Delhi District Court
Madras High Court. The Relevant Portion ... vs . on 14 November, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )04 DWARKA COURT, NEW DELHI
M/s. New Link Overseas Finance Ltd.
Vs.
Umesh Kumar
C.C. No. 611/14
U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 05.06.2009
b) Name of Complainant M/s. New Link Overseas Finance Ltd. Through its authorized representative Sh.
Badri Prasad
c) Name and address of the Umesh Kumar, S/o Sh. Ram
accused : Kumar, R/o H. No. 835, Village
and Post office Bhalashwa, Delhi.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 14.11.2014
h) Date of institution of case: 26.06.2009
i) Date of decision of case: 14.11.2014
CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 1 of 8 2 Brief facts and reasons for decision of the case:
1. It is alleged in the complaint that M/s New Link Overseas Finance Ltd. ("the complainant") provided a vehicle loan of Rs.
2,22,750/ (inclusive of interest) to Umesh Kumar ("the accused") in 2007. However, accused failed to comply the repayment schedule. In discharge of his liability, the accused issued the impugned cheque bearing no. 830218 dated 16.04.2009 for a sum of Rs. 1,37,300/. On presentation, this cheque was dishonored due to the reason "Insufficient Funds" on 20.04.2009. The complainant demanded the cheque amount via a legal demand notice dated 05.05.2009. When the accused failed to make the payment within the statutory period despite service of notice, the complainant filed the present case.
2. Badri Prasad was examined as sole complainant's witness. He filed his evidence by way of affidavit Ex. CW1/A. The relevant documents relied upon by the complainant includes, the impugned cheque Ex. CW1/3, the memo receipt and returning receipt Ex. CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 2 of 8 3 CW1/4 and CW1/5 respectively, Legal notice Ex. CW1/6 and postal documents are Ex. CW1/7 to CW1/9. The statement of account was filed during the cross examination as Ex. CW1/10.
3. The accused denied the entire case of the complainant during his statement u/s 313 CrPC and stated that he had availed a loan of Rs. 1,65,000/ only and have already repaid sum of Rs. 1,60,000/. The impugned cheque was issued blank signed for purpose of security at the time of loan agreement.
4. Accused examined himself in his defence u/s 315 CrPC and re narrated the story already told by him during his statement u/s 313 CrPC.
5. Arguments from Ld. Counsels appearing for the parties heard.
6. The loan amount has been disputed by the accused. He stated that loan advanced was Rs. 1,65,000/ only. CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 3 of 8 4
7. Per contra, complaint says that accused was advanced a loan of Rs. 2,22,750/ inclusive of interest. In contradiction to the complaint, the CW1 deposed during his cross examination that the loan amount was Rs. 1,70,000/. It has been clearly mentioned in the complaint that various loan documents were signed and executed by the accused at the time of loan however, despite the fact that loan amount has been disputed, not even a single loan document was produced. Thus, it is doubtful that what was the loan amount and at what rate of interest it was advanced to the accused.
8. To fasten the criminal liability u/s 138 Negotiable Instrument Act, there must be legally enforceable liability. In the present case, accused has alleged that he had availed a loan of Rs. 1,65,000/ only and repaid a sum of Rs. 1,60,000/. Thus, he was not liable to pay to the tune of Rs. 1,37,300/ to the complainant on the date of issuance of cheque.
CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 4 of 8 5
9. At this stage, it would be relevant to reproduced part of the cross examination of CW1: " I cannot say that how many installments have been paid by the accused. I cannot say that how much amount has already been paid by the accused. I cannot say how much is outstanding against the accused till date. I can tell the same after production of statement of account."
The above testimony of CW1 makes it very clear that he had no personal knowledge about the loan advanced to the accused and the payments made by him or the actual liability of the accused.
10. Though the statement of account Ex. CW1/10 was produced but it is a computer generated document and same is not annexed with the statement or certificate regarding the compliance of section 65 B of Indian Evidence Act. Further, there is nothing on record to show that his document was maintained in ordinary course of business. Since, the document Ex. CW1/10 is not proved as per law therefore same is not admissible. CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 5 of 8 6
11. The above discussion leads to the finding that liability of the accused to the tune of cheque amount is also not proved.
12. To further bolster my view, I would like to refer the judgment passed in case of M. Vairavan v. T.M Selvaraj Crl A No. 352 of 2009, Madras High Court. The relevant portion of the judgment is reproduced here as under :
"in the instant case, the appellant/complainant is only an individual, therefore, it cannot be said that non production of his account books would affect the case under section 138 of N.I. Act, though the same is relevant in a case relating to financial companies and other institutions having books of account. The decision of thiscourt in Murugan Financiers Vs, P.V. Perumal reported in 2005 Crl L.J. 269 ended CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 6 of 8 7 in acquittal on account of the non production of books of accounts, sought for by the accused therein has no relevancy in this case."
13. It is admitted that the loan was repayable in 30 EMIs of Rs. 7,425/ each. The AR for the complainant has admitted during his cross examination that the accused had handed over the impugned cheque as blank signed at the time of loan agreement. This admission by AR for the complainant corroborates the defence pleaded by the accused that impugned cheque was a security cheque because the EMI amount was Rs. 7,425/ and the complainant has no explanation to the effect that why an amount of Rs. 1,37,300/ was filled in a cheque which was handed over blank signed at the time of loan agreement. Thus, the defence of security pleaded accused is also probablized.
14. The above discussion leads to the conclusion that the amount of loan advanced to the accused and extent of his liability on date of CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 7 of 8 8 issuance of impugned cheque are doubtful. The possibility cannot be ruled out that it was issued blank signed for purpose of security at the time of loan agreement. The benefit of the doubt is given to the accused. He stands acquitted accordingly. Let the copy of this judgment be supplied to the accused. (Announced in the open court on 14.11.2014) This Judgment contains 8 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.611/14; M/S New Link Overseas Finance Ltd. Vs. Umesh Kumar Page 8 of 8