Delhi District Court
24) It Was Observed By Hon'Ble Supreme ... vs . on 14 January, 2020
IN THE COURT OF SHRI AVNEESH KUMAR,
LD. MM (NI) ACT, DWARKA COURTS, NEW DELHI
CC No. 4992553/2016
Vishal Lakhanpal,
S/o Sh. Ashok Lakhanpal,
R/o 119, Pocket6, Sector12,
Dwarka, New Delhi110075
.........Complainant .
Versus
Avinash Gupta
S/o Sh. K.R. Gupta,
At Shop No.G5, Ground Floor,
Aggarwal Plaza, Plot No.11
Sector -12, Dwarka,
New Delhi110075
Also at:
House No.6/18B,
Tilak Nagar, New Delhi110016
Email : [email protected]
.........Accused
Offence complained of : U/s 138, NIA. 1881
Date on which the complaint was instituted : 13.07.2015
Plea of the Accused : Pleaded not guilty
Date of Pronouncement of judgment : 14.01.2020
JUDGMENT
Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 1 of 19
1) The brief facts of the case as per the complaint are that the accused requested for a friendly loan and the complainant gave a friendly loan of Rs.20 lakhs in 2014 on the promise that same would be returned within a month or/and as and when demanded. The accused further demanded a loan of Rs.4 lakhs and the complainant gave further friendly loan of Rs.4 lakhs in the year 2014 and accused issued two cheques of Rs.2 lakhs each bearing no. 238581, and 238582 but when the cheques were presented by the complainant they were dishonoured for reason "Payment stopped by drawer". The complainant sent legal demand notice dated 30.05.2015 by registered AD post and courier but the accused did not make the payment despite that, and therefore the present has been filed by the complainant.
2) The accused has relied upon the following documents in his support :
i) Original cheques in question is Ex.CW1/1 & Ex.CW1/2;
ii) Cheque's return memos Ex.CW1/3 and Ex.CW1/4;
iii) Legal notice is Ex.CW1/5;
iv) Courier and postal receipts are Ex.CW1/5(Colly)
v) Registered AD Card is Ex.CW1/7 (Colly).
Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 2 of 19
3) As there was sufficient material on record therefore, summons were duly issued and notice was framed accordingly on 10.09.2015.
4) In the notice the accused stated that he did not take a loan of Rs.24 lakhs from the complainant but he took a loan of Rs.5 lakhs from the complainant in April, 2014 and he already repaid a sum of Rs.11 lakhs to the complainant by April 2015. It is further stated by the accused that the cheque in question was signed by him but other particulars were not filled by him. It is further stated by the accused that he gave 11 blank signed cheques to the complainant at the time of taking loan of Rs.5 lakhs in April 2014 and the cheques in question are part of those 11 cheques. It is further stated by the accused that he has already repaid the loan amount but the complainant has not returned the cheques. It is further stated by the accused that he received legal demand notice and he replied the same.
5) The cross-examination of the complainant took place on 14.12.2015. It is stated by the complainant that he has studied till 12th class and he can understand and read English. It is further stated by the CW1 that he knows the accused for last 10-15 years and they were having cordial relations. It is further stated by the CW1 that he was doing property work in the name of Roots Prop. Malt Pvt Ltd. from last 14-15 years and he become its director in 2015. It is further stated by the complainant that he changed the name of his business to Roop Prop. Malt Pvt Ltd in 2013-14. It is further stated by the Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 3 of 19 complainant that he did not have any fixed income from his business but its about Rs.40-50 lakhs per annum. It is further stated by the CW1 that he also gave loan to one Deep Gaurav but he is not in money landing business, though he also filed a case under NI Act against the Deep Gaurav.
6) (At this stage, the CW1 is shown marked document Ex.CW1/D1). After looking at CW1 states that he never received this document but only empty envelope for which he has already made a police complaint.
7) At this stage, witness is shown legal notice marked CW1/D2(Colly), after looking at it, the CW1 states that he does not remember if he received it. The witness denied the suggestion that he gave two cheques of the accused to Abhimanu Mohitra. It is further stated by the CW1 that the cheques in question were given to him by the accused in May 2015 in duly filled manner but he can not remember the exact dates and he presented those cheques for encashment within 2-3 days. It is further stated by the CW1 that he did not get any document executed when the loan of four lakh was given to the accused but the accused gave him cheque. Again the CW1 states that the cheques were given to him in May 2015.
8) It is further stated by the complainant that the accused has not repaid his loan of Rs.20 Lakhs till now. It is further stated by the complainant that the cheques in question were given to discharge the second loan of Rs.4 lakhs. It is further stated by the complainant that he gave both the loans to the accused by way of cash. It is further stated by the complainant that he gave Rs.20 lakhs to the Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 4 of 19 accused in April 2014 and for this loan he withdrew some amount from bank and remaining amount was with him out of his savings. It is further stated by the complainant that he can not remember how much amount was withdrawn by him from the bank but he can produce his bank statement for the month of April 2014, if required.
9) Further cross-examination took place on 19.12.2016. The witness did not bring the bank account statement for April 2014 and ITR for financial year 2013-14. The CW1 states that he could not collect these documents from his Chartered Accountant. The CW1 further states that he maintains three bank accounts at Vaish Co-operative Bank, ICICI Bank and Corporation Bank. The CW1 further states that he can not remember that from which account he took the money. The CW1 further states that he can not remember his income in 2013-14. The CW1 could not admit or deny that his income was Rs.3-4 lakhs in the year 2013-14.
10) The CW1 denied the suggestion that he took a loan of Rs.26 Lakhs from Vikas Lamba, Vikrant, Jitender and Vikas in November 2013. The witness denied the suggestion that he had a saving of Rs.8 lakhs only in his account as well as at his home.
11) The CW1 further states that he gave amount of Rs.4 lakhs to the accused at his office at Sector -12 Dwarka in the presence of Rakesh Batra and Ravi Sharma and also in presence of some persons whom he does not remember. The CW1 admits the suggestion that Ravi Sharma was the same person who Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 5 of 19 was present when the amount was given to one Deep Gaurav. The CW1 further states that he gave the amount of Rs.20 lakhs to the accused at his office at Sector-12 Dwarka in presence of Rakesh Batra and Ravi Sharma. The CW1 further states that a promissory note was executed for the loan of Rs.20 lakhs and for the loan of Rs.4 lakhs the accused gave him two cheques. The CW1 further states that the promissory note was executed in his presence.
12) At this stage, the witness is shown the copy of promissory note which is Mark D1. The witness denied the suggestion that the promissory note is in his handwriting. The witness denied the suggestion that he did not place the note in this case as the same was prepared by him after filing of this case. The CW1 further states that he gave the note to his counsel before filing of this case.
13) The statement of accused u/s 313 Cr PC was recorded on 19.04.2017. The accused states that he did not take any loan from the complainant but he took a loan of Rs.5 lakhs from one Rakesh Batra and the complainant is working for Rakesh Batra. The accused further states that he has already returned the loan amount along with interest to the tune of Rs.11 lakhs. The accused further states that at the time of taking loan he gave 11 blank signed cheques as security and also signed a blank pronote and blank paper. The accused further states that the complainant has misused the cheques. The accused further states that Rakesh Batra has given his other cheques to other people namely, Abhimanyu Moitra and those cheques are also being misused. Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 6 of 19
14) The accused further states that Rakesh Batra told him that he delayed the payment by three months and penalty of Rs.3 lakhs would be imposed and then only the cheques and documents will be returned and therefore, he gave stop payment instructions. The accused further states that he also sent a letter to return the cheques and thereafter the legal notice to the same effect and Rakesh Batra immediately presented the cheque in bank after receipt of legal notice. The accused admitted that he received legal demand notice from the complainant.
15) The accused led the DE and Sh Gaurav Jha, branch manager, SBI, was examined as DW1. The DW1 brought the bank account statement of the accused for the period between 28.04.2015 till 06.08.2018 (Ex DW1/A, colly). The DW1 states in his cross examination that as per the record stop payment instruction were issued by the accused to the State Bank of Hyderabad qua the cheque in question on 30.04.2015 (Ex DW1/B).
16) Final arguments were heard on 18.12.2019.
17) It is argued by the Ld counsel for the complainant that in this case the sign on the cheque are admitted, its returning memo is placed on the record and the postal receipts are also placed, therefore, the presumption is in favour of the complainant as the burden is shifted on to the accused to prove that the cheque was not given for discharge of some liability or debt.
18) On the other hand the accused has argued that the complainant has not placed on record either the loan argument or the document which proves that the Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 7 of 19 accused took any loan from the complainant. The accused further argues that the complainant has not submitted his ITR for the relevant period which shows that the complaint of the complainant is a false one. The accused further argues that the complainant has not mentioned the source of his funds from where he acquired the amount to grant the loan to the accused.
19) Appreciation of Evidence: Before proceeding further, it would be better to have a look at the relevant legal provisions.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020)
8 of 19 exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 9 of 19 information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Further, Section 139 of the Negotiable Instruments Act provides that:
"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 Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020)
10 of 19 liability".
20) In the instance the requirements of sec 138 NI Act are fulfilled i.e. a duly signed cheque, its dishonour (as returning memo is there) and the legal demand notice, and therefore the presumption of sec 139, NI Act would be in favour of the complainant.
21) It is true that in a normal criminal case, the burden to prove the case prima facie is upon the prosecution or complainant but under the negotiable Instrument Act, if the requirements of duly signed cheque, its dishonor and subsequent notice have been proved, then it is for the accused to prove that the cheque was not issued for discharging any liability/debt. It is for the accused u/s 139 NI Act to prove that the cheque was not given for the discharge of any debt or other liability, and if no further evidences are led by the accused to discharge his burden then he would be convicted.
22) Before coming to intricacies of evidence law, it would be better to have a look at provisions of Indian Evidence Act 1872 (herein after IEA). It is Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 11 of 19 provided by Section 101 IEA:
101.Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fats which he asserts, must prove that those facts exist When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Further, it is provided by Section 102 IEA that
102. On whom burden of proof liesthe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
23)Section 101 Indian Evidence Act refers to the burden of proving the whole case and Section 102 refers to the different stages a particular Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 12 of 19 case. The burden under Section102 IEA constantly shifts depending on the evidence and other circumstances.
24) It was observed by Hon'ble Supreme Court of India in Anil Rishi vs. Gurbaksh Singh, Appeal (Civil) 2412 of 2006 [Dated 02/05/2006] wherein it has been held that "in terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto".
25) It has been remarked by the Hon'ble Supreme Court of India in the case of Bir Singh vs. Mukesh Kumar, Criminal Appeal Nos.230231 of 2019 SLP (CRL) Nos.933435 of 2018 [Dated 06/02/2019], "Section 139 (Negotiable Instruments Act 1881) Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 13 of 19 Introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 NIA is a presumption of law as distinguished from presumption of facts".
26)Section 138 NI Act lays that when the requirement of signed cheque and its dishonor have been proved by the complainant and payment is not made by the accused after serving of legal demand notice within 15 days, then it would be for the accused to prove that he does not owe any legal liability. If the accused is able to prove the non existence of legal liability or debt, then, the burden would again come out on the complainant to prove that such a liability existed.
27)In the present case, the complainant's initial burden has been discharged as the cheque has been dishonored, for which returning memo is there. Further, the signature on the cheque and receipt of the legal demand notice has been admitted by the accused in his notice under sec 251 CrPC, and in his statement under sec 313, CrPC. The burden under Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 14 of 19 Section 102, IEA has shifted to the accused to disprove the liability.
28) It was observed by the Hon'ble Supreme Court in the case of Sri. Sujit Biswas vs State Of Assam (2013) 12 SCC 406.
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020)
15 of 19 applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
29) In a criminal case the complainant/prosecution has to prove the guilt of the accused beyond reasonable doubt and conversely it follows that even when the burden has shifted on the accused, the accused need not to prove his defence beyond reasonable doubt but he is merely required to Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 16 of 19 create reasonable doubts on the version of the prosecution/complainant and if he is able to do it then benefit of doubt must be given to the accused as per the decision of the Hon'ble Supreme Court in Sri. Sujit Biswas vs State Of Assam (2013) 12 SCC 406.
30)The term reasonable doubt is very subjective, and a uniform standard cannot be laid down to define it. "Reasonable doubt" would depend upon the fact and circumstances of each case.
31) To get the benefit of doubt the accused has to create reasonable doubt on the version of the complainant/prosecution, and it is entirely up to the accused to create such reasonable doubts by exercising his right to cross examination or by adducing separate witnesses or by both.
32) In his notice under sec 251 CrPC, and in his statement under sec 313, the accused has not negated taking of the loan, it is stated by the accused in his notice u/s 251 CrPC that he took a loan of Rs five lakh from the complainant, and it is stated by the accused in his statement u/s 313 CrPC that he took five lakh from Rakesh Batra who is employer of the accused. Therefore, the accused cannot question at the stage of arguments the capacity of the complainant to grant the loan, because accused has admitted that loan was indeed granted by the complainant. Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 17 of 19
33) Now, once the accused has admitted that he took a loan then as per sec 102 of the Indian Evidence Act, it would be for the accused to prove that he repaid the loan amount. In his notice under sec 251 CrPC, and in his statement under sec 313, CrPC, the accused has claimed that he has returned a total amount of elevan lakh against the loan amount of five lakh taken by him, but the accused has not adduced any evidence to prove the repayment of the loan amount. The accused has not brought any witness in whose presence he returned the amount of loan, nor has he brought any kind of document like receipts or slip which can indicate that the he has indeed repaid the amount of the loan to the complainant.
34) Further, it is stated by the accused in his notice under section 251,CrPC that he took a loan of five lakh from the complainant, but in his statement under sec 313, CrPC it is stated by the accused that he took a loan of five lakh from Rakesh Batra, the employer of the accused. This is certainly an anomaly, as it is rare for a person to forget the name of the person from whom he took the loan and it raises serious questions on the defence of the accused.
35) It is true that the complainant could not remember the exact date of the loan, and moreover the complainant could not bring any other document Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 18 of 19 to show that loan was given but as the cheque was duly signed by the accused therefore under sec 139 it was for the accused to bring evidence to prove his defence as the presumption was in favour of the complainant. Moreover, the fact that the accused accepted the "fact of loan" again clarifies that the accused had to bring evidence to prove the repayment of the loan. In the instant case the accused was not able to prove his defence as he adduced no document and produced no witness to prove the repayment of the loan to the complainant.
36)In view of the aforesaid discussion, I hereby hold that the complainant has duly proved and substantiated his case against the accused and all the ingredients of sec 138 NI Act stand proved against the accused. Accordingly, accused Avinash Gupta is hereby convicted for the offence u/s 138 of NI Act.
Every Page of this judgment has been signed by me. This judgment contains 19 pages.
Copy of this judgment be given to the convict free of cost AVNEESH Digitally signed by AVNEESH KUMAR Announced in the open court on KUMAR Date: 2020.01.15 15:55:07 +0530 this day of 14th of January, 2020 (AVNEESH KUMAR) MM (NI Act)/DWARKA/NEW DELHI Vishal Lakhanpal v. Avinash Gupta CC No 4992553/2016 (Pronounced on 14.01.2020) 19 of 19