Delhi District Court
M/S Royal Motors Finance Private Ltd. vs . Naresh Kumar on 26 May, 2012
IN THE COURT OF SH. SANJAY JINDAL
JSCCcumASCJcumGJ (NW) : DISTRICT COURTS
ROHINI : DELHI
Unique ID No. : 02404R1300812005
CC No. 1574/10/05
M/s Royal Motors Finance Private Ltd. Vs. Naresh Kumar
P.S. : Alipur, Delhi
J U D G M E N T
a) Name of the complainant : M/s Royal Motor Finance Pvt. Ltd. (Through its Director having its regd.
Office at 1575, Church
Road, Kashmere Gate,
Delhi
b) Name & Address of accused : Naresh Kumar
S/o Sh. Tuli Ram,
R/o : Village & PO :
Pahladpur Banger,
BlockAlipur, Delhi42
c) Offence complained of or proved : 138 NI Act.
d) Plea of the accused : Pleaded not guilty
e) Date of institution of the case : 12.01.2005
f) Date of reserving of Judgment : 26.05.2012
g) Final Judgment : Convicted
h) Date of such Judgment : 26.05.2012
CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 1/12
BRIEF REASONS FOR THE DECISION OF THE CASE :
1 This is a case/complaint U/s 138 of the Negotiable
Instruments Act which was assigned to this Court by the Hon'ble High Court vide Order No. 145192/F.3(4)/MM dated 02.01.2009. 2 The brief facts, as per the case of the complainant, are that the complainant M/s Royal Motor Finance Private Limited is a duly registered as per the provisions of the Indian Companies Act carrying on the business of leasing and finance. It is further alleged that one Sh. Mahesh Chand approached the complainant in the month of April, 2002 for financial help of Rs.2,50,000/ for finance of a truck bearing No. DL 1LC 9123 on hire purchase basis; and after negotiations, the complainant agreed to finance the said vehicle with financial charges of Rs.90,000/ and as such the total financial assistance taken by Sh. Mahesh Chand was to the tune of Rs.3,40,000/ and different documents were executed on 15.04.2002 between the complainant and Mahesh Chand and accused stood as a guarantor on behalf of the borrower. It is further averred that as per the terms and conditions of the agreement dated 15.04.2002, the financed amount was payable by Sh. Mahesh Chand and the accused in his capacity as guarantor in 24 CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 2/12 installments and the last installment was for a sum of Rs.13,400/ while the remaining 23 installments were for a sum of Rs.14,200 each with first installment payable on 15.05.2002. It is further averred that Sh. Mahesh Chand failed to maintain financial discipline of payment of EMI and in fact no payment was made by Sh. Mahesh Chand or by the accused till 15.08.2003 and after much persuasion, he made certain payments in lumpsum in the last week of August, 2003 and October, 2003 and thereafter he became defaulter and despite repeated requests, no further payment was made either by Sh. Mahesh Chand or by the accused, and after great persuasion, the accused and Sh. Mahesh Chand for full and final settlement agreed to pay an amount of Rs.2,30,000/ and the accused being the guarantor for and on behalf of Sh. Mahesh Chand, and in accordance with the terms and conditions of the agreement dated 15.04.2002, in discharge of his liability issued a cheque bearing No. 871331 dated 17.11.2004 for Rs.2,30,000/ drawn on Oriental Bank of Commerce in favour of the complainant. The said cheque was dishonoured on presentation and the accused has failed to make payment despite service of legal notice Ex.CW1/8. Hence this complaint U/s 138 of the Negotiable Instruments Act(NI Act).
CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 3/12 3 The complainant led presummoning evidence and the accused was summoned vide order dated 17.01.2005. 4 On appearance of the accused, notice U/s 251 Cr.P.C for the offecen U/s 138 NI Act was served upon the accused to which he pleaded not guilty on 04.10.2006.
5 During complainant's evidence, the complainant has examined two witnesses i.e., CW1 Sh. Raj Kumar, AR of the complainant and CW2 Sh. Surender Singh, Special Assistant, SBI Chandni Chowk, Delhi. CW1 has deposed as per the contents of the complaint and tendered the documents Ex.CW1/1 to Ex.CW1/15 whereas CW2 is the witness pertaining to statement of account Ex.CW2/A of the complainant company.
6 After conclusion of complainant's evidence, the statement of accused U/s 313 Cr.P.C was recorded and all incriminating evidence was put to him to which he explained that the cheque in question was handed over to the company for his other vehicle's security bearing registration No. HR 38 B 7153. The accused opted to lead evidence in his defence and he has appeared in the witness box as DW1. CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 4/12 7 DW1 Sh. Naresh Kumar has testified that he got financed three vehicles bearing No. HR 38 3153, DL 1LG 3153 and the third vehicle number of which he does not remember, from the complainant company. DW1 has further testified that he received the legal notice Ex.CW1/8 which was replied by him. He has further testified that vehicle No. DL 1LC 9123 is in the name of Sh. Mahesh Chand S/o Sh. Om Prakash and he was the guarantor in the hirepurchase agreement and that he has not handed over any cheque to clear this amount or discharging the liability of Sh. Mahesh Chand. It is further testified that the complainant company not approached him as a guarantor to make pressure upon Mahesh Chand for clearance of amount. His cheques were already in the possession of the complainant company as he has already entered into a hirepurchase agreement with the complainant company for the abovesaid three vehicles and that he has no concern with this case. The accused has been cross examined on behalf of the complainant. No other witness has been examined by the accused.
8 I have heard counsel for the parties and perused the record carefully. It is argued on behalf of the complainant that the CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 5/12 complainant has duly proved on record all the relevant facts and documents and the accused has failed to put forward any defence. On the other hand, Ld. Counsel for the accused has argued that the cheque in dispute was not issued by the accused in respect of the liability arising out of the agreement between the complainant and Sh. Mahesh Chand. It is contended that the cheque was given as security against loan taken by the accused from the complainant in respect of vehicle bearing No. HR 38 B 7153. It is argued that the said loan has already been repaid by the accused and the present cheque has been misused by the complainant. It is further submitted on behalf of the accused that there are material contradictions and discrepancies in the case of the complainant and that the accused is liable to be acquitted. 9 To prove his case, the complainant has examined two witnesses i.e., CW1 Sh. Raj Kumar, AR of the complainant and CW2 Sh. Surender Singh, Special Assistant, SBI Chandni Chowk, Delhi. CW1 has tendered his affidavit as Ex.PW1/A with documents i.e., certificate of incorporation Ex.PW1/1, resolution/authorization letter Ex.PW1/2, Agreement for hire purchase Ex.PW1/3, Cheque Ex.PW1/4, Cheque return memo Ex.PW1/5, letter dated 20.11.2004 CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 6/12 issued by the Chief/Branch Manager to the complainant Ex.PW1/6, Party Account Statement Ex.PW1/7, legal notice Ex.PW1/8 and postal receipts, acknowledgment card, UPC receipt as Ex.PW1/9 to Ex.PW1/13, Reply Ex.PW1/14 to the legal notice and Registered Letter cover Ex.PW1/15. He has been cross examined on behalf of the accused. CW2 is the witness pertaining to statement of account Ex.CW2/A of the complainant company. On the other hand, to rebut the case of the complainant, the accused Naresh Kumar has appeared in the witnessbox as DW1 and relied upon the documents Ex.DW1/1 (colly).
10 In order to attract the liability of the accused U/s 138 of the NI Act, the complainant is required to prove :
a) that the accused issued the cheque No. 871331 dated 17.11.2004 for a sum of Rs. 2,30,000/ to the complainant for the discharge of legal debt/ liability;
b) that the complainant presented the said cheque to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier;
CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 7/12
c) that the said cheque was dishonoured by the banker of the accused due to reasons 'Refer to Drawer';
d) that the complainant made the demand for the payment of said amount of cheque by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheque;
e) that the accused failed to make the payment of the amount of the cheque within 15 days of the valid legal notice of demand; and
f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the NI Act accrued to him.
11 It is clear from the evidence that all the relevant documents have been duly proved on record by the complainant and otherwise also all the basic facts regarding signatures on the cheque, service of legal notice and non payment after service of notice have been admitted by the accused during his statement under Section 313 Cr.P.C. The ingredients of the offence U/s 138 NI Act from (b) to (f) CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 8/12 as mentioned above have not been disputed on behalf of the accused and the same are otherwise also duly proved. The accused has raised a defence only in view of ingredient (a) and it is contended that the cheque was in fact given to the complainant in respect of other loan transaction and the same has been misused by the complainant in respect of the present transaction between the complainant and the principal borrower namely Mahesh Chand. The accused has admitted the existence of agreement regarding the loan advanced to Mahesh Chand by the complainant and as per contents of the said agreement, the liability of the borrower (Sh. Mahesh Chand) and the guarantor (accused herein) was joint and several. It is also admitted by the accused that the borrower Sh. Mahesh Chand had defaulted in repayment of the loan. The accused talks about some part payment made by Sh. Mahesh Chand which is otherwise also not disputed by the complainant. The facts given by the complainant in the complaint and evidence are quite clear and specific while the facts raised by the accused in his defence are not specific enough. The accused has not given the details of the cheques so given by him to the complainant in respect of the other loan transaction which was between the complainant and the accused. The accused has not produced any CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 9/12 corroborative document and he has also not taken any steps to summon the relevant record from the office of the complainant or from any other place. The burden was on the accused to prove his defence that the cheque in question was given to the complainant in respect of the other transaction and not qua the liability arising out of transaction between complainant and Sh. Mahesh Chand where the accused admittedly stood as a guarantor. The accused has miserably failed to discharge the burden lying on him to prove his defence. The accused could have brought on record better evidence to prove his defence but he has opted not to do so and such non production of the better evidence has raised serious adverse inference against the case of the accused. It seems that the defence has been raised by the accused in a casual manner without any serious intention. In absence of any reliable evidence, the defence of the accused is found to be sham, bogus and baseless. The accused has failed to rebut the presumption operating in favour of the complainant that the cheque was issued by the accused in discharge of a legally enforceable debt. 12 As per Section 139 of the NI Act, it has to be presumed, unless the contrary is proved, that the holder of a cheque received the CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 10/12 cheque for the discharge in whole or in part of any debt or other liability. There is legal presumption that the cheque was issued for discharging a liability and such presumption can be rebutted by the person who drew the cheque in dispute but such a presumption operating in favour of the complainant has not been rebutted by the accused by any reliable means.
13 The contradictions and discrepancies referred by Ld. Defence Counsel are minor and natural. There may be some minor variations but the same are very natural in nature and much importance cannot be given to the same as the same do not go to root of the cause. The contention of the Ld. Counsel for the accused does not survive on this aspect as it is settled principle of law that minor contradictions and discrepancies do creep in the statement of prosecution witnesses. In this regard, reliance can be placed on 'Mahmood Vs. State' 1991 RLR 287 wherein following observations have been made : "Minor contradictions are bound to occur as human memory is likely to fade due to lapse of time. Description of occurrence depends on power of observation, power of retention and power of reproduction.
Ancillary matters, unconnected with the CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 11/12 case have no effect. Discrepancies, which do not go to the root of the case, cannot be given weight or undue importance. These are bound to occur even in the statement of truthful and honest witness. Discrepancies occur due to memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. If they do not touch the core of the case, they be ignored."
14 In view of above discussions, I am of the view that all the ingredients of the offence u/s 138 NI Act have been duly established on record either by way of positive evidence or by way of admissions on the part of the accused and the complainant has duly proved on record a case for the said offence beyond reasonable doubts. Hence, the accused Naresh Kumar is convicted for the said offence. Let him be heard on the quantum of sentence.
Announced in the open Court Today on this 26th Day of May, 2012.
(SANJAY JINDAL) JSCC/ASCJ (NW): ROHINI :DELHI CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 12/12 CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 13/12 CC No. 1574/10/05 M/s Royal Motors Fin. (P) Ltd. Vs. Naresh Kumar 14/12