Delhi District Court
Sh. Sanjeev Kumar vs . on 12 September, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No. 135/SP/18
Comp. ID No. 1226/16
IN THE MATTER OF: -
Sh. Sanjeev Kumar
S/o Sh. Shyam Lal
R/o G-45, First Floor,
Block-G, Dilshad Garden,
Shahdara, Delhi. ....Complainant
VS.
Sh. Kailash
S/o Hari Chand
R/o C-15, Old Seemapuri
Delhi-95. ...Accused
Date of institution : 30.05.2014
Date on which order reserved : 23.07.2018
Date of final order : 12.09.2018
COMPLAINT UNDER SECTION 138/142 OF NEGOTIABLE
INSTRUMENT ACT
JUDGMENT:
1. This is a complaint U/s 138 of Negotiable Instrument Act, filed by the complainant Sanjeev Kumar against the accused Kailash in respect of alleged dishonour of cheque bearing no.
Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 1 of 14 000028 dt. 25.04.2014 of Rs. 30,000/- drawn on Bank of India, Dilshad Garden Branch, Dilshad Colony, Delhi which was allegedly issued by accused to complainant towards discharge of legal liability.
2. It is the case of complainant that accused had borrowed a friendly loan of Rs. 50,000/- for his personal use from the complainant with the assurance to return the same on or before 15.07.2013 and when the accused failed to refund the said amount within the assured period, complainant asked the accused to refund the above said amount and then to discharge his part liability against the friendly loan accused had issued a cheque bearing no. 000027 dt. 22.07.2013 of Rs. 30,000/- drawn on Bank of India, Dilshad Garden, Delhi-95 with assurance that said cheque will be encashed on its presentation and also assured to make the remaining payment of Rs. 20,000/- very soon. Thereafter, complainant had presented the above said cheque with his banker for encashment but same was returned unpaid vide return memo dt. 24.07.2013 with remarks "Funds Insufficient". It is alleged that complainant had informed the accused about the dishonour of the cheque and requested him to pay the above said loan amount but he flatly refused to make the payment and thereafter complainant had sent a legal notice of dt. 01.08.2013 through registered AD which was duly served upon the accused but despite that accused has not discharged his liability against the said cheque. It is further stated in the complaint that after repeated request by the complainant to the accused to pay the balance amount of Rs. 20,000/- alongwith interest, accused issued a Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 2 of 14 cheque bearing no. 000028 dt. 25.04.2014 of Rs. 30,000/- drawn on Bank of India, Dilshad Garden, Delhi-110095 to discharge his remaining liability alongwith interest with assurance that said cheque will be encashed on its presentation. Thereafter, complainant had presented the above said cheque with his banker for encashment but same was returned unpaid vide return memo dt. 29.04.2014 with remarks "Funds Insufficient". It is alleged that complainant had informed the accused about the dishonour of the cheque and requested him to pay the above said loan amount but he flatly refused to make the payment and thereafter complainant had sent a legal notice dt. 13.05.2014 through registered post which was duly served upon the accused but despite that accused has not discharged his liability against the cheque in question. Thereafter present complaint has been filed.
3. After recording the pre-summoning evidence of complainant, cognizance of offence was taken against accused in respect of offence U/s 138 of NI Act and summons were issued against the accused for offence U/s 138 of NI Act.
4. After supply of complaint along with documents to the accused, notice of accusation U/s 251 Cr.P.C was framed against the accused vide order dt. 29.09.2014 to which the accused pleaded not guilty and claimed trial.
5. Thereafter matter was proceeded to stage of Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 3 of 14 complainant's evidence. Complainant has examined himself as CW-1 and filed his examination-in-chief by way of affidavit Ex. CW1/1 & CW1/2 and relied upon documents i.e. Cheque bearing no. 000028 dt. 25.04.2014 as Ex. CW1/A, return memo dt. 29.04.2014 as Ex. CW1/B, legal notice as Ex. CW1/C and postal receipt as Ex. CW1/D. CW-1 was also cross-examined by the ld. Defence Counsel. Thereafter, vide order dt. 04.07.2016, CE was closed. Statement of accused U/s 313 Cr.P.C. was recorded. In his statement U/s 313 Cr.P.C., accused set up defence that he had issued the said cheque to the complainant on account of security as they are member of a chit fund committee and he had already made the payment to the complainant and after the payment of committee, complainant refused to return the said cheque to the him on his asking the same. Accused opted to lead DE and examined one Sh. Rajeev Jindal as DW-1. Thereafter, vide order dt. 24.07.2017, DE was closed.
6. I have heard the final arguments on behalf of the parties and perused the record and also gone through the written submissions filed on behalf of accused.
7. Culpability for the offence of dishonor of cheque under Section 138 of the NI Act requires that the accused should have drawn the cheque on a bank account maintained by him and issued the same to the complainant in discharge of a debt or other legal liability. It further enjoins the payee to send a notice to the drawer demanding payment of the cheque amount within 30 days of the Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 4 of 14 dishonor of the cheque. It is only upon non payment of the cheque amount within 15 days of the receipt of demand notice that the complainant is at liberty to file a criminal complaint against the drawer for dishonor of the cheque.
8. In the present case, all the statutory time limits stand complied with. As the accused has admitted the receipt of legal demand notice in his statement U/s 313 Cr.P.C., I shall deal with the decisive issue i.e. whether the cheque in question was issued by the accused to the complainant in discharge of any legal liability owed to him.
9. Before proceeding further, it would be germane to refer to the well settled propositions of law and jurisprudence on issue of dishonour of cheques. The Negotiable Instrument Act, 1881 raises two rebuttable presumptions which are as follows:
1. Presumption U/s 118(a): According to Section 118(a) of Negotiable Instrument Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the instrument was made for valid consideration, until the contrary is proved.
2. Presumption U/s 139 : According to Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 5 of 14 Section 139 of NI Act, it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability. Under section 139 NI Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the drawer of the cheque and once complainant has discharged this initial burden only then onus shifts to accused to discharge the burden U/s 118(a) and 139 of Negotiable Instrument Act by standard of proof of "preponderance of probability".
10. It was observed by Hon'ble Supreme Court of India in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54, that essential ingredients of section 138 of Negotiable Instruments Act, 1881 are:-
1. that there is a legally enforceable debt;
2. that cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 6 of 14 legally enforceable debt and;
3. that the cheque so issued had been returned due to insufficiency of funds.
11. It has been clearly held by Hon'ble Supreme Court of India in Rangappa Vs. Shri Mohan (2010) 11 SCC 441 that presumption of Section 139 of NI Act 1881 includes presumption regarding existence of legally enforceable debt or liability and presumption contemplated U/s 139 of NI Act is rebuttable presumption and it is enough for the accused to rebut the presumption by preponderance of probabilities.
12. Having dwelt upon the law, I shall now deal with the merits of the present case as regards the issue that whether the cheques in question was issued by the accused to the complainant in discharge of any legal liability owed to him.
13. In order to analyze the testimony of the parties and the witnesses, it would be pertinent to summarize the defence taken by the accused. The accused in his statement u/s 313 Cr.P.C. has taken a defence that he had issued the said cheque to the complainant on account of security as they are member of a chit fund committee and he had already made the payment to the complainant and after the payment of committee, complainant refused to return the said cheque to the him on his asking the same.
Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 7 of 14
14. On the other hand, the complainant's case is that accused had borrowed a friendly loan of Rs. 50,000/- from him and against the said loan, accused had issued/given above said cheque in question to the complainant in discharge of his remaining legal liability alongwith interest.
15. In background of aforesaid legal propositions and the factual matrix of the case, the contentions and the challenge of the accused have to be examined as to whether accused has placed enough and cogent material before this Court to rebut said statutory presumption which arose in favour of complainant. It is settled law that in trial U/s 138 of NI Act, accused can either show that consideration and debt did not exist or consideration and debt is so probable that prudent man ought to suppose that no consideration or debt existed.
16. This case is intricately connected with another case bearing Computer ID no. 476/16 titled as "Sanjeev Kumar Vs. Kailash" between the same parties as both cases pertain to one single loan amount of Rs. 50,000/-. In the prior case i.e. Computer ID no. 476/16 (filed on 13.09.2013), it is alleged that the complainant gave a friendly loan of Rs. 50,000/- to the accused to be returned on or before 15.09.2013 against the return of which accused gave cheque no. 000027 dt. 22.07.2013 for Rs. 30,000/- in discharge of part liability with assurance to return the remaining amount of Rs. 20,000/- soon. In the present case, after reiterating the above said Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 8 of 14 facts, it is further stated that said cheque no. 000027 got dishonoured upon which the complainant served legal notice dt. 01.08.2013 upon the accused and filed complaint case U/s 138 NI Act (i.e. Computer ID no. 476/16). Under para no. 7 of the present complaint, it is stated that as and when the complainant requested the accused to pay the balance amount of Rs. 20,000/- alongwith interest, the accused avoided to pay and after repeated request the accused issued the present cheque bearing no. 000028 dt. 25.04.2014 for Rs. 30,000/- in discharge of his remaining liability alongwith interest. Here, it is pertinent to note that the issuance of the cheque in question bearing no. 000028 by the accused is itself doubtful as already his previous cheque no. 000028 had been dishonoured with respect to which a complaint case U/s 138 of NI Act was filed against him in which he appeared and there were no talks of settlement or compromise between the parties in the said earlier case which was pending trial as on the date of issuance of the cheque in question. In his cross- examination, CW-1/Complainant stated that cheque no. 000028 was given by accused in April, 2014 at his shop and nobody was present there at that time. For the sake of repetition, it is again noted that the accused had already put in appearance in the said earlier case on 01.03.2014 and on the next date i.e. 16.07.2014 both parties were present and the order sheet does not record any terms of settlement/compromise between the parties. There is no reflection from the record of the said prior case that accused has given another cheque of Rs. 30,000/- in discharge of remaining liability towards the same loan. Therefore, there is no likelihood in such circumstance Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 9 of 14 that the accused after having appeared in a case, filed by the complainant, would approach the complainant at his shop and would hand over another cheque to discharge liability of the same loan. Moreover the phrase "remaining liability" as stated in para no. 7 of present complaint is itself misconceived for the reason that there is already a previous standing liability of Rs. 30,000/- on account of dishonour of earlier cheque no. 000027.
17. Furthermore, it is noted that while in the present complaint the date of return of loan is mentioned as on or before 15.07.2013 while in the abovesaid earlier case bearing computer ID no. 476/16 the said date is 15.09.2013. The complainant/CW-1 admitted in his cross-examination regarding this difference in the date but offered no explanation in this regard. There is no submission or application from the side of complainant that the difference in mentioning the date is on account of typographical or other error. In his complaint, the complainant has also not stated any date, year or month as to when the accused approached him or as to when he advanced the alleged friendly loan of Rs. 50,000/- to the accused but in cross-examination complainant/CW-1 deposed that he gave the loan in the year 2012 and does not remember the date and month. The fact of complainant/CW-1 not having remembered the date and month of grant of alleged loan of Rs. 50,000/- further raises doubts upon his case. Here, it is also noted that complainant/CW-1 admitted that in the cheque in question the amount in words, name and date are in different ink compared to the ink used in writing the amount in Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 10 of 14 figure and signature.
18. Further, while in the complaint, it is stated that the accused sought loan for personal use but in cross-examination,the complainant/CW-1 deposed that the loan was given for marriage of accused's daughter. CW-1 admitted that he did not mention this reason in his complaint. It is to be noted that CW-1 could not even remember the date month and year of marriage of accused's daughter. He could not even tell her name. He also deposed that he did not attend her marriage. From the complaint, it is noted that father's name of the accused is also not disclosed and simply the words "NOT KNOWN" is mentioned for the parentage of the accused in the memo of parties. In the opening para of complaint, it is stated that accused and complainant were having friendly relations with each other for last several years. CW-1 in his cross-examination even deposed that he knows the accused for 15 years. It is thus astonishing to observe that while complainant had friendly relations with the accused for several years, he does not even know the father's name of the accused and the date, month or year of marriage of accused's daughter or her name and even did not attend her marriage despite having granted loan to the accused for the said marriage. These facts also caste a doubt upon the case of the complainant.
19. Further analyzing the testimony, it is noted that CW- 1/complainant in his cross-examination deposed that he has not Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 11 of 14 shown the present loan in his ITR. Thus, the said amount of Rs. 50,000/-, allegedly advanced as loan by the complainant, is the unaccounted money of the complainant. Regarding interest, complainant/CW-1 deposed in his cross-examination that he did not charge any interest as it was interest free loan but he also deposed that he mentioned in his complaint, notice or affidavit that the loan in question was with interest. It is to be noted that in the said earlier case computer ID no. 476/16 the complaint has not mentioned about charging any interest and states about the loan as friendly loan but in the present complaint, it is stated that the accused gave the cheque in question i.e. cheque no. 000028 for Rs. 30,000/- in discharge of his remaining liability alongwith interest. As per the complaint, the remaining liability is stated as Rs. 20,000/- while the cheque amount is Rs. 30,000/- which implies that the interest amount is Rs. 10,000/. However, no calculation of such interest is given by the complainant. Thus, contradictory version is seen in both cases which again raises serious clouds upon the case of complainant.
20. Accused in his statement U/s 313 Cr.P.C. raised his defence that the cheque was given as security being member of Chit Fund Committee organised by complainant and despite payment being already made the complainant did not return the cheque to the accused. Accused also examined one witness in his defence who deposed in his favour. CW-1, in cross-examination, denied to the suggestions as to the defence put to him.
Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 12 of 14
21. It was held by Hon'ble Supreme Court of India in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54 that it is not necessary for accused to get into the witness box or examine any witness or produce any document, if the accused is able to show that materials available in evidence on the side of complainant and answer elicited from the complainant/complainant witnesses would improbablize the case of complainant, then such degree of proof shall be enough to rebut the presumption and shall shift the burden of proving guilt of accused on complainant and had further opined that standard of proof required from the accused is that of preponderance of probability whereas the standard of proof required in criminal case on the part of prosecution is proof beyond reasonable doubts. Inference of preponderance of probabilities can be drawn from the material on record by the parties but also by reference to the circumstances upon which parties rely. The proof required to be led by accused to rebut the presumption U/s 139 of NI Act can be made not only by leading positive evidence on the side of accused but also eliciting admission from complainant witness by pointing out improbabilities in the complaint case.
22. From foregoing discussion and observations, accused has been able to bring out improbabilities and loopholes in testimony of complainant in his cross-examination thus rendering complainant's case doubtful and has been thus able to rebut the complainant's case by standard of preponderance of probabilities, by bringing out contradictions in his case.
Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 13 of 14
23. Therefore, in view of the mandate of the above noted authority and in light of the analysis made, it is concluded that the accused has been able to discharge the burden of proof by rebutting the statutory presumption attached with the dishonoured cheque in question and in reply of which the complainant has brought nothing on record to establish his case. Consequently, the present complaint is dismissed and accused Kailash is acquitted in this case.
Digitally signedDirectly Dictated on the PRANJAL by PRANJAL
ANEJA
Computer System and ANEJA Date: 2018.09.13
16:50:17 +0530
Announced in the open (PRANJAL ANEJA)
Court on 12.09.2018 Metropolitan Magistrate-01
Shahdra District, Karkardooma
Courts, Delhi.
Comp. ID no. 1226/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 14 of 14