Delhi District Court
Indiabulls Finance Services Ltd vs Rajpal Singh on 7 March, 2012
IN THE COURT OF MS. SUSHEEL BALA DAGAR,
METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI
CC No. : 19253/10
Unique Case ID No. R0433422010
PS : Connaught Place
U/s 138 N I Act
Indiabulls Finance Services Ltd.
Having its office at:
F60, Second Floor,
Malhotra Building, Connaught Place
New Delhi 110 001 ........... Complainant
Versus
Rajpal Singh
A1/286, Madan Giri,
Ram Band, New Delhi
Also at :
Rajpal Singh
Designation : Prop
Department:
A1/286, Madan Giri, Ram Band
New Delhi .........Accused
Date of Institution : 29th March, 2010
Plea of accused : Pleaded not guilty
Date on which judgment was reserved : 21st February, 2012
Order : Acquitted
Date of decision : 07th March, 2012
CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 1/10
J U D G M E N T :
1. The case of the complainant is that the accused was provided a personal loan of Rs. 23,703/ by the complainant vide Loan Account no. S000174549. The accused had issued 3 cheques no. 780823, 780824 and 780825, dt. 07.01.2010 drawn on Punjab National Bank, Delhi in favour of complainant for an amount of Rs. 1251/each towards discharge of legally enforceable debt and/or liability arising out of the above mentioned loan agreement. The said cheques were returned unpaid with the remarks "Account Closed " vide return memos dt. 11.01.2010 each. The complainant issued a legal demand notice dt. 05.02.2010 to the accused and the same was duly served upon the accused. Accused did not pay the cheque amount within statutory period, hence, complainant has filed the present case.
2. The complainant led pre summoning evidence by way of affidavit and summons were issued against the accused vide order dt. 29.03.2010 for the offence under Section 138 Negotiable Instrument Act, 1881(hereinafter known as the 'Act'). On appearance of the accused notice under Section 251 Cr.P.C. dt 13.10.2011 was served upon the accused for committing offence under Section 138 of the Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case the authorized representative of the CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 2/10 complainant got himself examined as CW1 and filed an affidavit in evidence as Exhibit CW1/H1 wherein he reiterated the contents of the complaint before the Court. He proved Certificate of Incorporation as Exhibit CW1/A, Power of Attorney in his favour whereby he was authorized to file the complaint and depose in Court as Exhibit CW1/B1, Cheques in question as Exhibit CW1/C (colly), Cheque returning memos as Exhibit CW1/D (colly), Legal notice of demand as Exhibit CW1/E, Courier Receipt as Exhibit CW1/F, Complaint as Exhibit CW1/G and Statement of account of the accused as Mark X.
4. The statement of accused was recorded under section 313 CrPC in which all the incriminating evidence was put to the accused, Rajpal Singh. In reply to the said incriminating evidence the accused admitted that he had taken a loan of Rs. 23,700/ approximately in the year 2007 to be paid in 24 installments of Rs. 1251/ each. The mode of payment was by way of cash, collected by the agent hired by the complainant. He has already paid 23 installments to the complainant and is having the receipts of the same. For the 24th installment he asked the complainant to give him NOC and take the installment but none has approached him from the complainant for the remaining amount. The cheques in question were given to the complainant blank signed at the time of disbursement of loan for security purpose. Hence, he has no CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 3/10 liability to pay the same.
5. In his defence, accused examined himself as DW1 and reiterated the statement made by him u/s 313 Cr.P.C on oath. He stated that the complainant informed him the rate of interest is about 13.5% p.a. At the time of disbursing loan, the complainant took three blank security cheques. He produced letter received from the complainant at the time of disbursing the loan amount to him as Ex. CW1/D1. He had paid total 23 installments out of which six installments were paid from his bank account through ECS and rest 17 were collected by the recovery agents of complainant. Only one installment remained unpaid. He was not liable to pay 3 installments as filled by the complainant for the same date. He did not approach the complainant to fill the cheque in question, neither was he informed by the complainant about any outstanding dues against him. He was not informed before presenting the cheque in question. Defence evidence was closed and matter was fixed for final arguments.
6. I have heard Sh. Manoj Yadav, Ld. Counsel for the complainant and Sh. V. S. Chauhan Ld. Counsel for the accused and have gone through the record. Counsel for the complainant has relied on the case laws C.C.Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555; Ravi CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 4/10 Chopra v. State 2008 (2) JCC NI 169; Rangappa v. Shree Mohan 2010 (2) LRC 321 (SC); Hiten P. Dalal v. Bratindranath Banerjee AIR 2001 SC 3897. Ld. Counsel for the complainant has argued that the loan was to be repaid in 36 EMIs but the accused has admittedly made payment of only 23 EMIs. The complainant can fill the blank signed cheque as per section 20 of the Act.
7. Whereas counsel for the accused has relied on the case laws of M/s Sakthi Finance Ltd. v. K. Selvaraj 2011 (2) DCR 626(Mad.HC); Ramesh Bhimraj Panhale v. Kishor S. Chobe 2011(2) DCR 233 (Bom. HC); Jogindra R. Anand, partner of Anand Trading Co. v. Ganaram B. Rahod 2011(2) DCR 159 (Guj. HC); Shriniwas Ramdas Siwerwat v. Shantaram Pandurang Deotale 2011 (2) DCR 2007 (Bom. HC); Shahjahan T. M. v. P. J. Abraham Puthenpurayil House 2012(1)JCC NI 20. Ld. Counsel for the accused has argued that accused had taken a loan which was to be repaid in 24 EMIs. The complainant has not produced the loan agreement during trial even after the accused moved application u/s 91 CrPC for bringing the same on record. The rate of interest has nowhere been mentioned by the complainant. Further, it is argued that in para 5 of the complaint, complainant has stated that the three cheques were given for full and CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 5/10 final payment of the total outstanding loan amount whereas the AR of the complainant in cross examination has stated that the alleged three cheques were issued against partial liability. These three cheques in question were given by the accused as security cheques at the time of disbursement of the loan. The three cheques are of the same date and if they were the EMIs cheques, how can the same date be mentioned on the three cheques.
8. It is admitted case of both the parties that the cheques in question were signed by the accused. Service of Legal Demand Notice Ex. CW1/D is presumed as per Section 27 of the General Clauses Act, 1897. Moreover, accused has admitted the address written on Legal Demand Notice to be his correct address. It is further admitted case that accused had entered into an agreement for grant of loan with the complainant. Thus, the initial onus for raising presumption u/s 139 of the Act is discharged by the complainant. Now it is for the accused to rebut the presumption u/s. 118 & 139 of the Act by leading direct evidence or by showing preponderance of probabilities in his favour.
9. It is cardinal principal of law that "one who asserts must prove his case". In para 5 of the complaint, the complainant has averred that:
"...on receipt of loan recall notice the accused approached the former company in the above mentioned office of the complainant to settle the loan account by making full and CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 6/10 final payment of the total outstanding loan amount and in discharge of his legal liability and to settle the account issued the cheques..."
During cross examination CW1 admitted that complainant has not brought any loan recall notice/outstanding notice on record other than the legal demand notice. Moreover, CW1 has not placed on record any document to show that the accused went to the office of the complainant on 07.01.2010 i.e., the date mentioned on the cheques Ex.CW1/C (colly). Further, he stated that the case is regarding the partial liability of the accused but he did not remember whether partial liability is referred to any of the documents on record that is the complaint, legal demand notice, pre summoning, post summoning or not. The complainant has been making contradictory statements during the course of trial. It is well settled preposition of the Criminal Law that the complainant could not be allowed to reconstruct a story different from the one propounded or pleaded in the complaint. In the present case the complainant has been found doing exactly the same and hence on that count alone its case ought be rejected.
10. Moreover, in para 2 of the legal demand notice Ex. CW1/E it is stated that : " ... that you issued cheque bearing no. 780823, 780824 and 780825 each dated 07.01.2010 for an amount of Rs. 1251/ each. These cheques were drawn on Standard Chartered Bank in favour of my client..."
CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 7/10 Perusal of the cheque shows that they are not drawn on Standard Chartered Bank but on Pumjab National Bank. The details of the cheque and its amount is essential requisite of the notice as the purpose of the notice is to inform the drawer that a particular cheque has been bounced and he had to make payment of the same. Thus, mentioning of details is necessary where the drawer had issued more than one cheque. As in the present case the name of the bank has been wrongly mentioned, the accused can be held as misled from the discrepancies in the legal demand notice. Moreover, in the present case accused has stated that he has never received any legal demand notice. Hence, it is not clear whether correct information about the dishonour of cheques was ever sent to the accused or not.
11. Accused has raised the defence that the mode of the repayment of the loan by way of ECS and he has placed on record the loan disbursal letter from the complainant as Ex. CW1/D1. CW1 did not remember whether the mode of repayment was by way of ECS. The question arises whether three EMIs can be presented by the complainant in one month or not? Whether the cheques in question were security cheques or undated blank signed cheques as deposed by the accused? All these questions can only be answered if loan agreement in question is placed on record. But the same is not prooved CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 8/10 by the complainant for the reasons best know to it. It is only after the arguments that the complainant produced the loan agreement and never exhibited the same. Further, there is no document on record which can throw some light on these aspects. This becomes all the more relevant, when the sole complainant witness relied by the complainant does not know what was the mode of repayment of the monthly installment i.e. through ECS or cheque.
12. It is pertinent to mention that statement of account mark X nowhere shows that accused was liable to pay the cheques amount in question on the date mentioned. Moreover, the Statement of account furnished by the complainant is not certified as per the Banker's Book Evidence Act. It is only showing the due dates of payment of the loan in question and nowhere clarifies the outstanding dues on the date of issuance of the cheques ie. 07.01.2010. So, the possibility that the liability of accused on the date mentioned on the cheques Ex. CW1/C (colly) was not so, cannot be ruled out. No doubt, presence of loan agreement in question and statement of account of accused, are not the essential ingredients of Section 138 of the Act. But in a case where the accused has rebutted the presumption of liability against him, as per the evidence on record, then it becomes all the more necessary for the complainant to show on what basis it is claiming that accused is CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 9/10 liable to pay the cheques amount in question.
13. The accused is thus, able to raise preponderance of the probability that the cheques in question were security cheques or undated cheque which were not issued against the full and final settlement of the entire loan liability as alleged by the complainant. In view of discussions above made, presumptions under section 118 and 139 of the Act are rebutted by the accused on the basis of circumstances existing in this case and complainant is not able to prove its case beyond reasonable doubt. Hence, there is no question of Section 138 of the Act being attracted. Accused stands acquitted. Personal bond of the accused cancelled. Surety discharged. Documents, if any, be returned to the accused after cancellation of endorsements. File be consigned to record room after necessary compliance.
Announced in the open Court Susheel Bala Dagar
on this 07th day of March, 2012 Metropolitan Magistrate
Dwarka Courts, Delhi.
All pages signed.
CC No. : 19253/10 Indiabulls Financial Services Ltd. v. Rajpal Singh 10/10