Delhi District Court
Smt. Vinika Suri vs . Shri Inderjeet Singh on 13 August, 2014
IN THE COURT OF SH. ARUN GOEL,
METROPOLITAN MAGISTRATE (N.I ACT - 02),
DWARKA COURTS, NEW DELHI.
Smt. Vinika Suri
W/o Shri Harash Suri
R/o RZ404B, Gali No. 4A,
Sadh Nagar, Palam Colony,
New Delhi
Through Attorney
Shri Harash Suri ....Complainant
Versus
Shri Inderjeet Singh Maggon
S/o Shri Nand Lal Maggon
Proprietor of M/s. Gaurav Sales Corporation
R/o 4616A/13, Jai Mata Market
Tri Nagar,
Delhi110035
Also at:
3823/6, Kanhaiya Nagar,
Tri Nagar,
Delhi110035 ....Accused
\ Serial No. of the case : 6361/14
\ Name of the complainant : Smt. Vinika Suri
\ Date of Institution : 27.04.2013
\ Name of the accused : Shri Inderjeet Singh
\ Date when judgment was : 02.08.2014
reserved
\ Date when judgment was : 13.08.2014
pronounced
CC No.6361/14 Smt. Vinika Suri
Vs. Shri Inderjeet Singh
Page No. 1 of 11
Offence complained of and
proved : U/s 138 NI Act
Plea of accused : Pleaded not guilty
Final Judgment : Acquitted
JUDGMENT
1. Vide this judgment, I shall dispose off the criminal complaint filed Under Section 138 of the Negotiable Instrument (herein after referred as 'NI Act') filed against the accused Shri Inderjeet Singh Maggon. BRIEF FACTS OF THE COMPLAINT ARE AS FOLLOW:
2. The complainant has stated that she is a teacher by profession. The complainant has further stated that accused is acquainted with the husband of the complainant and developed good friendship with him. It is further stated that the accused helped the complainant in his bad time and the relationship between the complainant and the accused developed like family. The complainant has further stated that the accused asked the complainant as well as her motherinlaw for friendly loan starting from June 2006 onwards and they had paid a amount of Rs. 20,00,000/ to the accused till date out of which Rs.5,00,000/ was paid on 20.04.2011 and Rs.2,50,000/ on 30.04.2011 through RTGS. It is also stated that the accused had withdrawn some amount from the self cheques also. The complainant further stated that they demanded the above said amount financed to the accused and the accused issued a cheque bearing No. 037226 dated CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 2 of 11 25.03.2013 of Rs.20,00,000/ to the complainant. He further assured that the same would be encashed on presentation. However, when the said cheque was presented for encashment, it got dishonored on the ground of 'account closed' vide return memo dated 30.03.2013. Thereafter, the complainant issued a legal notice dated 04.04.2013 to the accused calling him to pay the cheque amount within the prescribed period. However, accused failed to pay the amount and the complaint u/s 138 NI Act was filed on 27.04.2013.
3. After filing of the complaint, the complainant examined herself as a witness and tendered her evidence by way of affidavit which was Ex.CW1/1. She led pre summoning evidence and relied upon documents namely:
1. Original cheque in question as Ex.CW1/1.
2. Return memo as Ex.CW1/2.
3. Legal demand notice as Ex.CW1/3.
4. Postal receipts as Ex.CW1/4.
5. Registered AD card as Ex.CW1/5.
4. The accused was summoned vide order dated 03.05.2013. After summoning of the accused, the accused appeared and a notice u/s 251 CrPC was framed upon the accused on 11.07.2013 to which accused pleaded not guilty and claimed trial. After that the complainant led post summoning evidence in this case and examined her husband who tendered his evidence by way of affidavit as Ex.CW1/1 and relied upon documents namely:
1. Special power of Attorney as Ex.CW1/1.
2. Bank statement as Ex.CW1/2.
CC No.6361/14 Smt. Vinika Suri
Vs. Shri Inderjeet Singh
Page No. 3 of 11
3. Receipt of payment of Rs.1,00,000/ as Ex.CW1/3.
4. Cheque as Ex.CW1/4.
5. Return memo as Ex.CW1/5.
6. Legal notice as Ex.CW1/6.
7. Postal receipts as Ex.CW1/7.
8. AD cards as Ex.CW1/8.
9. Income tax returns as Ex.CW1/9 to Ex.CW1/11.
5. Thereafter the said witness was crossexamined by the learned counsel for the accused. The complainant also examined Shri Sunil Sharma from OBC Bank as CW2 to prove the cheques issued by Ms. Amrit Suri. They were exhibited as Ex.PW2/1 to Ex.PW2/3 and CE was closed vide order dated 28.04.2014. Thereafter statement of accused u/s 313 CrPC was also recorded on 28.04.2014. The accused stated that he want to lead DE and opportunity was granted to lead DE. Accused examined himself as a witness. However, he subsequently dropped himself as a witness in this case. The accused also examined DW1 from Punjab and Sind Bank who brought the KYC documents of M/s. R.K. Sales Corporation which was exhibited as Ex.DW1/1 and statement of account of M/s. R.K. Sales Corporation which was exhibited as Ex.DW1/2. Thereafter DE was closed on 17.07.2014. Thereafter the matter was adjourned for final arguments.
6. Final arguments were advanced by the parties.
7. Ld. counsel for the complainant has also relied upon following judgments:
CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 4 of 11 A. AIR 1961 Calcutta 359 (V 48 C 74) A.E.G. Carapiet Vs. A.Y. Derderian. B. AIR 2008 (NOC) 2275 (BOM.) Kalim M. Khan Vs. State of Maharashtra and Anr. C. 172 (2010) DLT 561 V.S. Yadav Vs. Reena. D. 2000 CRI. L.J. 2921 Shailesh Kumar Aggarwal Vs. State of U.P. & Ors. E. (2003) 3 Supreme Court Cases 232 Goaplast (P) Ltd. Vs. Chico Ursula D' Souza And Another. F. 2007 (109) Bom L.R. 1693 Shri Ravikant C. Borkar Vs. Shri Gokuldas Ramchandra Naik And .... G. 2006 CRI. L. J. 3175 M.K. Philip Vs. Gainmore Investment. H. 2002 (3) LJSOFT 32 Prabhakar D. Nair Vs. Jerry S. Viegas. I. 2005 CRL. L. J. 3572 Y. Vijayalakshmi alias Rambha Vs. Manickarm Narayanan. J. (2002) 1 Supreme Court Cases 234 M.M.T.C. Ltd. And Another Vs.
Medchl Chemicals And Pharma (P) Ltd. And Another.
K. 2007 (4) Crimes 198 (A.P.) Karanam Visweswara Rao Vs. State of Andhra Pradesh and Others.
L. 2007 CRI. L. J. 154 M/s. P.V. Constructions Vs. Shri K.J. Augusty. M. 1999 CRI. L. J. 2883 NEPC Micon Ltd. and others Vs. Magma Leasing Ltd.
N. I (2005) B C 41, 2004 (1) KLT 816, 2004 52 SCL 293 Ker Salim Vs. Thomas.
CC No.6361/14 Smt. Vinika Suri
Vs. Shri Inderjeet Singh
Page No. 5 of 11
8. In this case, Ld. Counsel for the complainant has argued that the cheque was issued by the accused for the repayment of the loan that is against legal liability and when the cheque was presented for encashment, it was dishonoured. Thereafter, legal notice was issued upon the accused for making the payment, despite receipt of the legal notice, accused failed to make the payment. Ld. Counsel for the complainant further submitted that all the necessary ingredients of Section 138 NI. Act has been proved and the accused is liable to be convicted under Section 138 of the N.I Act.
9. The Ld. counsel for the accused has stated that the present complaint is not maintainable as the complainant has failed to prove his case. Ld. counsel for the accused has raised the following objection:
(1) The complainant has failed to show the liability of the accused.
10. Ld. counsel for the accused has also relied upon following judgments:
(i) (2008) 2 SCC 321 Rahul Builders Vs, Arihant Fertilizers and Chemicals And Anr.
(ii) AIR 2006 SC 3366 M.S. Narayana Menon @ Mani Vs. State of Kerala and Anr.
(iii) AIR 2008 SC 1325 Krishna Janardhan Bhat Vs. Dattatraya G. Hegde.
(iv) 2013 (V) AD (S.C.) 243 Vijay Vs. Laxman and Anr.
(v) AIR 2008 SC 1325 Krishna Janardhan Bhat Vs. Dattatreaya G. Hegde.
(vi) AIR 2003 SUPREME COURT 182 C. Antony Vs. K.G. Raghavan Nair.
(vii) 2006 (1) ALD (Cri) 4 J. Daniel Vs. The State of Kerala and Anr.
(viii) 2012 (III) BC 477 Pawan Singhal Vs. Gauri Shankar Deora & Anr.
(ix) 2012 (III) AD (Delhi) 545 S.S. Chouhan Vs. State & Anr.
CC No.6361/14 Smt. Vinika Suri
Vs. Shri Inderjeet Singh
Page No. 6 of 11
(x) 2008 Cri. L.J. 1509 Mr. Roy Joseph Creado, Mr. Anil Parshuram Sawant and Mr. Yogesh Jayantilal Mehata Vs. Sk. Tamisuddin S/o Late Sk. Nazir Ahmed, Mr. K.N. Tungar, IVth Additional Sessions Judge and State of Maharashtra.
(xi) 2013 (8) AD (Delhi) 465 Satish Kumar Vs. State NCT of Delhi & Anr.
(xii) Manu/DE 2779/2009 Vipul Kumar Gupta Vs. Vipin Gupta.
(xiii) 2012 (8) AD (Delhi) 218 Vipul Kumar Gupta Vs. Vipin Gupta.
(xiv) 2008 Cri. L.J. 3353 Binod Kumar Lall Vs. State of Jharkhand and Anr.
(xv) ILR 2011 (3) Kerala 365 Santhi C. Vs. Mary Sherly and Anr. (xvi) 2013 (2) ABR 398 VPK Urban Cooperative Credit Society Limitd, with its Head Office at Mardol, PondaGoa, duly represented herein by its Legal Officer, Ms. Ratna S. Amonkar, Major in age, Service, Residing at Caranzalem, PanajiGoa Vs. Mrs. Nandini Shankar Waingade, Resident of Flat No. C5, Dhanalaxmi Nagar, Bhatalem, PanajiGoa and State of Goa, through its Public Prosecutor, High Court of Bombay at Goa.
11. Coming to the contention of the accused. In the present case, the accused has stated that the complainant has failed to show the liability of Rs. 20,00,000/ as claimed from the accused. The complainant in pre summoning evidence had examined herself as a witness in this case. However, during post summoning stage, she examined her husband Harsh Suri as a attorney. The complainant did not examined herself as a witness in the present case. The attorney has stated in his affidavit by way of evidence that he is fully conversant with the facts of the case. However, the said witness was cross examined by the counsel for the accused in this case. During cross examination he admitted that 'it CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 7 of 11 is correct that I am deposing as information, facts given by the complainant defacto'.
12. Perusal of the above admission of the witness clearly states that he is not the witness to the facts and he is deposing as per the information provided by the complainant. His evidence is here say and is not admissible in evidence. There is no other evidence on record to prove the case of the complainant.
13. However, even for the sake of argument it is admitted that the evidence of the complainant is read in evidence even then the complainant has failed to prove her case. The complainant has stated that the amount was given by herself and her motherinlaw to the accused. She has further stated that some amount was given through self cheques. These cheques have been exhibited as Ex.PW1/1 to Ex.PW1/3. The witness from the bank as PW2 was examined who stated that the amount of the self cheques has been given to the signatory of the cheque. The cheque on the back side bears both signature of the motherinlaw of the complainant i.e. Smt. Amrit Suri and the accused as well. On the front side of the cheque only the signatory of the drawer i.e. Smt. Amrit Suri is there. In that case it was essential for the complainant to reexamine the witness to prove whether the amount was given to the accused or not but that has not been done in this case. It has also come on record during the cross examination of CW1 that the amount was given by some amount which is claimed by the complainant from the cheque in question was givenm by the motherinlaw of the complainant Smt. Amrit Suri. The witness admitted that she has expired. However, he had stated that he does not know whether there is any will or authority issued in favour of the complainant to claim the amount that was advanced by Smt. Amrit Suri. The CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 8 of 11 witness stated that Smt. Amrit Suri as well as the complainant are having joint account so she is entitled to claim the amount which was given by Smt. Amrit Suri to the accused. However, he has not brought any record showing his authority to claim the amount. The joint account from which the amount has been given is in the name of the complainant and her motherinlaw Smt. Amrit Suri. However, having a joint account does not give any right to one of the account holder to claim the amount which is given by other joint account holder from that account. He could only claim that amount if some authority is provided by the other joint holder who has given the amount. Moreover, in this case there is no will in favour of the complainant and moreover she is not a classI heir of Smt. Amrit Suri.
14. The accused in this case has disputed his liability and stated that the amount claimed by the complainant from the accused is not due upon him. The complainant in this case has not filed on record any statement of account. The AR for the complainant during his cross examination has stated that the complainant is not maintaining any statement of account. However, on cross examination conducted on 28.04.2014 he admitted the suggestion that complainant was maintaining a mutual running account with the accused. In that case as she was maintaining mutual and running account it was essential for the complainant to bring on record the statement of account of accused showing his liability. The complainant in this case in order to show his ability to lend the money to the accused has filed on record income tax return for the year 201011, 201112 and 201213 which are exhibited as Ex.CW1/8 to Ex.CW1/10 respectively. Perusal of these statements reveals that huge amount has been shown in asset and liability as loan and advance to other person. When the AR of CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 9 of 11 the complainant was examined by the counsel for the accused, during his cross examination he stated that he does not want to answer the question as to whether the accused has advanced money to other persons also. The answer of the AR for complainant as well as his income tax statement clearly shows that the complainant is engaged in the business of money lending. If she is engaged in the business of money lending, she will be maintaining proper books of account and that was essential which has been upheld by the complainant. It is well settled law that the witness who comes in the witness box shall come with clean hands and told the facts truthfully. When the AR of the complainant was cross examined by the counsel for the accused he stated that he had gone with the complainant to Delhi High Court for the purpose of attestation of the Power of Attorney. However, perusal of the Power of Attorney reveals that it is not a attested document. The counsel for the accused cross examined the AR for the complainant with regard to his truthfulness. He asked that whether he was running M/s. R.K. Sales at any point of time, he denied the same. The AR stated that M/s. R.K. Sales was in the name of the brother of the accused and he was having a flat in Keshav Puram. The limit was raised in his name but the firm was running by the accused. However, when the witness or the bank was examined by the complainant he brought on record the KYC documents as of M/s. R.K. Sales Ex.DW1/1 which shows that the AR i.e. Shri Harsh Suri is shown as the proprietor of M/s. R.K. Sales. This proves that this witness is not a truthful witness and cannot be relied upon. He has not deposed true facts before the court. The accused has been able to raise sufficient doubt in the case of the complainant.
15. Accordingly, the accused is acquitted. Bail bond stands cancelled and surety if any, stands discharged. Endorsement on documents of surety, if CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 10 of 11 any be cancelled. Original documents of surety, if any be returned against proper identification and acknowledgment.
16. File be consigned to the record room after due compliance. ANNOUNCED IN THE OPEN COURT ON 13.08.2014 (ARUN GOEL) METROPOLITAN MAGISTRATE (N.I.ACT) 02 DWARKA COURTS : DELHI CC No.6361/14 Smt. Vinika Suri Vs. Shri Inderjeet Singh Page No. 11 of 11