Delhi District Court
Khode vs . Laxmikant Shantilal Choudhari And ... on 3 March, 2012
1
IN THE COURT OF MS. SURABHI SHARMA VATS
MM01 (138 NEGOTIABLE INSTRUMENTS ACT)
PHC, NEW DELHI DISTRICT, NEW DELHI.
(a) Complaint Case No. 568/1/10
(b) Date of Institution 04.07.1998
(c) Date of offence The date on which cheque dishonored.
(d) Complainant A.K. Ahuja
S/o Late Sh. M.R. Ahuja
M91, Connaught Circus,
New Delhi110001
(e) Accused 1. Suresh Kumar Talwar
S/o Late Sh. B.R. Talwar
nd
R/o: E4, Jangpura Extn. 2 Floor,
New Delhi
2. M/s Raja Estate
Through its partner Suresh Kumar Talwar
S/o Late Sh. B.R. Talwar
nd
R/o: E4, Jangpura Extn. 2 Floor,
New Delhi
3. M/s Raja Estate
Through its partner Smt. Savita Talwar
W/o Sh. Suresh Kumar Talwar
nd
R/o: E4, Jangpura Extn. 2 Floor,
New Delhi
(f) Offence Under Section 138 N.I. Act
(g) Plea of the accused Pleaded not guilty and claimed trial
(h) Argument heard and 29.02.2012
reserve for order
i) Final order Acquitted
(j) Date of Judgment 03.03.2012
CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012
2
JUDGMENT
Brief facts of the case:
1. It is the case of the complainant that the complainant is the proprietor of M/s Ahuja Consultant having its office at M91, Connaught Circus, New Delhi110001 and is resident of H30, Masjid Moth, Greater KailashII, New Delhi. The accused were family friends of the complainant for almost a decade and it is further stated that the accused and his wife Smt. Savita Talwar were the partners of M/s Raja Estate.
2. It is averred in the complaint that accused no. 1 Suresh Kumar Talwar took a loan of Rs.2,45,000/ from the complainant through various cash receipts to meet their personal and business needs in the year 1992 and 1993 and at the time of taking of the said loan, accused had also promised and assured the complainant that he will return the abovesaid loan of Rs.2,45,000/ within a period of six months to the complainant. It is further contended that being a family friend and also in good faith, complainant gave the loan amount to the accused and apart from that accused no. 3 Smt. Savita Talwar had also taken a loan of Rs.20,000/ from the complainant for personal and domestic use.
3. It is further stated that the complainant had filed another case u/s 138 of NI Act against the accused no. 1 and his company M/s Raja Estate in the court of Smt. Shailender Kaur, Ld. MM, Patiala House Court, New Delhi whereupon for the want of his personal appearance the accused no. 1 Suresh Kumar Talwar was declared as P.O. (Proclaimed Offender) and later on the money due from the accused in this case was given/paid back to the complainant through accused no. 3 Smt. Savita Talwar, wife of the CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 3 accused no. 1 for an out of court settlement. It is further stated that the accused by way of compromise also handed over a cheque, which is in question, for a sum of Rs.4,95,000/ for and on behalf of his company to the complainant through his wife accused no. 3 towards the said loan amount including interest in lumpsum vide cheque no. 945459 dated 03.04.1998 drawn on Syndicate Bank, Hotel Janpath, New Delhi against the other outstanding debts of the complainant other than the abovesaid case.
4. It is further contended that at the time of handing over the cheque in question, accused requested to the complainant to present the cheque after a period of one month and when the cheque was presented by the complainant in his bank on 02.06.1998 for encashment was dishonoured for the reasons "Account Closed" through his banker's memo dated 02.06.1998. Thereafter, the complainant sent a legal notice dated 06.06.1998 to the accused which was posted on 08.06.1998 and 13.06.1998, under registered A.D. Post and UPC respectively calling upon the accused to make payment of the dishonoured cheque within a period of 15 days from the date of the receipt of the said notice as required under law. Despite receiving the legal demand notice, accused had failed to make the payment and then present complaint has been filed under section 138 Negotiable Instrument Act.
5. The Court has summoned the accused persons after taking cognizance and after supplying the documents, a notice under section 251 Cr. P.C. for offence under section 138 Negotiable Instrument Act was served upon accused no. 2 through accused no. 1 and accused no. 1 in person on 13.12.2001 and accused no. 3 Savita Talwar was discharged CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 4 vide order dated 13.12.2001. The accused persons (accused no. 1 and 2) pleaded not guilty and claimed trial. After completion of Complainant's Post Notice Evidence, statement of the Accused was recorded u/s 313 Cr. P.C. During recording of statement of accused u/s 313 Cr. P.C. accused submitted that he wants to lead evidence but no evidence has been led by the accused in his defence.
6. Ld. counsel for the complainant has placed reliance upon the judgment of Hon'ble Bombay High Court entitled Rajendra Vasantrao Khode vs. Laxmikant Shantilal Choudhari and another, 2000 (3) Crimes
545. The court has perused the said judgment.
7. I have heard Ld. Counsel for both the parties and also perused the testimony of witnesses and documents placed on record. Perused the written arguments submitted by Ld. counsel for the accused.
8. Admitted and denied facts in this case are:
a) The signature on the document Ex. CW1/A cheque no. 945459 is admitted.
b) The presentation of the cheque within time is also not in dispute.
c) The receipt of legal demand notice Ex. CW1/D is denied.
d) Factum of liability to pay is also denied.
9. It is the defence of the accused that accused alongwith his family had been residing in his own house in E/280, Greater Kailash PartI, New Delhi and the complainant alongwith his family was also residing in a rented house in his neighbourhood. He further submits that due to proximity of houses both the families developed good relations and were on visiting CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 5 terms. He further contends that in October, 1991 the accused alongwith his wife opened a joint Current Account no. 273 and he also opened a single Saving Bank Account no. 3786 in his name and both the accounts were opened in Syndicate Bank, Hotel Janpath, New Delhi.
10. It is further averred that due to financial constraints, the complainant had often been borrowing money from the accused. In July, 1993 it was discovered by the accused that a few cheques pertaining to the above mentioned accounts were missing. Although he had suspicion that the said cheques were stolen by the complainant yet due to close family relations, the accused could not enquire from him. It is stated that on 20.03.1995, the accused went to USA leaving behind his family in India and in 1996 his wife Savita Talwar received summons from New Delhi Court for appearance in a complaint case no. 373/1 dated 25.08.1993. On receipt of the said summons, it was confirmed that the complainant had stolen the missing cheques. After forging two cheques, he filed complaint case no. 373/1 dated 25.08.1993 u/s 138 NI Act. In the said complaint, he forged cheque no. 945455 dated 30.01.1993 for Rs.20,000/ from current account no. 273 and cheque no. 379881 dated 16.03.1993 for Rs.75,000/ from saving bank account no. 3786. Both the above cheques were drawn on Syndicate Bank, Hotel Janpath, New Delhi. He further submits that the proceedings in complaint case no. 373/1 remained pending in court from 25.08.1993 to 30.04.1998. The complainant had deposed in the said complaint case on 20.04.1995. Due to threats/pressure from bad elements the accused's wife was forced to pay Rs.2,20,000/ in lieu of Rs.95,000/ (cheque amount of forged cheques) in various installments commencing from 15.12.1997 to CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 6 24.09.1998. It is pertinent to mention that the complainant had admitted the contents of the above said complaints to be absolutely correct. The complainant did not even whisper about the present alleged loan given by him to the accused. The complaint case no. 373/1 was withdrawn by the complainant on 30.04.1998. Thereafter, the complainant forged another stolen cheque no. 945459 dated 03.04.1998 for Rs.4,95,000/ from Current account no. 273 and filed the present complaint case.
11. It is also stated that the accused did not receive any notice/information about the present complaint case till February, 1999 as he was not having any communication with his wife. On scrutiny of the statement of account it was found that the complainant had forged cheque no. 379881 dated 16.03.1993 for Rs.75,000/ from Saving Bank account no. 3786, whereas the accused was issued the said cheque book on 15.04.1993. The complainant had forged cheque no. 945455 dated 30.01.1993 for Rs.20,000/ from current account no. 273 and also forged cheque no. 945459 dated 03.04.1998.
12. The accused in his defence has relied upon the crossexamination of the complainant witness, statement of accused u/s 313 Cr. P.C., arguments and legal prepositions raised by the accused in this case.
13. In this case besides the complainant (PW1), Sh. Rajbir (PW2) representative of Punjab & Sind Bank, New Delhi and Sh. Satish Kumar (PW3), representative of Syndicate Bank, Hotel Janpath, New Delhi have been examined. The complainant is the only material witness while the other formal witnesses. It is further submitted that for the other outstanding dues, the cheque of Rs.4,95,000/, which is cheque in question, was issued CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 7 in the year 1998.
14. The accused has not led any defence evidence in his defence in this case. In the statement of accused u/s 313 Cr. P.C., accused has replied that it is incorrect that accused or his wife had ever taken any loan from the complainant. He also denied the issuance of the cheque in question to the complainant and the aforementioned case of the accused was put forwarded by the accused in his statement u/s 313 Cr. P.C. The replies given in the memorandum u/s 313 Cr. P.C. are the same as above mentioned case of the accused. Thus, they are not being repeated herein for the sake of brevity.
15. During the course of final arguments it was contended by Ld. counsel for the complainant that there were several transactions between the complainant and the accused and the complainant was extending friendly loan to the accused on various occasions. In the year 1993, the complainant filed a case u/s 138 of NI Act against the same accused persons and in the April, 1998, that case was compromised and then withdrawn by the complainant. It is further submitted that accused had taken a loan of Rs.2,45,000/ from the complainant through various cash receipts to meet their personal and business needs in the year 1992 and 1993 and apart from that accused Suresh Talwar through his wife Savita Talwar had taken a loan of Rs.20,000/ from the complainant. Thereafter, the accused by way of compromise, also handed over a cheque for a sum of Rs.4,95,000/ for and on behalf of his company to the complainant through his wife accused no. 3 towards the said loan amount including interest in lumpsum vide cheque no. 945459 dated 03.04.1998 drawn on CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 8 Syndicate Bank, Hotel Janpath, New Delhi against the other outstanding debts of the complainant other than the abovesaid case. After presentation of the cheque, the cheque got dishonoured vide returning memo dated 02.06.1998 for the reason "Account Closed". The cheque returning memo is exhibited as Ex. CW1/B. It is averred by Ld. counsel for the complainant that as all the ingredients of Section 138 NI Act are being fulfilled in this case, accused has committed an offence u/s 138 of NI Act and he may be convicted for the said offence.
16. The relevant extract of the complainant, PW1 is as follows: "I know accused Suresh Talwar since 198889, being my neighbour and we were on visiting term.
I do not remember the details of transactions date wise, monthly or yearly in respect of accused Suresh Talwar during the year 199192. So is my reply with regard to year 199293. I do not remember when and how much amount I paid to the accused during the aforesaid period.
I initially pay a sum of Rs.2,45,000/ to the accused plus Rs.35,000/ to the wife of the accused in different dates and different sums. I can produce the same again said the amount Rs.2,45,000/ was given in cash. I cannot specifically tell the specific amount, month of year of the aforesaid payment made to the accused again said payments were made during the financial year 19911993 and 19931993. 199192 I mean the period from 1491 to 31.3.92 and year 1992 I mean the period 1492 to 31.3.93. It is correct that all these transaction pertaining to this present cheque in complaint has taken place during the said two financial year. I have not maintained any accounts of the above said payment.
It is correct that para 4 I had stated that accused Suresh Talwar took a loan of Rs.2,45,000/ from the complainant through various cash receipt to meet their CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 9 personal and business needs in the year 199293. I do not remember how much loan of money was taken by accused Suresh Talwar during the year 199293 out of Rs. 2,45,000/.
Q. You have stated in para 5 your complaint (Ex.
CW1/M) that at the time of taking the loan of Rs.2,45,000/ accused had also promised and assured the complainant that the accused will return the aforesaid loan of Rs. 2,45,000/ within a period of six month to the complainant. When did the period of six month commenced and when did it end?
A. It is a very old matter. I do not remember when the period of six month commenced and when did it end.
Q. In para 6 of the said complaint you have stated that after the expiry of the period of six months the complainant demanded his money from the accused persons. When did you demand the money?
A. I do not remember the month and the year of the same when I demanded the same. Volunteer that the accused has been dillydallying on one or the other pretext ensuring even to pay after the sale of his house.
Q. Since you have stated that Sh. Suresh Talwar has taken Rs.2,45,000/ as loan in 9293 how come this cheque for Rs.4,95,000/ was issued to you by the accused?
A. Since the said amount was agreed between myself and Savita Talwar wife of the accused on behalf of the accused mutually as lumpsum amount therefore, cheque amount of Rs.4,95,000/ was issued by the accused to me in the month of April 1998.
In the month of April 1998 I had settle the matter with Savita Talwar. During the settlement apart from me and Savita Talwar Sh. Vaid was also present again said it is within the knowledge of Mr. Vaid but I do not remember whether he was present or not.
The loan amount of Rs.2,45,000/ was paid to the accused as well as to his wife in installments which was mostly in cash between the period of 199293 I do not remember as to how much amount was paid in the year CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 10 1992 and how much was paid in the year 1993. The amount of loan was paid to the accused during the period of January 1992 to December 1993.
No loan was given to the accused after 25081993. I do not remember the last transactions made by me to the accused prior to the 25081993. I do not remember as to when I have issued the notice in the prior complaint No. 373/1 dtd. 250893. I cannot produce any document or any record of the transactions of the loan lend by me to the accused (Volunteer) I had lend the money to the accused in good faith and therefore no account was maintained by me.
I had calculated the amount of Rs.2,45,000/ orally. I do not remember when the Exb. PW1/D1 to PW1/D6 were prepared. It is wrong to suggest that these receipts which are Exb. as PW1/D1 to PW1/D6 are forged as they bear different inks. I do not remember when the Exb. PW1/D1 to D6 were handed over to me. The cheque in question Ex. CW1/A was handed over to me between the period of 3rd April 1998 to 300498 in the Patiala House Courts. I do not remember whether it was given on the date of hearing or otherwise.
I do not remember whether cheque Ex. CW1/N was produced by me in the course of presummoning evidence on 23.10.98 (At this stage, the witness has been confronted with his statement dated 23.10.98 and Ex. CW1/N). I still do not remember my statement in Ex. CW1/N. I do not know whether notice Ex. CW1/D dated 06.06.98 was served upon the accused or not as he was out of India from April 1998 to September 1999.
I do not have any correspondence or communication with accused Suresh Talwar from 1991 to till today. A part of the loan was shown by me in my Income Tax Return. After checking my record I will be able to tell about the year in which it has been shown.
17. Ld. counsel for the accused has also filed written memo of final arguments and placed reliance upon the judgments of Hon'ble High Court CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 11 of Delhi and Hon'ble Supreme Court of India. I have perused all these judgments. Relevant judgments have been quoted out of these judgments as and when required while writing of this judgment.
18. Section 118 (a) and 139 of NI Act are reproduced herein for ready reference: Section 118 of NI Act reads as under : 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for 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."
and section 139 of NI Act reads as under : 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."
19. As per section 118 (a) of the Act, there is presumption in favour of Complainant that the instrument i.e. cheque in dispute is issued for a consideration and further under section 139 of the Act it shall be presumed, unless the contrary is proved, the holder of the cheque received the cheque for discharge, in whole or in part,or any debt or other liability.
20. Section 138 of the Negotiable Instrument Act has three ingredients CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 12 viz: (I) that there is a legally enforceable debt;
(II) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (III) that the cheque so issued had been returned due to insufficiency of funds.
21. It would be appropriate to quote here the Hon'ble Supreme Court of India's judgment in Rangappa vs. S. Mohan, (2010) 11 SCC 441 which reads as under :
"It must be remembered that the offence made punishable by Section 138 can be better described as regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities.' Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 13
22. A presumption is a legal or factual assumption drawn from the existence of certain facts. It was furthermore opined that if the accused had been able to discharge his initial burden, thereafter it shifted to the second respondent in that case.
23. The nature and extent of presumption came up for consideration before the Apex Court in M.s. Narayana Menon Alias Mani vs. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held:
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case."
"30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. It is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the accused relies. The accused need not disprove the prosecution case in its CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 14 entirety. Moreover, the onus on an accused is not as heavy as the of the prosecution. It may be compared with that on a defendant in a civil proceedings. Thus, it was for the accused only to discharge the initial onus of proof. He was not necessarily required to disprove the prosecution case. Whether in the given facts and circumstances of a case the initial burden has been discharged by an accused would be a question of fact. It is a matter relating to appreciation of evidence. "38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a fortiori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirely as has been held by the High Court."
24. The Hon'ble Supreme Court of India has clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution.
25. Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16 has observed that :
"Provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 15 Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
26. Then again, Hon'ble Supreme Court in K. Prakashan vs. P.K. th Surenderan decided on 10 October, 2007 has dealt with the aspect of friendly loan and scope of presumptions of law. In para 12 and 13 of the above mentioned judgment wherein it is stated that :
12. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein 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. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis - vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
13. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.
27. In the light of all above citations and legal position, it can be safely concluded that :
a) Presumptions u/s 118 and 139 of the N.I. Act are in favour of CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 16 the complainant.
b) The standard of proof for rebutting the presumptions for the accused is preponderance of probabilities, therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
c) The accused is not required to step into the witness box for rebutting the presumption u/s 118 and 139 of the N.I. Act. He may discharge his burden on the basis of materials already brought on record and the circumstances brought on record.
d) Where there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the doubt to the accused.
28. Taking into consideration the above said facts, circumstances, evidence on record, judgments relied upon by both the counsels, the arguments tendered by both the parties and after appreciating the evidence on record, This court is of the view that the accused persons have created a reasonable doubt in respect of liability, issuance of cheque to the complainant and above all consideration itself i.e. giving of the loan by the complainant to the accused.
29. Reasons of this finding are as under :
(i) The complainant is not able to disclose the material particulars about the alleged loan of Rs.2,45,000/ given by the complainant to the accused. The complainant neither in his testimony nor in his complaint has mentioned the date or even month on which the said loan was extended to accused persons. Rather, the complainant has deposed that he has CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 17 calculated this amount of Rs.2,45,000/ orally. The relevant portion of complainant's testimony is reproduced herein "I do not remember the details of transactions date wise, monthly or yearly in respect of accused Suresh Talwar during the year 199192. So is my reply with regard to year 199293. I do not remember when and how much amount I paid to the accused during the aforesaid period. I cannot specifically tell the specific amount, month or year of the aforesaid payment made to the accused again said payments were made during the financial year 19911993 and 19931993. 199192. I do not remember how much loan of money was taken by accused Suresh Talwar during the year 199293 out of Rs. 2,45,000/. I had calculated the amount of Rs.2,45,000/ orally." Thus, it is clear from the testimony of the complainant that he is not able to disclose even the specific amount, month, year or date of the alleged loan transaction.
(ii) It is the case of the complainant that he knows the accused since the year 198889 and used to extend loans to the accused Suresh Talwar and his wife Savita Talwar. It is not in dispute that prior to this complaint case, another complaint bearing no. 373/1 dated 25.08.1993 was filed by the complainant against the same accused persons. The proceedings in that earlier complaint case no. 373/1 remained pending in another court from 25.08.1993 to 30.04.1998. The said complaint was in respect of two cheques (one cheque of Rs.75,000/ and another of Rs.20,000/) amounting to Rs.95,000/. It is further submitted and admitted by both the parties that the matter was compromised by wife of the accused herein and a sum of Rs.2,20,000/ was paid to the complainant in lieu of Rs.95,000/. CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 18 (relevant certified copies of previous complaint case between the same parties is also on record.). It is further contended that the earlier complaint case between the same parties was disposed off in April, 1998. The present cheque in question Ex. CW1/A dated 03.04.1998 was issued by or on behalf of the accused Suresh Talwar in same year i.e. 1998 in favour of the complainant for the discharge of alleged loan taken in the years 19911993. It seems to be further improbable as a prudent man who is into litigation for a case u/s 138 of NI Act with the same accused for almost five years would again accept a cheque from the accused persons. Hon'ble Madras High Court in Abdul Raheem vs. U.P.K. Mohammed Haneefa, 2004 CRL. L.J. 2812 has held that :
Negotiable Instruments Act (26 of 1881), S. 138 Dishonour of cheque"Legally enforceable debt" Allegation that cheque issued by accused to complainant in discharge of handloan of Rs.60,000/ borrowed from complainant got dishonoured - Story of handloan put forth by complainant was improbable in view of strained relations between parties and pendency of litigations between them - Plea of accused that complaint along with some other persons had shortched away a series of cheques from him was acceptable in view of fact that cheque number of complaint filed by complainant and another companions of complainant started with same number.
(iii) One of the line of defence of accused is that even if the alleged transaction of loan is believed to be true, as the loan transaction pertains to the year 19911993 and in discharge of that loan, the cheque in question is issued in the year 1998. The debt would not be legally recoverable as it is barred by limitation.
CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 19 Ld. counsel for the accused has forcefully argued in his defence that the cheque has not issued in discharge of legally enforceable debt as the present debt, if any, is time barred.
Hon'ble High Court of Delhi in Prajan Kumar Jain vs. Ravi Malhotra, 2009 [4] JCC [NI] 310 wherein it is stated that :
"An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgment being in writing. It was thus not a valid acknowledgment. Cheques issued on 25.3.2005 and 30.4.2005 were clearly outside the period of limitation.
Hon'ble High Court of Delhi in M/s Vijay Polymers Pvt. Ltd. & Anr., vs. M/s Vinnay Aggarwal, 2009 [2] JCC [NI] 143 wherein it has been held that :
6. A perusal of the complaint and other documents as referred to above goes to show that the complainant had paid a sum of Rs. 6 lakhs by way of cheque to petitioner No. 1 at the asking of petitioner No.2 somewhere in January, 2002 and the said cheque was credited in the account of petitioner No. 1 on 1.2.2002 and was payable after six months, and was not paid within three years from 31.8.2002 that is the period within which it was under limitation and as such the loan became time barred as on 31.8.2002. A perusal of the complaint also clarified that first two cheques which stated to have been paid to the complainant by the CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 20 petitioners were paid on 27.4.2006 and 31.5.2006. Thus those cheques were paid after three years of the friendly loan having became time barred. Similarly, the cheques issued in lieu of the original cheque i.e. a cheque of Rs.
50,000/ bearing No. 817773 dated 30082006 and another cheque bearing No. 350562 dated 05052007.
11. At this juncture, it would also be appropriate to take note of Section 18 of the Limitation Act which deals with acknowledgment and explanation of limitation which reads as under : Section 18. Effect of acknowledgment in writing (limitation act) (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation - For the purpose of this section,
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to setoff, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 21 order shall not be deemed to be an application in respect of any property or right.
12. A perusal of the aforesaid provision clearly goes to show that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgment if any, must be there before period of limitation is over, which is not the case.
Therefore, in view of the above stated judgments, the debt, if any, in the present case in hand is a timebarred debt. As per statement of the complainant, the alleged loan was given in the years 199293 and cheque in question was given in the year 1998 for discharge of alleged loan given in the year 199293. Thus, the cheque in question was issued after the expiry of three years which is the period of limitation. Acknowledgment, if any, in order to extend period of limitation is also to be made before the expiry of period of limitation in a given case.
(iv) Further, the complainant has failed to prove that there had been any relation between himself and the accused Suresh Talwar since the year 1991. Complainant in his evidence i.e. crossexamination has deposed that "I am having no communication with Suresh Talwar since 1991". It is the own case of the complainant that the present cheque in question was issued by the wife of the accused Suresh Talwar in the year 1998 i.e. on 03.04.1998 on behalf of the accused Suresh Talwar. Thus, cheque in question is not even issued by accused Suresh Talwar. The complainant has not even made the wife of the accused as witness. Rather it is submitted by both the complainant and accused that wife of the accused Savita Talwar filed a criminal complaint case against the complainant but CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 22 that case was dismissed for nonprosecution. Thus, the defence of the accused that the present cheque in question was not issued to the complainant by him seems to be probable.
(v) Another defence of the accused is that the account of the accused from which the cheque in question has been drawn was closed on 06.08.1993 and the remaining cheques from the cheque book of same account were surrendered to the bank on the same date. And, the present cheque in question was not issued to the complainant in the year 1998 and it is being misused by the complainant. The cheque in question is the cheque no. 945459 from the account no. 273. It is not in dispute that the cheque in question dishonoured for the reasons "Account Closed".
It is evident from the attested true copy of the statement of account i.e. Ex. PW3/A that the other cheques which are of the later serial no. 945463, 945465 and 945466 were used in the year 1993 and prior to 06.08.1993 on which date the account of the drawer (the accused Suresh Talwar) of the cheque in question was closed.
In view of the judgment of Hon'ble Supreme Court of India in K. Prakashan's case (supra) wherein it has been held that :
(iv) From Ext. D1 the counterfoil of the chequebook issued to the appellant from the bank it appeared that whereas Cheque No. 782460 was presented before the bank for collection of the dues on 30121993, Cheque No. 782451 of the same chequebook reached the bank only on 811996.
It was, therefore, opined that if the last cheque reached the bank for collection on 30121993, in normal and reasonable course Cheque No. 782451 must have been issued even prior thereto.
CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012 23 The above stated reasoning of the Ld. Trial Court in this case was upheld by the Hon'ble Apex court. Same is applicable in the present case. How improbable it is that the accused kept this very cheque in question with him and surrendered/used all other remaining cheques in the year 1993.
30. In view of the above discussion and reasons, the alleged loan transaction between the complainant and the accused itself is rendered improbable and this court has come to the conclusion that complainant has failed to prove his case against the accused. The accused has created a reasonable doubt about the existence of a legally enforceable debt or liability and when the burden of proof again shifted upon the complainant, the complainant has failed to discharge that burden. Accused persons are acquitted for offence under section 138 NI Act. Bail bond and surety bonds of accused are extended u/s 437A of Cr. P.C. After compliance file be consigned to record room.
Announced in open court (Surabhi Sharma Vats)
rd
on 03 Day of March, 2012 MM01 (138 N.I. Act)
PHC/New Delhi
CC No. 568/1/10 MM01 (138 N.I. Act) : 03.03.2012