Delhi District Court
3.Title Kavinder Arya vs . Neeraj Jain on 6 May, 2019
THE COURT OF MS. RICHA MANCHANDA
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1. CC No. 351/13, PS Karawal Nagar
2.Unique Case no. 46697/15
3.Title Kavinder Arya Vs. Neeraj Jain
3(A).Name of complainant Kavinder Arya, S/o Shripal Arya, R/o : A21,
Main Karawal Nagar, Thana Road, Kamal
Vihar, Delhi110094.
3(B).Name of accused Neeraj Jain, R/o : C3/16, Yamuna Vihar,
Delhi110053.
4.Date of institution of case 27.04.2013
5.Date of Reserving judgment 02.05.2019
6.Date of pronouncement 06.05.2019
7.Date of commission of offence After 15th day of service of legal demand
notice.
8.Offence complained of U/s 138 NI Act
9.Offence charged with U/s 138 NI Act
10.Plea of the accused Pleaded not guilty
11.Final order Convicted U/s 138 NI Act
12. Date of receiving of judicial 23.12.2017
file in this court
JUDGMENT
1. Briefly stated, the case of the complainant is that complainant Kavinder Arya had friendly relations with the accused Neeraj Jain and accused approached him for a friendly loan of Rs. 12,00,000/ in the month of January, 2013 and promised to pay back by the mid of February, 2013. The complainant gave the said loan to him. Thereafter, accused issued two postdated cheques Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 bearing no. 259248 dated 15.02.2013 and for an amount of Rs. 7,00,000/ and another cheque bearing no. 259250 dated 15.02.2013 for an amount of Rs. 5,00,000/ both drawn on Canara Bank. The accused also handed over the original sale deed of the property bearing no. C3/16, Yamuna Vihar, Delhi to show his bonafide. When the complainant presented the aforesaid cheques for payment to his banker, then the cheque bearing no. 259248 was returned due to "insufficient funds" and cheque bearing no. 259250 for the stoppage of the same. When the complainant informed the accused regarding dishonour of the said cheques, he evaded the complainant on one pretext or the other. Thereafter, complainant issued legal notice dated 01.04.2013 through her lawyer through speed post and courier to the accused and the same was received by the accused. Despite receiving the same, it was neither replied nor payment was made by the accused person. Hence the present complaint u/s 138 NI Act was made.
2. On the basis of presummoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act by Ld. Predecessor and the accused put in his appearance. Vide order dated 19.11.2016, a notice U/s 251 Cr.P.C. for the offence under Section 138 N.I. Act was framed against the accused Neeraj Jain to which he pleaded not guilty and claimed trial.
3. The Complainant in order to prove his case examined three witnesses CW1, the complainant himself. CW2, Subey Singh, Postal Assistant and CW3 Public Relations Inspector Shri Ajeet Singh. Both CW2 and CW3 were called to prove the speed post receipt, however, both the witnesses deposed that the record had been weeded out.
4. CW1 tendered in evidence his affidavit and relied upon the following documents : Ex. CW1/1 and Ex. CW1/2 i.e. Cheques bearing no. 259248 and 259250, the Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 cheques in question. Ex. CW1/3 is the cheque return memo dated 19.03.2013 for cheque no. 259248 and Ex. CW1/4 is the cheque return memo dated 19.03.2013 for cheque no. 259250. Ex. CW1/5 is the legal notice dated 01.04.2013. Ex. CW1/6 (collectively) is the courier delivery report and speed post delivery report. Ex. CW1/7 is the original stamped copy of receiving made by the accused over the courier. Ex. CW1/8 is the speed post envelope, Ex. CW1/9 is the speed post receipt, Ex. CW1/10 is the courier receipt. Mark A is the photocopy of the Sale Deed allegedly given by the complainant to the accused.
5. CW1 was cross examined by Ld. Defence Counsel. He stated that he does not have any license of money lending business. He states that he takes money from creditors @ 1% and 0.5% per month and he lends it further to his courier @ 3% per month. He stated that no loan agreement was executed between him and the persons from whom he had taken loan and neither there is any loan agreement with the persons to whom he has given the loan. He also stated that he gave loan to Devender Batra in the year 2013 for a period of 1 to 1.25 months. He stated that he did not take any cheque or any property document from him at the time of providing loan to Devender Batra.
6. The witness was also shown Ex. CW1/DX2 which is the copy of two cheques and some handwriting was written in original. The complainant admitted that the original content of handwriting is of him, however, he signed only on the photocopy of one cheque no. 501552 which was given to him by Devender Batra stating that he was giving that cheque on behalf of the accused for the amount which accused had taken from him. However, the second cheque was given by Devender Batra to him on the next date. He admitted that cheques bearing no. 501553 and two other cheques bearing no. 501566 and 501567 have been encashed by him. He denied the suggestion that the repayment of Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 the abovesaid loan of Devender Batra has been repaid by him. He also denied the suggestion that accused gave him cash of Rs. 2,70,000/. He admitted that the cheques in question were given to him in January, 2013 and the same were without any name and he filled the name therein.
7. CW2 is Subey Singh, Postal Assistant, Shahdara post office, Delhi. He has proved the document Ex. CW2/1 i.e. the letter issued by the Sub Post Master.
8. CW3 is Shri Ajeet Singh, Public Relation Inspector, Seelampur post office. He proved the letter issued by Sub Post Master Ex. CW3/1 and certified copy of register for receiving of articles Ex. CW3/2. Thereafter, CE was closed.
9. Statement of accused was recorded wherein he has denied taking any loan from the complainant. He stated that Devender Kumar Batra took loan from the complainant and accused stood as guarantor of the said loan, gave the abovesaid cheques title deed of his house standing in the name of his wife as security. He further stated that Devender Kumar Batra has also paid the entire loan amount but the complainant did not return the cheques and has misused the same by filing present false case. He further stated that he did not receive any legal notice and number of delivery is false and fabricated.
10. Accused in his defence examined two witnesses. DW1 Devender Batra and DW2 Satya Singh Negi.
11. DW1 stated in his examination in chief that he knows the complainant through accused and accused is his friend. He further stated that he did not had any financial dealing with the complainant. He also relied upon Ex. DW1/DX1, which is an affidavit executed on nonjudicial stamp paper executed by Devender Batra, DW1 in favour of Kavinder Arya i.e. the complainant. He further stated that accused had to pay money to the complainant, he did not had the money and accused Neeraj asked him to pay Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 the money, therefore, he gave cheques as mentioned in Ex. DW1/DX1 to accused, who in turn had given them to the complainant to repay the loan. He further stated that the said cheques were encashed by the complainant. He further stated that the accused filed a false complaint against him under section 138 NI Act. He further stated that he never took any loan from the complainant and the abvoesaid cheques were given by him to the accused who had given them to the complainant to repay the loan. He stated that he gave cash amount of Rs. 2,70,000/ to the accused who had paid the said amount to the complainant.
12. In his crossexamination, he stated that no receipt of the amount was taken by him from the complainant or the accused. He stated that he does not know whether there are dues against the accused. He stated that he does not know the amount of the cheque on the basis of which the complainant filed case against him under section 138 NI Act. He also brought the ITRs which are Ex. DW1/X2, Ex. DW1/X3, Ex. DW1/X4 and Ex. DW1/X5 for the assessment year from 2012 to 2015. He stated that he did not take any legal steps to recover money from the accused which were transferred through cheque from his account to the account of the complainant.
13. DW2 is Satya Singh Negi, Notice server, Income Tax Office at F block, Vikas Bhawan, Delhi. He brought the attested copies of ITRs pertaining to Kavinder Arya, bearing PAN no. AGDPA2500L. The letter issued by Income Tax Officer dated 25.07.2017 is Ex. DW2/1 bearing his signature at point A. The ITRs of the abovementioned person for the assessment years 201112 to 201415 are Ex. DW2/2, Ex. DW2/3, Ex. DW2/4 and Ex. DW2/5.
14. I have heard parties and carefully gone through the record and the relevant provisions of law.
Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13
15. Section 138 Negotiable Instrument Act provides as under : Dishonour of cheque for insufficiency, etc., of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, or any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [ a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this Section shall apply unless
i) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
ii) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
iii) the drawer of such cheque fails to make payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
The perusal of the Section shows that complainant has to prove following things in order to prove his case :
i) the cheque was drawn by the accused for payment of due amount to the complainant;
ii) the amount was due on the part of the accused for discharge of any legally enforceable debt or other liability;
iii) the cheque was returned dishonoured;
iv) the legal notice was given to the accused within stipulated period;
v) even after the receipt of the legal notice, the accused chose not to make the payment.
Ld. Counsel for the complainant has submitted that the complainant has Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 satisfied and proved all the ingredients of the offence under Section 138 Negotiable Instrument Act. He has further submitted that presumptions under Section 118 & 139 Negotiable Instrument Act are also there and in view of the aforesaid presumptions, the case of the complainant has been proved. The presumptions mentioned above are as under : Section 118 Negotiable Instrument Act Presumption 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
c) as to time of acceptance--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;.......... Section 139 Negotiable Instrument Act Presumption in favor 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, or any debt or other liability.
16. Therefore, it is settled proposition that when an accused has to rebutt the presumption under section 138 NI Act, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail.
17. Defence raised by the accused in the present case is that he was only the guarantor to the said transaction which was between the accused and DW1. It Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13 is his case that the cheques in question were issued by him only as a security for the loan taken by DW1 and since DW1 has paid the amount, therefore, no case under section 138 NI Act can be made out against him. The testimony of DW1 shows that he has not supported the defence put forward by the accused. Rather he has stated that he has no financial transactions with the complainant and that he stood as a guarantor for the loan taken by the accused from the complainant. This testimony outrightly crushes the defence raised by the accused that he was merely a guarantor. Secondly, he has stated that since the amount has been repaid by DW1, therefore, the complainant is not liable to prosecute him under section 138 NI Act and nothing is due from him to the complainant. Apparently, complainant has stated in his evidence that he had separate transactions with the accused and with DW1. DW1 has also admitted that he paid the amount towards loan amount taken by the accused from the complainant and he has not filed any case for recovery of the said amount from the accused. He further stated that there is no written agreement for the same. Accordingly, from the foregoing discussions, accused has failed to led any cogent evidence to rebutt the presumptions under section 118/139 NI Act, therefore, the court finds that the accused has not been able prove any probable defence.
Nothing can be elucidated from the crossexamination of the complainant which would falsify the case of the complainant. The accused disputed the services of legal notice, however, Ex. CW1/7 to Ex. CW1/10 raises the presumption in favour of the complainant, as per provisions of General Clauses Act, 1897 that the legal notice was duly served. Nothing has been brought on record by the accused to rebutt the aforesaid presumption. Therefore, the complainant has been able to prove his case beyond reasonable doubt.
Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13
18. The complainant has been able to prove that the cheques in question i.e. cheque bearing no. 259248 and 259250 drawn on Canara Bank were issued in discharge of legally recoverable liability to the complainant by the accused.
19. Therefore, the accused Neeraj Jain is hereby convicted for the commission of offence punishable under section 138 NI Act in respect of cheques bearing no. 259248 and 259250 drawn on Canara Bank.
Announced in the (RICHA MANCHANDA)
Open Court on 06.05.2019 Metropolitan Magistrate01
KKD Courts, Delhi
06.05.2019
It is certified that this judgment contains nine (9) pages and each page bears my signature.
(RICHA MANCHANDA)
Digitally signed
by RICHA Metropolitan Magistrate01
MANCHANDA
RICHA NE/KKD Courts, Delhi
MANCHANDA Date:
2019.05.06 06.05.2019
15:06:38
+0530
Kavinder Arya Vs. Neeraj Jain Page 9 of 9 CC No. : 351/13