Delhi District Court
Kamal Jit Singh vs . on 20 August, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )04 DWARKA COURT, NEW DELHI
Kamal Jit Singh
Vs.
Rakesh Chandra Naithani
C.C. No.862/14
P.S.: Palam Village U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 27.02.2012
b) Name of Complainant Kamal Jit Singh S/o Sh. Prakash Chand, R/o WZ250A, 3rd floor, Gali No.08, Sadh Nagar, Palam Colony, New Delhi110043.
c) Name of the accused and Rakesh Chandra Naithani S/o Late
Address: Sh. Mahesha Nand Naithani, R/o
A38, Brotherhood Group Housing
Society, Bodella, PhaseII,
Vikaspuri, New Delhi110018
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 20.08.2014
h) Date of institution of case: 28.02.2014
i) Date of decision of case: 20.08.2014
CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 1 of 9 2 Brief facts and reasons for decision of the case:
1. Kamal Jit Singh (hereinafter referred as 'the complainant') has alleged via complaint in hand that he was an employee of Rakesh Chandra Naithani (hereinafter referred as 'the accused'). Over the period, he developed a friendly relation with the accused. In January, 2010, the accused approached the complainant and requested for Rs.6 lacs. Being a friend, the complainant gave the desired amount to the accused in cash. However, the money was not returned within the agreed period. The complainant repeatedly requested the accused to return the his money. Finally, the accused agreed to repay and issued a post dated cheque bearing no.414990, dated 11.01.2012, for Rs.6 lacs, drawn on Axis Bank, Janakpuri, New Delhi (Ex.CW1/A). On presentation, the cheque was returned unpaid on 21.01.2012 because the amount in the account of accused was not sufficient (bank memo Ex.CW1/B). On receipt of intimation of dishonour, the complainant demanded the amount by sending a legal demand notice dated 03.02.2012 (Ex.CW1/C). The postal receipts and track report are Ex.CW1/D & Ex.CW1/E. Despite service, the payment was not made good within the statutory CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 2 of 9 3 period. Consequently, the complainant has approached the court with this complaint u/s.138 N.I. Act.
2. During the complainant evidence, the complainant examined himself as a sole witness and file his evidence by way of affidavit (Ex.CW1/1). Besides the documents detailed in the preceeding paragraph, the complainant moved an application u/s.311 CrPC before the court of Ld. Predecessor on 17.09.2013, for filing the additional documents. Same was allowed and the following additional documents were filed : ● Copy of receipt dated 18.11.2011 {Ex.CW1/1 (colly.)}, ● Statement of account (Ex.CW1/2), ● Loan agreement (Ex.CW1/3), ● Copy of bank statement (Ex.CW1/4), ● Letter dated 05.01.2010 (Ex.CW1/5), ● Copy of cheque dated 15.08.2010 (Ex.CW1/6) & cheque dated 23.10.2010 (Ex.CW1/7).
CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 3 of 9 4
3. The complainant was cross examined at length by ld. counsel for the accused.
4. After the complainant's evidence, the statement of the accused was recorded twice. Firstly, on 01.08.2013, and secondly, on 20.03.2014, after the additional documents were filed by the complainant. During the statement, the entire incriminating evidence was put to the accused. Accused admitted of having availed loan from the complainant. However, he stated that the impugned cheque was issued for purpose of security. Further, he stated that document Ex.CW1/3, Ex.CW1/6 & Ex.CW1/7 were false and fabricated.
5. Thereafter, accused moved an application u/s.315 CrPC, seeking permission to enter the witness box as a defence witness. The accused was examined as DW1. He placed on record a copy of CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 4 of 9 5 demand draft of Rs.75,000/, allegedly handed over to the complainant by him (Ex.DW1/1).
6. The accused was cross examined by ld. counsel for the accused.
7. I have heard the arguments from the counsels appearing on behalf of the parties. Now, I proceed with the judgment.
8. During the cross examination, the accused admitted of having availed a loan of Rs.6 lacs from the complainant in 2010. However, the rate of interest was disputed because the complainant had stated during his cross examination that loan was advanced @4% yearly interest. During the argument, ld. counsel for the complainant explained that the rate of interest was 4% monthly and not yearly. Ld. counsel also referred to the loan agreement CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 5 of 9 6 Ex.CW1/3. This document makes it clear that agreed rate of interest was 4% per month and not 4% yearly.
9. During the statement u/s.313 CrPC, the accused has claimed that document Ex.CW1/3 was false and fabricated. Though, he admitted his signatures upon this document during his cross examination, but he voluntarily explained that it was got signed by the complainant alongwith other document as the accused used to sign many documents through the complainant out of mutual trust because the complainant was his employee as well as a friend.
10. The above explanation given by the accused is not convincing. The reason is, if the document was fraudulently got signed by the complainant and the agreement was subsequently drafted, accused could have approached police authorities to report the matter. It would have been the usual approach of any prudent person, but no such steps were taken by the accused. Bald statement is not sufficient to raise any doubt on the authenticity of loan document CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 6 of 9 7 Ex CW1/3. Thus, Ex CW1/3 proves that complainant had advanced a loan of Rs.6 lacs to the accused @4% monthly rate of interest.
11. The second contention raised by the ld. counsel for the accused is that since the accused had made the payment of Rs.1.75 lacs against the impugned loan of Rs.6 lacs, the total liability of the accused was reduced to an amount less than Rs.6 lacs, i.e., the cheque amount in dispute.
12. The payment of Rs.1.75 lacs is not disputed by the complainant. He stated during his cross examination that accused made the payment of Rs.1 lac in November, 2011 in order to compensate him qua the interest paid by him to the bank from which the complainant had obtained the loan against his savings to advance the same to the accused. The complainant further admitted that a sum of Rs.75,000/ was also paid by the accused in November, 2012, but same was against the outstanding arrears of his salary. CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 7 of 9 8
13. The above explanations given by the complainant regarding the purpose for which the said payment of Rs.1.75 lacs was made to him are not corroborated, therefore, this court is relying upon version given by the accused that this amount was paid towards the repayment of loan advanced.
14. Now, the important question is whether the payment of Rs. 1.75 lacs reduced the liability of the accused below Rs.6 lacs, i.e., amount in question. As discussed above, loan of Rs.6 lacs is admitted by the accused. The interest @4% per month is also proved. The loan was advanced on 15.01.2010 and the impugned cheque was issued on 11.01.2012. Now, if the agreed rate of interest is calculated for 2 years, accrued interest amount would alone be Rs. 6 lacs (approximately). Therefore, even after deducting the amount of Rs. 1.75 lacs, the liability of the accused will remain more than Rs. 6 lacs. Thus, the argument that liability of the accused was less than Rs.6 lacs after repayment of Rs.1.75 lacs is liable to be rejected. CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 8 of 9 9
15. Nothing has been brought on record to probablize the defence of security cheque.
16. The dishonour of the impugned cheque is proved by dishonour memo Ex.CW1/B. The receipt of legal demand notice has been admitted by the accused during his statement u/s.313 CrPC.
17. The conclusion of above discussions is that accused had issued the impugned cheque for repayment of loan availed by him and he failed to make the payment despite service of legal demand notice. Accused failed to probablize any of the alleged defences in his favour. Accused stands convicted for the offence u/s.138 N.I. Act. (Announced in the open court on 20.08.2014) This Judgment contains 9 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.862/14; Kamaljit Singh Vs. Rakesh Chandra Naithani Page 9 of 9