 Negotiable Instrument Act, 1881(hereinafter known as the 'Act'). On appearance of the accused notice under Section 251 Cr.P.C. dt 09.01.2012 was served upon the accused for committing offence under Section 138 of the Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case the authorized representative of the CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 2/10 complainant got himself examined as CW1 and filed an affidavit in evidence as Exhibit CW1/H1 wherein he reiterated the contents of the complaint before the Court. He proved Certificate of Incorporation as Exhibit CW1/A, Power of Attorney in his favour whereby he was authorized to file the complaint and depose in Court as Exhibit CW1/B, Cheques in question as Exhibit CW1/C(colly), Cheque returning memo as Exhibit CW1/D (colly), Legal notice of demand as Exhibit CW1/E, Courier Receipt as Exhibit CW1/F, Statement of account as Ex. CW1/X and Complaint as Exhibit CW1/G.
4. The statement of accused was recorded under section 313 CrPC in which all the incriminating evidence was put to the accused, Yogesh Kaushik. In reply to the said incriminating evidence the accused admitted that he took a loan of Rs. 25,000/ which he had already repaid. He also paid file charges and loan secure charges of Rs. 5,000/ extra at time of disbursement of loan but he did not have receipt of the same. The cheques in question are security cheques which have been misused by the complainant. He never received any legal notice. Hence, he has no liability to pay the cheques in question.
5. In his defence, accused examined himself as DW1 and reiterated the statement made by him u/s 313 Cr.P.C on oath. DW1 admitted to have taken a loan of Rs.25,000/ from the complainant in the year CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 3/10 2006. He stated that the complainant took 24 blank cheques from him as security. He had made some payment in cash to the complainant. He had already cleared the loan in 2007. The complainant did not return his security cheques. He came to know about the present case only in December 2011. The account in which the cheques were presented was closed and the complainant was aware about the same. The accused did not take any top up loan from the complainant. The complainant has misused the pending security cheques lying with it. Defence evidence was closed and matter was fixed for final arguments.
6. I have heard Sh. Manoj Yadav, Ld. Counsel for the complainant and Sh. Ajay Kumar Ld. Counsel for the accused and have gone through the record. Counsel for the complainant has relied on the case laws C.C.Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555; Ravi Chopra v. State 2008 (2) JCC NI 169; Rangappa v. Shree Mohan 2010 (2) LRC 321 (SC); Hiten P. Dalal v. Bratindranath Banerjee AIR 2001 SC 3897. Whereas counsel for the accused has relied on the case laws of M/s Indrapuram Habitat v. M/s Stup Consultants dt. 29.03.2011 Delhi High Court; Tamishwar Vasihnav v. Ram Vishal Gupta AIR 2010 SC 1209.
7. Ld. Counsel for the complainant has argued that the accused has CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 4/10 admitted to have made payment of only 15 EMIs out of the agreed 24 EMIs. The accused had issued the 3 cheques towards full and final settlement of the entire loan in discharge of his legal liability. Moreover, even if the accused submits that he gave blank signed cheques, the complainant can fill the blank signed cheques. He has referred to Ravi Chopra Judgment (supra) for the same. Ld. Counsel for the accused has argued that the loan amount of Rs. 25,000/ was disbursed to the accused on 30.06.2006. No loan agreement was executed between the parties. Accused has made payment of Rs. 25,005/ to the complainant. The accused has given blank signed cheques to the complainant which have been filled up and misused by the complainant. No legal demand notice was served on the accused. The complainant has not placed on record any documents to show that the matter was settled between the parties for a sum of Rs. 5,001/. The three cheques are of the same date and if they were the EMIs cheques, how can the same date be mentioned on the three cheques. The loan agreement is not produced on record by the complainant.
8. It is admitted case of both the parties that cheques in question were signed by the accused. It is further admitted case that accused had entered into an agreement for grant of loan with the complainant. Thus, the initial onus for raising presumption u/s 139 of the Act is CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 5/10 discharged by the complainant. Now it is for the accused to rebut the presumption u/s 118 & 139 of the Act by leading direct evidence or by showing preponderance of probabilities in his favour.
9. DW1 admitted that the mode of repayment of the loan was by way of cheque. He admitted that the EMI cheques were dishonoured due to insufficient funds. He had to make payment by way of cash whenever the cheque was dishonoured. Perusal of statement of account Ex. CW1/X shows that payments against the loan in question has not been made on time. Moreover, DW1 admitted that he had made payment of only 15 EMIs out of the 24 EMIs as per agreement. He had not made payment of 9 EMIs as he was told that the loan is given at 0% rate of interest and if he does not take a top up loan after repayment of 9 EMIs he will have to pay only Rs.25,000/ back to the complainant.
10. It is cardinal principal of law that "one who asserts must prove his case". DW1 did not produce any document to show that loan was given to him at 0 % rate of interest. Neither could he bring any documents to show that if he does not take a top up loan after repayment of 9 EMIs he will have to pay only Rs.25,000/ back to the complainant. Even though DW1 stated that he had already cleared the loan in question in the year 2007 but during cross examination he CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 6/10 admitted that the loan was to be repaid upto 2008 and not upto year 2007. All the more he admitted that he had not informed the complainant about closure of his account. The complainant has stated in its complaint that the accused gave the alleged three cheques to settle the loan account by paying the total outstanding amount. The alleged three cheques are not the EMI cheques. In the view of the Court, it does not matter if the same date is written on the alleged three cheques. It is the sweet will of the giver of the cheques, in this case the accused, as to how he wishes to make the payment. The payment can be made by way of one cheque or three cheques at the discretion of the accused.
11. It is the defence of the accused that no loan agreement was executed between the parties and the complainant has not produced the loan agreement on record. The onus of proof lies on the accused to show that he had not entered into any loan agreement with the complainant. DW1 has already admitted that he had taken a loan from the complainant. As the presumption u/s 139 of the Act is in favour of the complainant, it was for the accused to prove that no settlement ever took place and he has not given the alleged cheques for settlement. The accused has not been able to discharge the burden of proof which lied on him. The accused could have summoned the loan agreement by CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 7/10 moving appropriate application. The accused has not done so for reasons best known to him.
12. The service of Legal Demand Notice Ex. CW1/D is presumed as per Section 27 of the General Clauses Act, 1897. Moreover, accused has admitted the address written on Legal Demand Notice to be his correct address. Even if the accused pleads that no notice was served on him then according to CC Alavi Haji v. Palapetty Muhammed 2007 Cri.LJ 3214 it has been held that :
"any drawer who claims that he did not receive the notice sent by post can within 15 days of receipt of summons from the Court in respect of the complaint U/s. 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected".
Though the accused after appearing in the Court stated that he wishes to settle the matter for the entire loan amount but he did not make any payments.
13. Another offshoot of the probable defence of the accused is that cheques in question are security cheques. Accused has submitted in his statement u/s 313 CrPC that the cheques in question were security cheques. This assertion of the accused is denied by CW1 in his cross examination. Thus, the situation is evenly poised. In order to believe CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 8/10 any one version, I have to see the totality of facts and circumstances of this case as neither party has given any evidence in support of their version except asserting themselves.
14. In the case in hand, the signature on the cheques in question are that of the accused is not disputed. The accused has stated that the said cheques were issued by him in favour of the complainant. Even if we believe that the cheques in question were given blank signed by the accused, then it is not going to help the cause of accused. In the case laws of MOJJ Engineering Systems Ltd. v. A. B. Sugars Ltd. 154 (2008) DLT 579, T. Nagappa v. Y.R. Murlidhar, AIR 2008 SC 2010 and Ravi Chopra v. State (supra), it is held that filling up of the blank cheque by the payee is different from committing a material alteration. Keeping in mind the observations of the higher Courts in the case laws mentioned above, it matters little if the name of the payee, date and amount are filled up at a subsequent point in time. Thus, the Court is of the view that cheques in question were given against the legal enforceable liability and not as security cheques.
15. There is no clear defence taken by the accused and no documentary evidence is placed on record in support of his version. Thus, he is unable to raise preponderance of probabilities in his favour. CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 9/10 Keeping in view the discussions made hereinabove, the complainant is able to prove the ingredients of Section 138 of the Act beyond reasonable doubt. Accused is not able to make out a probable defence in his favour. Thus, the accused stands convicted under Section 138 of the Act.
16. List for hearing the convict on the quantum of sentence on 26th March, 2012.
Announced in the open Court Susheel Bala Dagar
on this 23rd day of March, 2012 Metropolitan Magistrate
Dwarka Courts, Delhi.
All pages signed.
CC No. : 19218/10 Indiabulls Finance Services Ltd. v. Yogesh Kaushik 10/10