Delhi District Court
Javed Khan vs Durgesh Yadav Cc No. 7247/2017 Page No. 1 ... on 3 December, 2021
IN THE COURT OF MR. MRIDUL GUPTA,
METROPOLITAN MAGISTRATE09, NI ACT, SOUTH
WEST, DWARKA, DELHI
In Re:
CNR No. DLSW020097822017
CC No. 7247/2017
Javed Khan
Proprietor M/s Raja Auto Works,
Shop No.1, Vikram Market,
Near Fun & Food,
Village Kapashera, Delhi ...........Complainant
Versus
Durgesh Yadav,
S/o Sh. Raj Ballabh Yadav,
R/o Village Madhopur,
Post Sakhawaniya,
PS Kashya, Distt. Kushi Nagar,
UP. .............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 24.04.2017
Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 1 of 21
(4) Date of conclusion of arguments: 24.11.2021
(5) Date of Final Order : 03.12.2021
(6) Final Order : Acquitted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: The complainant alleges that he has friendly relations with accused. It is alleged that accused wanted to open a coaching centre in JulyAugust 2014, and thus approached complainant for friendly loan of Rs. 4,50,000/. Complainant first advanced sum of Rs.20,000/ in cash to accused for opening current account and thereafter advanced sum of Rs.1,28,650/ vide cheque dated 26.08.2014. Thereafter, complainant advanced Rs.3,01,350/ in installments to the accused. Accused assured to repay the same within 2 years. It is alleged that in discharge of liability, accused Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 2 of 21 issued one cheque of Rs. 4,50,000/ i.e. cheque in question no. 460762 dated 05.01.2017 drawn on State Bank of India, Bijwasan, Main Road, New Delhi to complainant, in satisfaction of loan. The complainant thus presented the cheque in his account maintained at DCB Ltd., Kapashera, Delhi which was returned with the remarks "Funds Insufficient" vide bank return memos dated 12.01.2017 and 06.02.2017. Thereafter, complainant served a legal notice dated 22.02.2017 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In presummoning evidence, complainant examined himself on affidavit Ex. CW1/A. He reiterated the contents of complaint and placed on record, original cheque of Rs. 4,50,000/ i.e. cheque in question no. 460762 dated 05.01.2017 drawn on State Bank of India, Bijwasan, Main Road, New Delhi as Ex. CW1/1, cheque returning memos dated 12.01.2017 and 06.02.2017 as Ex. CW1/2 and Ex. CW 1/7 respectively, legal demand notice dated 22.02.2017 is Ex. CW1/3, information report regarding lost speed post receipt as Ex. CW 1/4, tracking report as Ex. CW1/5 and account statement is Ex. CW 1/6.
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4. Upon appreciation of presummoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused to which he pleaded not guilty and claimed trial. He denied taking any loan from complainant. He admitted his signatures on the cheque in question, however denied filling in the remaining details in the same. He denied receipt of legal notice. He stated that the complainant used to run a committee. Accused gave cheque in question as blank, signed, security cheque for the purpose of committee to complainant. He paid all his dues in the committee. However, the cheque was not returned to him by the complainant stating that same has been destroyed. The cheque in question had been misused by the complainant.
5. The accused made prayer to crossexamine the complainant witnesses. Complainant as CW1 and one Kameshwar as CW2 were duly cross examined by Ld. Counsel for accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated that stand taken by him in answer to notice under Section 251 Cr. P.C. He also stated that he was given a receipt from the complainant stating Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 4 of 21 that blank cheque was given as security.
6. In his statement u/s 313 Cr.P.C, accused stated that he did not want to lead any defence evidence. Thus, the matter was fixed for final arguments. However, thereafter on application u/s 315 Cr.P.C read with Section 311 Cr.P.C, accused examined himself as DW1. He was duly crossexamined by Ld. Counsel for complainant. Accused did not examine any other witness in his defence.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. The accused admitted his signatures on the cheque in question in answer to notice u/s 251 Cr.P.C. and his statement U/s 313 Cr.P.C. He argued that accused had admitted that he knew the complainant. He argued that the accused did not produce any receipt of the alleged committee. Nor could the accused name the members of the committee and no such member was produced as witness in the present case. It was argued that accused did not give any reply to the legal notice. It is averred that accused failed to raise the probable defence to disprove the case of complainant and to Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 5 of 21 rebut the presumption under Section 139 of the Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, Ld. Counsel for the accused reiterated the version of the accused in his statement U/s 313 Cr.P.C and in defence evidence that the accused had not taken any loan from complainant. It was argued that the blank signed cheque given to complainant for purpose of committee was misused by the complainant. He argued that the date or month of advancement of loan was not mentioned in the complaint, legal demand notice or evidence affidavit of complainant. The date of issuance of cheque was also not mentioned. He argued that there were several inconsistencies and contradictions in evidence of complainant and also between the evidence of complainant i.e. CW1 and Kameshwar i.e. CW 2. The complainant in his examination in chief stated that accused approached him for loan in JulyAugust 2014, whereas in crossexamination, it was stated that Rs.20,000/ was advanced as loan to the accused in 2011. While in examinationinchief, it was stated that this Rs.20,000/ was given to accused for opening current account, but in cross examination, complainant stated that he was not aware whether accused had opened current account. He argued that there were no friendly relations between accused and complainant. In cross examination, complainant stated that he never studied or worked Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 6 of 21 with accused and never even visited native place of accused. The accused used to repair his scooty from shop of complainant. In crossexamination, complainant also stated that accused resided in Delhi till 2017, however, no Delhi address of accused was furnished by the complainant in the memo of parties or otherwise. He argued that complainant admitted that he did not maintain any record regarding his income. As such, complainant stated that his income in 2014 was Rs.40,000/ to Rs.50,000/ per month and his household expenditure was Rs.10,000/ to Rs.12,000/. Complainant also had three children. Though, complainant stated that his children were not residing with him in 2014, however, the same was contradicted by CW2 Kameshwar who stated that children of complainant were residing with him in 2014. Complainant also stated that his two nephews were working with him in 2014 but he did not use to pay him regarding their work. Same was again contradicted by CW2 who stated that in 2014, 45 workers were working with complainant. He argued that neither CW1 nor CW2 remembered the date, month or year when the remaining amount of loan was given in cash to accused. He also argued that CW2 in his evidence affidavit stated that complainant had informed him that he had advanced total sum of Rs.4,50,500/ to the accused and accused had issued cheque in favour of complainant. Thus, CW2 was not a witness to the present transaction. He argued that complainant could not even tell as to who filled the Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 7 of 21 contents of the cheque in question. As regards this, he referred to document Mark A which was later Ex. DW1/A which was a document whereby complainant acknowledged receipt of cheque of question as blank cheque on 25.08.2014. The complainant admitted his signatures on the same in his crossexamination. However, complainant also stated that cheque in question was given in 2017, which was a major contradiction. Moreover, complainant stated that no one was present when cheque in question was given to him, however, CW2 stated that he was present at that time. Regarding CW2 as well, it was argued that he did not have any friendly relations with accused as stated. In his crossexamination, he also admitted that he was not working or studying with accused. He did not even know the exact address of accused. It was argued that the amount of Rs.1,28,650/ received in account of accused from complainant was the committee amount and not any loan. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
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10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 9 of 21 and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument,when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"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 liability".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 10 of 21 Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question, in answer to notice u/s 251 Cr. P.C and in his statement u/s 313 Cr.P.C. He did not deny his signature on the cheque in crossexamination of complainant or in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
14. Thus as per the scheme of the Act, on proof of the foundational facts, a presumption arises as to the cheque having been issued in discharge of a legal liability, and the burden of Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 11 of 21 proof lies upon the accused to rebut the said presumption. This clearly is an instance of the rule of 'reverse onus' in action, where it is incumbent on the accused to lead what can be called 'negative evidence'. Evidence of a character not to prove a fact affirmatively, but to lead evidence to show non existence of liability. Keeping in view, that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused, and also keeping in mind that negative evidence is not easy to be led by its very nature. It is now fairly well settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non existence of liability so probable that a reasonable person ought under the circumstances of the case, act on the supposition that it does not exist. Simply put, the accused has to make out a fairly plausible hypothesis. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
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15. Firstly, it is important to examine the case of the complainant. In his examinationinchief (by way of affidavit), the complainant, i.e. CW1, did not disclose the date or month or even year of advancement of the loan in question. It was only mentioned that accused approached complainant for loan in July August 2014. Same was also the case with the complaint and the legal demand notice. Even in his crossexamination when questioned about the same, he stated that he did not remember the date, month or year when the amount in cash was given. Even there was no statement as to how there were friendly relations between the parties. The accused has denied any such friendly relations. Even in crossexamination of complainant, he admitted that he never studied or worked with accused or visited the native place of accused. Though, accused was stated to be residing in Delhi till 2017, however, no Delhi address of accused was placed on record by complainant. Even the legal demand notice Ex. CW 1/3 was sent to address of accused in Kushi Nagar, UP. Though, the amount of Rs.20,000/ was alleged to have been given for opening of current account by accused, however, complainant was not aware whether accused opened any current account in any bank.
16. Furthermore, even date of handing over of cheque to complainant by accused was not mentioned in the evidence Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 13 of 21 affidavit, complaint or legal demand notice. Even in cross examination, complainant stated that he did not remember the date and month when the cheque in question was handed over, however, the same was in 2017. The same derives higher significance as accused has specifically denied the issuance of cheque in question in 2017. Rather, accused produced written acknowledgment of receipt of cheque in question as blank cheque i.e. Mark A later Ex. DW 1/A, on which complainant admitted his signatures. As per said acknowledgement, the blank cheque was received on 25.08.2014 by complainant. However, no explanation whatsoever was given by complainant regarding the said document which is clearly contradictory to his version. Complainant also could not tell as to who filled the contents of the cheque in question. Complainant also admitted that there was no written document executed at time of loan. The above factors cast doubt on the case of complainant regarding advancement of loan and issuance of cheque in question in 2017 in discharge of any such loan. In Vijay v. Laxman and Anr. (2013) 3 SCC 86, the Hon'ble Supreme Court observed that:
"the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance."
17. One Kameshwar also testified as CW2 in the present case.
Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 14 of 21 As per his evidence affidavit, he was common friend of accused and complainant. Said witness was sought to be produced as witness of the loan transaction. However, even, in his examinationinchief, CW2 stated that most of the time, he was present when complainant advanced money to accused. He also stated that complainant informed him that he had advanced total sum of Rs.4,50,500/ to accused in installments and accused had issued cheque of Rs.4,50,000/ in favour of complainant.
18. However, the testimony of CW2 is not reliable due to following reasons. Firstly, CW2 stated that complainant informed him regarding advancement of total loan amount to accused. The same renders evidence of CW2 hearsay at least in part as he was not present during advancement of all installments. Furthermore, secondly, CW2 also did not mention any date, month or year of advancement of loan to accused by complainant in his evidence. Thirdly, though in examinationin chief, CW2 stated that complainant had informed him about issuance of cheque in question by accused, however, in cross examination he stated that cheque was given in his presence. The same is also contradicted by testimony of CW1 who stated that no person was present when cheque was handed over to him. The same reflects feeble attempt by CW2 to improve upon his testimony and casts grave suspicion on his credibility.
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19. Fourthly, CW2 upon stating that he could identify the signature of complainant was also shown document Mark A and he affirmed that the same bore signatures of complainant. However, here also no explanation was offered as to the document as per which cheque in question was given as blank cheque on 25.08.2014, which is clearly contradictory to the case of complainant and even CW2 who both stated that cheque was given in 2017.
20. Upon being questioned as to is financial capacity, complainant in his crossexamination stated that accused used to repair his scooty from his shop. He also admitted that he used to purchase spare parts from the dealer. Thus, as per testimony of complainant, he was running a motor repair shop. However, as per his testimony, he did not have any record to show the proof of his income. Even if his version is considered that he had income of Rs.40,000/ to Rs.50,000/ per month, he also had expenditure of Rs.10,000/ to Rs.12,000/. Moreover, he also had three children to raise and support, who as per his close friend CW2 were residing with him in 2014. Also as per CW2, the complainant was employing 45 workers with him. He also stated that he did not take loan from any person to give money to accused. Thus, in theses circumstances, the version of complainant regarding advancement of loan of Rs.4,50,000/ to accused is implausible. Complainant failed to show sufficient Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 16 of 21 financial capacity to advance loan of said amount to accused.
21. In Basalingappa vs Mudibasappa, Crmnl. Appeal No.636 of 2019, DOD 09.04.2019, the Hon'ble Supreme Court while dealing with a similar case where financial capacity of complainant to advance loan was questioned, observed as under:
"25.....Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only."
The Apex Court further held:
"28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence......"
"29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 17 of 21 defence....."
22. Also in John K. Abraham v. Simon C. Abraham, (2014) 2 SCC 236, the Apex Court held that:
"It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
It was held by Hon'ble Supreme Court in K. Prakashan v. P.K Surenderan; (2008) 1 SCC 258, and reiterated by Hon'ble High Court in Kulvinder Singh v. Kafil Ahmed 2014 (2) JCC (NI) 100, that if a huge amount of money is advanced as a loan then the person who has purportedly advanced the loan must also show the solvency to the extent of the loan either through the bank account or through other means.
23. It is also the defence of the accused as brought out from his testimony as DW1 that he had not taken any loan from complainant. The complainant used to run a committee in which accused was member. The committee was of Rs.1,50,000/ and accused gave 10 monthly installments in the committee. He gave cheque in question as blank signed security cheque for committee to complainant. Complainant also gave him written receipt Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 18 of 21 regarding the blank signed cheque i.e. Mark A/ Ex. DW 1/A. He paid all the dues of committee. When he asked for return of his cheque, complainant told him that same has been destroyed. Thus complainant had misused the cheque in question.
24. However, this version regarding committee, taken by accused is not supported by any evidence on record. Accused in his crossexamination admitted that he did not have any receipt regarding amount paid in committee and entire amount was paid in cash. He did not know the full or proper names of the committee members nor did he produce any such committee members as witness. Moreover, the document Mark X/ Ex. DW 1/A whereby complainant acknowledged receipt of cheque in question as blank cheque on 25.08.2014, though cast doubt on the case of complainant, does not support the case of accused as regards committee, since there is no mention of any committee on the said document. Hence, the defence version regarding committee is not tenable.
25. In light of above facts and circumstances, though accused has not been able to establish his defence version, it is revealed that the case of the complainant is inherently very weak. Complainant did not disclose the date and month and year of complete loan and any installment thereof in the complaint, evidence affidavit or legal notice. The complainant could also not Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 19 of 21 show such friendly relations with accused to justify granting of loan amount in mostly in cash and without execution of any document whatsoever. Also, he has not been able to sufficiently prove in his evidence, his financial capacity for advancing a loan of such a huge amount of Rs. 4,50,000/ to the accused. The complainant did not have any record of his income. The testimony of CW2 is also bereft of merit as discussed above and same has various material contradictions visavis the testimony of complainant, hence, the same is not reliable. Furthermore, neither complainant witness could explain the admitted document Mark A/ Ex. DW1/A as per which cheque in question was received as blank cheque by complainant on 25.08.2014, which is clearly contradictory to case of complainant that cheque was issued in 2017 towards repayment of alleged loan.
26. In order to rebut the presumption of Section 139 of the Act accused is not required to bring direct evidence but should adduce sufficient cogent evidence or can rely upon the circumstances which shows the probability of non existence of debt or liability. Accused has to prove his defence on the scale of preponderance of possibilities as held in Kumar Exports v. Sharma Carpets (supra). In present matter, from the case of the complainant itself, accused has been able to raise a reasonable probable defence and has been able to rebut the presumptions under sections 118 and 139 of the Act and the reverse onus cast Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 20 of 21 upon him has been discharged.
27. Since the accused has rebutted the statutory presumptions, the onus again shifts back upon the complainant. Now the presumptions under Sections 118 and 139 of the Act will not again come for the rescue of the complainant and case of complainant has to stands on his own legs. In the instant case, complainant has failed to discharge the burden of proof and could not prove the case beyond reasonable doubt.
28. Accordingly, the accused Durgesh Yadav S/o Sh. Raj Ballabh Yadav is acquitted of the offence under section 138 of the Act.
ANNOUNCED IN THE OPEN COURT TODAY i.e. 3rd DECEMBER 2021 Digitally signed by MRIDUL MRIDUL GUPTA GUPTA Date: 2021.12.03 01:25:45 +0530 (MRIDUL GUPTA) METROPOLITAN MAGISTRATE09, NI ACT, DWARKA DISTRICT COURTS/ DELHI Javed Khan vs Durgesh Yadav CC No. 7247/2017 Page no. 21 of 21