Delhi District Court
Complaint Cases/290/2014 on 30 November, 2015
IN THE COURT OF MS. RAJAT GOYAL
METROPOLITAN MAGISTRATE (SOUTH) 01,
N I ACT, SAKET COURTS : NEW DELHI
CC No. 290/14
Ajipal v. Rakesh Vashisth
1. Complaint Case No. : 290/14
2. Name of the complainant : Ajipal
son of Late Shri Mangat Ram
r/o 237, Khanpur Village,
Devli Road, New Delhi.
3. Name and address of the : Rakesh Vashisth
accused son of Shri Mange Ram r/o
F294, Khanpur Village,
School Road, Dr. Ambedkar
Nagar, New Delhi
4. Offence complained of or : Under Section 138 of the proved Negotiable Instrument Act, 1881
5. Plea of the accused : Pleaded not guilty and stated CC No.290/14 Aji Pal v. Rakesh Vashisht Page 1 to 14 that the cheque in question was not his and he never executed a promissory note in favour of the complainant and that he was not liable towards the complainant.
6. Final Order : Acquitted
7. Date of Reserving the : 27.11.2015 Judgment
7. Date of pronouncement : 30.11.2015 Brief statement of reasons for the decision (as mandated under Section 355 (i) Cr.PC.
1. Briefly stated, case of the complainant is that the complainant and the accused were known to each other. That the complainant advanced a loan of Rs.2,70,000/ to the accused for a period of two months on 01.01.2014. That the accused issued a post dated cheque bearing number 690220 CC No.290/14 Aji Pal v. Rakesh Vashisht Page 2 to 14 dated 01.03.2014 for a sum of Rs.2,70,000/ (hereinafter referred to as the 'cheque in question') in favour of the complainant drawn on his bank account maintained with State Bank of India, Ambedkar Nagar Branch, New Delhi. That the cheque in question was returned unpaid upon presentation on account of insufficient funds vide cheque return memo dated 04.03.2014. That a written complaint dated 21.03.2014 was also given by the complainant to SHO PS Mehrauli, New Delhi in this regard. That a legal notice dated 08.03.2014 was duly sent by the complainant to the accused in this regard, but to no avail. Hence, the present complaint.
2. Upon service of summons, the accused entered an appearance on 01.10.2014. Notice under Section 251 Cr.PC was served upon the accused on 16.12.2014, to which he pleaded not guilty and claimed trial. In his statement recorded Section 263 (g) Cr.PC, the accused stated that the CC No.290/14 Aji Pal v. Rakesh Vashisht Page 3 to 14 cheque in question does not belong to the accused and no promissory note was ever executed by the accused in favour of the complainant. He further denied his liability to pay any amount whatsoever to the complainant. Thereafter, the complainant was cross examined on behalf of the accused in accordance with Section 145 (2) N I Act. Statement of the accused under Section 313 Cr.PC was recorded on 06.07.2015 in which the accused denied having taken any loan from the complainant and stated that the cheque in question was not his and that he never signed any stamp paper. He denied any liability towards the complainant. However, receipt of notice dated 08.03.2014 was admitted by the accused in his statement under Section 313 Cr.PC. The matter was thereafter fixed for defence evidence. Evidence
3. In order to support his case, the complainant examined CC No.290/14 Aji Pal v. Rakesh Vashisht Page 4 to 14 himself as CW1 and tendered his affidavit Ex.CW1/H in evidence wherein the averments made in the complaint were reiterated. The complainant also relied upon various documents such as Ex.CW1/A which is the cheque in question, Ex.CW1/B which is the cheque return memo dated 04.03.2014, Ex.CW1/D which is the legal notice dated 08.03.2014 and postal receipt Ex.CW1/E. Thereafter, the complainant evidence was closed.
4. The accused, on the other hand, examined one Kunal Gaurav as DW1 who was an official of State Bank of India. DW1 tendered into evidence Ex.DW1/A which is bank statement pertaining to account number 30381810586 maintained in the name of M/s Shri Ram Dyers for the period 01.04.2015 to 02.11.2015. Thereafter, the defence evidence was closed and the matter was fixed for final arguments.
CC No.290/14
Aji Pal v. Rakesh Vashisht Page 5 to 14
The law applicable
5. The law regarding the ingredients of the offence punishable under Section 138 N I Act is well settled. It was held by the Hon'ble Apex Court in the case of Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC 683 that following ingredients are required to be fulfilled in a case under Section 138 N I Act:
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in a part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the CC No.290/14 Aji Pal v. Rakesh Vashisht Page 6 to 14 account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
Arguments and appreciation of evidence
6. Ld. Counsel for the complainant has argued that the complainant has successfully proved all the ingredients under Section 138 N I Act and thus, the presumptions arise under Section 118 N I Act read with 138 N I Act in favour of CC No.290/14 Aji Pal v. Rakesh Vashisht Page 7 to 14 the complainant. He has further argued that the accused has failed to rebut the said presumptions. However, I do not find myself to be in agreement with this argument of the ld. Counsel for the complainant. One of the very first ingredients required to be fulfilled for an offence under Section 138 N I Act is that the cheque must be drawn by the accused person on an account maintained by him with a banker. However, it must be noted that in the case in hand, the cheque in question has been drawn on a bank account which is maintained by one M/s Shri Ram Dyers. The complainant has failed to prove as to what is the relation of the accused Rakesh Vashisht with the said M/s Shri Ram Dyers. There is no specific averment, in fact not even a whisper, in the entire complaint as well as the evidence led on behalf of the complainant that the two are in any way related to each other. In fact, the bank witness examined as DW1 on behalf of the accused has also categorically stated that the cheque in question was drawn on account number 30381810586 maintained by M/s Shri Ram Dyers. During his CC No.290/14 Aji Pal v. Rakesh Vashisht Page 8 to 14 cross examination conducted on behalf of the complainant, the said witness has stated that he cannot say as to whether the accused was the authorized signatory for the said bank account maintained by M/s Shri Ram Dyers.
7. Ld. counsel for the complainant has argued that the statement of account Ex.DW1/A pertaining to M/s Shri Ram Dyers shows that address of the accused and that of M/s Shri Ram Dyers is the same and thus, it can be presumed that the accused is the proprietor of M/s Shri Ram Dyers. However, the said argument of the Ld. Counsel for the complainant is devoid of any merit whatsoever. The address of the accused as mentioned in the memo of parties filed by the complainant himself is F294, Khanpur Village, School Road, Dr. Ambedkar Nagar, New Delhi62. On the other hand, the address of M/s Shri Ram Dyers as appearing in Ex.DW1/A is F2/13, School Road, Khanpur, New Delhi62. Thus, it is absolutely clear that M/s Shri Ram Dyers is not even operating from the address of the accused as submitted CC No.290/14 Aji Pal v. Rakesh Vashisht Page 9 to 14 on behalf of the complainant. Even otherwise, the complainant must prove his case beyond all reasonable doubt and not on the basis of surmises and conjectures. Thus, the argument of the ld. Counsel for the complainant that it must be presumed that the accused is the proprietor of M/s Shri Ram Dyers is devoid of any merit whatsoever.
8. Ld. counsel for the complainant has argued that the liability of the accused towards the complainant stands established in view of promissory note Ex.CX which has been executed by the accused in favour of the complainant. Ld. Counsel for the accused has argued that the said promissory note was never executed by the accused. It has been argued on behalf of the complainant that since it is the contention of the accused that the said promissory note Ex.CX was never executed by the accused, the onus to prove the same was upon the accused by examining a handwriting expert, which was never done by the accused, and hence, an adverse inference be drawn against the complainant. I do not CC No.290/14 Aji Pal v. Rakesh Vashisht Page 10 to 14 find myself to be in agreement with this argument of ld. counsel of the complainant. It is true that the onus to prove fraud or forgery lies upon the party who alleges the same. However, in the present case for the onus to prove that signatures on Ex.CX were not of the accused to shift to the accused, the complainant must have discharged the initial onus to prove that the cheque in question was issued by the complainant. It is a settled principle of law that the case of the complainant must stand on its own legs and he cannot seek benefit from the weaknesses in the defence led by the accused. Thus, merely because the accused has not examined a handwriting expert to disprove his signature on promissory note Ex.CX, it cannot be taken to mean that the said promissory note stands proved in accordance with law. It must be mentioned here that there were no attesting witnesses to the said promissory note. Also, the factum of the execution of Ex.CX has not been mentioned in the present complaint and the same was mentioned for the first time by the complainant during the trial of the present case CC No.290/14 Aji Pal v. Rakesh Vashisht Page 11 to 14 on 11.11.2014. This casts a shadow of doubt on the very authenticity of the promissory note Ex.CX.
9. It must also be mentioned here that the complainant has nowhere mentioned in the entire complaint as well as the evidence as to what was the source of the funds vide which loan of the amount of Rs.2,70,000/ was advanced by him to the accused as alleged. It is noteworthy to mention here that during the course of the present trial, it was submitted by the complainant before the court on 05.08.2014 that he has no means to engage a counsel and, thus, a legal aid counsel was supplied to the complainant. In these circumstances when the complainant does not even have the financial means to engage a counsel, it appears utterly difficult to believe that he would have the funds to advance a loan of Rs.2,70,000/ to the accused.
10. Ld. Counsel for the complainant has submitted that the complainant is 100% visually impaired and hence, it is CC No.290/14 Aji Pal v. Rakesh Vashisht Page 12 to 14 possible that he was not aware that the cheque in question Ex.CW1/A handed over by the accused was drawn on a bank account maintained by M/s Shri Ram Dyers. Though this court sympathizes with the complainant, it cannot over look glaring lacunas in the case of the complainant. As already mentioned above, the case of the complainant cannot be based on surmises and conjectures and the accused cannot be sent behind bars in the absence of cogent evidence. I place reliance upon the case of Jugesh Sehgal v. Shamsher Singh Gogi 2009 Lawsuit (SC) 1316 wherein it was held by the Hon'ble Punjab and Haryana High Court that in case the cheque was not issued by the accused on an account maintained by him, the very first ingredient of Section 138 N I Act was not satisfied.
Conclusion
11. In view of the above discussion, I am of the considered opinion that the complainant has failed to establish his case CC No.290/14 Aji Pal v. Rakesh Vashisht Page 13 to 14 beyond reasonable doubt by proving all the ingredients under Section 138 N I Act. The accused Rakesh Vashisht is hereby acquitted for offence punishable under Section 138 N I Act. The case stands dismissed.
on 30.11.2015 (RAJAT GOYAL) Metropolitan Magistrate01 (South), NI Act Saket/ New Delhi/30.11.2015 CC No.290/14 Aji Pal v. Rakesh Vashisht Page 14 to 14