Delhi District Court
Page No. 1 To 10 M/S Monovik Leasing Ltd. vs . Sanjay Bahri on 24 June, 2013
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : PP411/03
b. Date of the commission of the offence : 25/05/2003
c. Name of the complainant M/s Monovik Leasing Limited
d. Name of accused person and his parentage: Sanjay Bahri,
and residence Director of M/s Child
Junction Wears Pvt. Ltd.
At 73, Vijay Block, Laxmi
Nagar, Main Road, Vikas
Marg, Delhi92.
e. Offence complained of : Dishonoring of cheques
for account closed.
f. Plea of the accused and his examination (if any): Not guilty
because no loan taken from
the complainant and cheques
in question were lost / stolen.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 06.06.2013.
Page No. 1 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri
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i. Order pronounced on : 24.06.2013
Brief reasons for decision:
1.As per version of complaint, complainant is a financial business firm and it had granted accused loan of Rs. 8 lacs in month of March 1999 on the representation of accused as he was in dire need of the same. Accused person had allegedly taken aforesaid loan for 4 years and issued 3 post dated cheques bearing number 146019 dt. 08.03.2008 for an amount of Rs. 5,00,000/ Ex. CW1/1, 137437 dt. 08.04.2003 Ex. CW1/2 and 137436 dt. 08.04.2003 for an amount of Rs. 1,50,000/ Ex. CW1/3 (hereinafter referred to cheques in question) in favour of complainant. It is also case of complainant that cheques in question had returned unpaid vide cheques returning memos Ex. CW1/4 dt. 10.04.2003 CW1/5 dt. 05.05.2003 and CW1/6 dt. 05.05.2003 with remark "Account Closed. It is further case of complainant that accused did not pay cheques amount within stipulated time despite service of legal demand notice Ex. CW1/8 dt. 09.05.2003. Hence, aggrieved from the aforesaid conduct of accused, complainant filed the present complaint case u/s 138 of NI Act on 06.06.2003.
2. Notice of accusation u/s 251 Cr.P.C was served on accused on 17.08.2007 to which he pleaded not guilty and claimed trial. CW1, Vipin Kumar (AR for complainant) examined and cross examined on 18.09.2008 & 01.09.2011. CW2, Ishwar Shah Saxena was examined and cross examined on Page No. 2 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 3 26.03.2012. Statement of accused u/s 313 Cr.P.C was recorded on 24.04.2012. Ct. Sumit (DW1) from PS Shakarpur and accused him self u/s 315 Cr.P.C examined and cross examined as defence witnesses. Both counsels for parties made oral final argument in details on 06.06.2013. Both counsel had also filed written argument on record.
3. I have given thoughtful consideration to respective submissions of both counsels and made careful perusal of entire record of this case.
4. At very outset, it may be pertinent here to take notice of presumption u/s 118 read with 139 of NI Act qua genuineness of cheque and consideration thereto in favour of complainant. Accused has to rebut initial legal presumption u/s 118 and 139 of NI Act by leading evidence with standard of balance of probability and same can be even rebutted by exposing inherent factual contradiction or legal infirmities in the story of complainant. It is also noticeable that once accused manages to probablies his defence by creating probable doubt over the enforceability of consideration in question or its existence, it is up to the complainant to prove his case beyond all reasonable doubts. It is further noticeable that complainant can not be allowed to prove his case by taking benefit of any lacuna in the defence of accused because his case has to stands judicial scrutiny on its own legs. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pharelal, (1993) 3 SCC 35 (Para.12) it has been held as herein below: Page No. 3 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 4 "Upon consideration of various judgment as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon Page No. 4 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 5 the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial or the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances, of the case, act upon the plea that it did not exist."
5. Adverting to the facts of this case accused admitted cheques in question belonging to his account number. However, he denied even signing on the same. Accused pleaded that cheques in question had been lost or stolen from his shop and he came to know regarding cheques in question being in possession of complainant when he received legal demand notice issued by the complainant. Accused had admittedly sent reply to legal demand notice of complainant. Accused claimed that he did not know complainant company prior to appearing before the court in this case. Accused categorically denied any transaction with complainant company. Accused had lodged a complaint Ex. Page No. 5 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 6 DW1/A with PS Shakarpur on 27.09.2001.
6. Ld. Counsel for accused contended that CW1 Vipin Kumar is not specifically authorized person on behalf of complainant company to pursue present complaint case. CW1 Vipin Kumar admitted during his cross examination that document CW1/A is not specific authorization for present case and no litigation between complainant and accused was pending on between 23.11.1998 to 17.11.1999 as document Ex. CW1/A and marked B are dated. Accordingly, Ld. Counsel for accused questioned the legal competence of CW1 Vipin Kumar as witness / Authorized representative of complainant company. (Vide Dale & Carrington Invt. (P) Ltd. and Anr. V. P. K. Prathapan and Ors. MANU/SC/478/2004: (2005)1SCC212 ). The court is also aware of basic rule of interpretation as to criminal law has to be construed strictly and life and liberty of a person should not be deprived except process established by the law.
7. Complainant did not file any document showing advancement of loan of Rs. 8 lacs to the accused despite being financial company. Complainant company did not show any document revealing source and timing of huge loan in question. A registered company like complainant can not be expected to advance huge loan in question to any person in such unaccounted fashion. CW1 himself admitted that he had not filed any document to show that complainant company was having resource worth to pay loan of Rs. 8 lacs on the day of alleged transaction in question. In this circumstances, the financial capacity of complainant for advancing loan in question could not be proved. In a case Page No. 6 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 7 reported as 2004 [ 2 ] JCC [NI ] 127, Hon'ble Punjab and Haryana High Court had observed that presumption had already been rebutted by accused in their reply to notice of dishonoure of cheque and therefore, it was incumbent upon the complainant to produce documentary evidence to establish that cheques were issued in discharge of a debt and liability. Moreover, CW1 failed to tell exact date of transaction in question except bald statement as to loan was given in March 1999. Here, Ld. Counsel for accused sought reliance upon a case reported as 2007 (4) RCR (Cr) 204 AP and contended that this is enough to disprove alleged fact of giving loan.
8. Complainant did not file original income tax return showing transaction in question took place in the month of March 1999 with accused. Ld. Counsel for accused contended that photocopy document marked X can not be relied upon as same is not admissible peace of evidence. On the other hand, counsel for complainant contended that complainant had filed photocopies of ITR and assessment order passed by income tax department on scrutiny of accounts of complainant and name of accused has been shown with amount of loan of Rs. 8 lacs. It is noticeable that complainant did not produce any income tax officials proving alleged assessment order qua complainant and accused. It is further noticeable that complainant did not mention transaction in question in its ITR and it sought reliance upon the photocopy of assessment order of income tax department. Complainant did not file any proof as to it had deposited due income tax pertaining to transaction in question. Accordingly, self serving Page No. 7 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 8 photocopy of assessment order can not be substantial proof of transaction in question, when transaction in question appears to be doubtful abinitio.
9. It is noticeable that CW1 had admitted that complainant company was maintaining book of account. However, complainant company failed to produce account books and ledgers to substantiate its claim to advancement of loan in question. Here, Ld. Counsel for accused seeks reliance upon a case reported as 2006 (3) RCR (Cr) 504 SC & 2009 (1) RCR (Cr) 478 SC. It is also noticeable that cash transaction above Rs. 20,000/ is not permitted under Income Tax Act and rules. Here, complainant finance company had claimed that it had advanced loan of Rs. 8 lacs in cash. Hence, huge cash transaction in question in unauthorized mode can not be appreciated particularly in case of registered finance company like complainant.
10. Lastly, Ld. Counsel for accused contended that as per para 4 & 5 of affidavit of complainant accused was director of M/s Child Junction Wears Pvt. Ltd. and being director accused Sanjay Bahri approached representative of complainant company for temporary financial assistance of Rs. 8 lacs in March 1999. Present complaint case has been filed against Sanjay Bahri Director of M/s Child Junction Wears Pvt. Ltd. and company or firm of Sanjay Bahri had not been arrayed as accused. Ld. Counsel for accused sought reliance upon judgment of Supreme Court of India titled as Anita Hada Vs. Anil Hada in Crl. Appeal number 838 of 2008, reported as AIR 2012 Supreme Court 2795. In aforesaid case their lordship observed that impleading company as one of Page No. 8 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 9 accused u/s 141 of NI Act is mandatory requirement for prosecuting any director of company or any authorized signatory of cheque. It was further observed that criminal liability on account of dishonouring of cheque primarily falls on drawer company and extends to its officer only when condition u/s 141 stands satisfied. On the other hand, Ld. Counsel for complainant contended that only accused Sanjay Bahri had taken loan in question in his personal capacity, hence, no need to file case against company namely M/s Child Junction Wears Pvt. Ltd.
11. Ld. Counsel for complainant submits that accused is not sure whether cheques in question had been lost or stolen. Accordingly, counsel for complainant contended that aforesaid plea of accused is after thought. Counsel for complainant also contended that alleged complaint with police station Ex. DW1/A had been made by accused in individual capacity and not as director of M/s Child Junction Wears Pvt. Ltd.. On the other hand, counsel for accused contended that accused has lodged complaint Ex. DW1/A with PS Shakarpur in year 2001 regarding theft of bag containing some cheques including cheques in question. Ld. Counsel for accused also contended that accused had sent intimation to his bank and closed his bank account for preventing misuse of any cheque.
12. It is settled position of criminal jurisprudence that once accused managed to create probable doubt over the veracity of claim of complainant, it would be unalienable duty of complainant to prove his case as the matter of fact beyond all shades of reasonable doubts. Presumption u/s 118 and 139 of NI Act Page No. 9 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri 10 would arise in favour of complainant only after proving of due issuance of cheque in question. Here, accused disputed even signing of cheques in question and claimed that same had been lost / stolen. It is also noticeable that complainant can not be allowed to prove his case by taking benefit of any lacuna in the defence of accused as the story of complainant has to stand on its own legs.
13. In view of above discussions, court is of considered opinion that accused has created reasonable doubt over the veracity of story of complainant and complainant failed to prove his case beyond all reasonable doubts thereafter. The court is also mindful of basic tenant of criminal jurisprudence as to benefit of doubt must go in favour of accused and in case of two possible version, the version favouring the innocence of accused should be opted by the court.
14. In upshot of aforesaid discussion, I have no hesitation in ordering acquittal of accused persons for offence u/s 138 of NI Act in this case.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 24th Day of June, 2013 MM, NI Act, (East)
KKD Courts, Delhi.
Page No. 10 To 10 M/s Monovik Leasing Ltd. Vs. Sanjay Bahri