Delhi District Court
Pawan Kumar Jaju vs Mohd. Younis on 18 May, 2012
IN THE COURT OF SH. SANJAY JINDAL JSCCcumASCJ (NW) : DISTRICT COURTS : ROHINI : DELHI Unique ID No. : 02404R1310792005 CC No. 2201/10/05 Pawan Kumar Jaju Versus Mohd. Younis P.S. : Prashant Vihar JUDGMENT
a) Name of the complainant : Pawan Kumar Jaju S/o Sh. Mal Chand Jajoo R/o : 139, Vikassheel Apartment, Sector13, Rohini, Delhi110 085.
b) Name & Address of accused : Mohd. Younis
Shri Kamaluddin,
H. No. K268, HauzRani,
Malviya Nagar,
New Delhi110 017.
c) Offence complained of or proved : 138 NI Act.
d) Plea of the accused : Pleaded not guilty
e) Date of institution of the case : 12.05.2005
f) Date of reserving of Judgment : 18.05.2012
g) Final Judgment : Acquitted
h) Date of such Judgment : 18.05.2012
BRIEF REASONS FOR THE DECISION OF THE CASE : 1 This is a case/complaint U/s 138 of the Negotiable CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 1/11 Instruments Act which was assigned to this Court by the Hon'ble High Court vide Order No. 145192/F.3(4)/MM dated 02.01.2009. 2 The brief facts, as per the case of the complainant, are that the accused took a friendly loan of Rs.6,10,000 from the complainant as they were on friendly terms. It is further alleged that towards the discharge of abovesaid liability, the accused handed over a chaque No. 320062 dated 31.03.2005 for a sum of Rs.6,10,000/ to the complainant. When the cheque in question was presented for encashment on the due date, the same returned unpaid on account of "Insufficient Funds". It is further alleged that the legal/demand notice dated 19.04.2005 was sent to the accused and the Registered Post and UPC did not return back to the complainant and the accused was deemed to be served. It is further alleged that in spite of the said notice, the accused has not complied with the demand as made in the said legal notice. Hence, this complaint U/s 138 of the Negotiable Instruments Act(NI Act).
3 The complainant led presummoning evidence and the accused was summoned vide order dated 06.06.2005. CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 2/11 4 On appearance of the accused, notice U/s 251 Cr.P.C for the offence U/s 138 NI Act was served upon the accused to which he pleaded not guilty on 12.08.2008.
5 During complainant evidence, the complainant has examined himself as CW1 as sole witness. He has deposed as per the contents of the complaint and tendered the documents Ex.CW1/A to Ex.CW1/G. 6 After conclusion of complainant's evidence, the statement of accused U/s 313 r/w Section 281 Cr.P.C was recorded and all incriminating evidence was put to him to which he explained that he has not taken any money from the complainant neither as a friendly loan nor as a personal loan. He further stated that he had got financed a bus from M/s Goodwill India Pvt. Ltd. in the year 1997 and that he had taken loan of Rs. 4 lakhs returnable in 36 instalments and he had given five blank cheques at that time. The accused has further alleged that the complainant was a manager in M/s Goodwill India Pvt. Ltd who has misused one of the cheques. He has further alleged that he has already repaid the loan amount in the year 2000 and obtained CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 3/11 NOC and that out of the five cheques, three were encashed in ordinary course in EMI and since he had got the NOC, he did not insist for return of cheque. He opted to lead evidence in his defence and appeared himself in the witness box as DW1.
7 I have heard counsel for the parties and perused the record carefully. It is argued on behalf of the complainant that the complainant has duly proved on record all the relevant facts and documents and the accused has failed to put forward any defence. On the other hand, Ld. Counsel for the accused has argued that there was no liability against which the cheque in question could have been issued by the accused. It is submitted that the accused is liable to be acquitted.
8 I have carefully perused the material available on record in light of the submissions made before me.
9 In order to attract the liability of the accused U/s 138 of the NI Act, the complainant is required to prove :
a) that the accused issued the cheque No. 320062 dated CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 4/11 31.03.2005 for Rs. 6,10,000/ to the complainant for the discharge of legal debt/ liability;
b) that the complainant presented the said cheque to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier;
c) that the said cheque was dishonoured by the banker of the accused due to insufficiency of funds in the account of the accused;
d) that the complainant made the demand for the payment of said amount of cheque by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheque;
e) that the accused failed to make the payment of the amount of the cheque within 15 days of the valid legal notice of demand; and
f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the NI Act accrued to him.
CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 5/11 10 In order to prove his case, the complainant examined himself as CW1. He testified as per the contents of his complaint and relied upon the documents i.e., cheque Ex.CW1/A, Cheque return memos Ex.CW1/B, legal notice Ex.CW1/C(running into two pages marked as Ex.CW1/C1 & C2) and postal receipts Ex.CW1/D to Ex.CW1/G. CW1 has been cross examined on behalf of the accused. 11 DW1 Mohd. Younis is the accused himself. During his examination, he controverted the story of the complainant in toto. He has testified that he knows the complainant as he was working in M/s Goodwill Company. He got financed a bus bearing no. DL 1PA 1136 from M/s Goodwill India Pvt. Ltd. in the year 1997 and that he had taken loan of Rs. 4 lakhs returnable in 36 instalments for which he had given five duly signed blank cheques at that time as a security to the company and he paid the entire loan amount in the year 2000. he has further deposed that he again took loan against the abovesaid vehicle and repaid the entire loan in the year 2002 and got NOC from the said company which was later on merged with M/s MGF. He has further, inter alia, testified that after repayment of the entire loan in the year 2002, he again visited the office of M/s MGF Company regarding the CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 6/11 NOC of the above mentioned loan and demanded return of his blank cheques but the official of the MGF Company advised him to go to Goodwill Company for the same. He has alleged that the cheque in questioned is one of the abovesaid five cheques which has been misused by the complainant. The accused has been cross examined in detail on behalf of the complainant but nothing material could be extracted in favour of the complainant.
12 As far as ingredients (b), (c), (e) and (f) as mentioned in paragraph 9 are concerned, there is hardly any dispute raised on behalf of the accused. It is duly established that the cheques in question were presented before the bank and the same were subsequently dishonoured. It is also clear from the record that no payment has been made by the accused despite service of notice and the complaint has been filed within the prescribed period.
13 The accused has strongly disputed the existence of ingredients (a) & (d) which deal with existence of liability and validity of demand notice. It has been contended that neither the cheque was issued by the accused for discharge of liability nor any valid demand CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 7/11 notice has been served upon the accused by the complainant. There is rebuttable presumption in favour of the holder of the cheque that the cheque has been issued in discharge of liability unless contrary is proved. The case of the complainant is that the cheque was issued by the accused for discharge of the liabilities arising out of a friendly loan given by the complainant to the accused while the case of the accused is that the cheque was given to M/s Goodwill Company against finance of Bus and the concerned loan/ finance taken by the complainant from M/s Goodwill Company has already been repaid and that the complainant being an employee of the said company has misused the cheque in question.
14 If the contents of the complaint are perused it reveals that the complainant has not specified the nature of the transaction which might have resulted into existence of legal liability against the accused. It is simply mentioned by the complainant that the accused owed Rs.6,10,000/ to the complainant and in discharge thereof, he tendered the cheque in question in favour of the complainant. There is no corroborative averments either in the complaint or in the affidavit filed by the complainant to show the nature of the transaction between CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 8/11 the parties prior to issuance of the cheque. There is neither any receipt nor any statement of the account etc., to corroborate the factum of any payment to the accused by the complainant at any point of time. The complainant has taken no pain to adduce any such evidence despite categorical denial of the liability by the accused. There is no doubt there is a presumption in favour of the complainant by virtue of Section 139 of the NI Act but said presumption is rebuttable one and once the accused has categorically denied the liability and the contents of the complaint and the affidavit are found to be cryptic and unspecified, it seems that a serious blow has been given to the above discussed presumption. The quality of evidence required to be led by the accused is not of the level which is expected from the complainant to prove his case. It has been held by the Hon'ble Supreme Court in K. Prakashan vs. P.K. Surendran, (2008) I SCC 258 that the burden of proof lying on accused qua rebuttal of presumption U/s 139 and 118 NI Act is required to be discharged by preponderance of probabilities. Similarly in M/s Kumar Export Vs. M/s Sharma Carpets, AIR 2009 SC 1518 also it has been observed by the Hon'ble Supreme Court that for rebutting the presumption that the cheque was for discharge of debt/ liability, the proof of defence need not be beyond reasonable CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 9/11 doubt.
15 The defence raised by the accused in this regard seem to be probable and the facts extracted by the accused from the complainant during his cross examination as discussed above and the defence evidence are sufficient to show that reasonable doubt has been established on record qua story of the complainant. The doubts raised by the accused are sufficient to rebut the presumption operating in favour of the complainant regarding existence of liability against issuance of cheques.
16 It has been argued on behalf of the complainant that the accused has admitted his liability as during course of the case, he entered into a compromise with the complainant and agreed to pay a sum of Rs. 1,00,000/ but the settlement could not attained finality. After careful perusal of the record, the contention of the counsel for the complainant regarding compromise is found to be correct but it cannot be said that the accused has admitted his liability on merits of the case. So no importance can be given to the statement of the accused which was recorded for the sake of settlement and convenience of the parties.
CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 10/11 17 In view of above discussions, I am of the view that the complainant has failed to prove on record a case for the offence punishable U/s 138 NI Act beyond reasonable doubt. Hence, in the given facts and circumstances, accused Mohd. Younis is acquitted for the said offence U/s 138 NI Act. Accused is on bail in this case. His bail bond is cancelled. Surety is discharged. Original documents, if any be released to the rightful owner after cancellation of endorsement, if any thereon and against proper receipt.
The file be consigned to the Record Room after due compliance.
Announced in the open Court Today on this 18th Day of May, 2012.
(SANJAY JINDAL) JSCC/ASCJ (NW): ROHINI :DELHI CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 11/11 CC No. 2201/10 18.05.2012 Present: Complainant in person.
Accused on bail with counsel.
Arguments heard.
Put up for orders at 3:00 pm. (SANJAY JINDAL) JSCC/ASCJ (NW): ROHINI :DELHI 18.05.2012 3:00 pm Present: Complainant in person.
Accused on bail in person.
Vide separate order of the even date, the accused is acquitted. Accused is on bail in this case. His bail bond is cancelled. Surety is discharged. Original documents, if any be released to the rightful owner after cancellation of endorsement, if any thereon and against proper receipt.
The file be consigned to the Record Room after due compliance.
(SANJAY JINDAL) JSCC/ASCJ (NW): ROHINI :DELHI 18.05.2012 CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 12/11 CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 13/11 CC No. 2201/10/05 Pawan Kr. Jaju Vs. Mohd. Younis 14/11