Delhi District Court
Reliance Capital Ltd vs Lalit Kumar Jain on 15 September, 2011
IN THE COURT OF MS. SUSHEEL BALA DAGAR, METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI CC No. : 18101/10 PS :New Friends Colony U/s 138 NI Act Reliance Capital Ltd. Having its office at: 260261, Dev House Tribhuvan Complex, Ishwar Nagar New Friends Colony, New Delhi 110 065 .......Complainant Versus Lalit Kumar Jain 10, Harsh Vihar, Mama Mia Banquet Hall Pitam Pura, Delhi Zip 110 034 .........Accused Date of Institution : 23rd January, 2010 Plea of Accused : Pleaded not guilty Date on which judgment was reserved : 8thSeptember, 2011 Final order : Acquitted Date of decision : 15thSeptember,2011 J U D G M E N T :
1. The case of the complainant is that the accused approached the complainant for availing the vehicle finance and the complainant disbursed the amount financed in terms of the agreement vide Loan no. RLNCDEL000008240. The accused had issued a cheque bearing CC No. : 18101/10 RCL v. Lalit Kumar Jain 1/9 no. 542383, dt. 04.08.2009 drawn on Canara Bank, in favour of complainant for an amount of Rs. 62,040/ towards discharge of his legal liability. On presentation, the said cheque was returned unpaid with the remarks "Account Closed" vide return memo dt. 13.11.2009. The complainant issued a legal demand notice dt. 25.11.2009 to the accused and the same was returned with the remark of refusal by the accused on 01.12.2009. Accused did not pay the cheque amount within statutory period, hence, complainant has filed this case.
2. The complainant led pre summoning evidence by way of affidavit and the accused appeared on 15.03.2010 after receiving condonation of delay notice and cognizance for the offence under Section 138 Negotiable Instrument Act, 1881(hereinafter called as the Act) was taken on 15.03.2010. On appearance of the accused a notice under Section 251 Cr.P.C. dt 27.04.2011 was served upon the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case the authorized representative of the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before the Court and filed an affidavit in evidence which is Ex. CW1/1. He exhibited Power of Attorney in his favour whereby he was authorized to file the complaint and depose in CC No. : 18101/10 RCL v. Lalit Kumar Jain 2/9 Court as Exhibit CW1/A, Cheque in question as Exhibit CW1/B, Cheque returning memo as Exhibit CW1/C, Legal notice of demand as Exhibit CW1/D, Postal Receipt as Exhibit CW1/E, Copy of Proof of Delivery as Exhibits CW1/F and Complaint as Exhibit CW1/G.
4. The statement of accused was recorded under Section 313 Cr.P.C in which all the incriminating evidence was put to the accused, Lalit Kumar Jain. In reply to the said incriminating evidence the accused submitted that he had taken the loan from the complainant for purchasing Indica Car from Sterling Auto, Noida on 01.08.2007. He got the said car insured from the sister concern of complainant namely Reliance General Insurance Company. The loan was to be repaid in 3 years by way of Equated monthly installments of Rs. 10,340/ each. The car was stolen on 17.08.2008 for which a case was registered vide FIR no. 653/07 u/s 379 IPC PS: Prashant Vihar. When the accused informed about the theft of the car, the complainant issued letter mark A dt. 14.07.2011 in favour of its sister concern. The accused was informed that the complainant will take the payment from the insurance company and close the Auto loan. The cheque in question is a security cheque which was taken blank signed at the time of sanction of the loan. The accused has no dues and liabilities against the same.
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5. In his defence, the accused has examined himself as DW1 and his friend Sh. Sanjay Kumar as DW2. DW1 reiterated his statement u/s 313 CrPC on oath. He placed on record internet generated payment schedule of his loan as mark X and copy of insurance letter as mark C. He had made payment of only one installment against the sanctioned loan of Rs. 2,94,000/ as after that his car was stolen. DW2, Sh. Sanjay Kumar lodged DD entry for theft of the car and got registered the FIR on 08.09.2007 which is mark B. The accused has given the car to DW2 for commercial usage. Defence evidence was closed and the matter was fixed for final arguments.
6. I have heard Sh. Anil Sharma, Ld. Counsel for the accused and Sh. Sudhir Sharma, Ld. Counsel for the complainant. Counsel for the complainant has relied on the judgments MOJJ Engineering Systems Ltd. v. A. B. Sugars Ltd. 154 (2008) DLT 579; C.C.Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555; Subodh S. Salaskar v. Jayprakash M. Shah 2008 [3] JCC [NI] 330; The Associated Cement Co. Ltd. v. Keshvanand DCR 52 SC Crl. no. 1239 of 1997; NEPC Micon Ltd. v. Magma Leasing Ltd. DCR 16 SC Crl. Appeal no. 481 of 1999; Hiten P. Dalal v. Bratindranath Banerjee AIR 2001 SC 3897; M. Arun Ahluwalia v. Arun Oberoi 2011 [3] JCC [NI] 175.
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7. The main ingredient of Section 138 of the Act are as follows: i. The accused issued cheque on an account maintained by him with a bank.
ii. The said cheque has been issued in discharge of any legal debt or other liability. As per the explanation given in Section 138 of the Act, debt or other liability means a legally enforceable debt or other liability.
iii. The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv. When the aforesaid cheque was presented for encashment, the same was returned unpaid / dishonored.
v. The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 of the Act. Keeping in mind the above stated ingredients, CC No. : 18101/10 RCL v. Lalit Kumar Jain 5/9 appreciation of evidence and material on record is required.
8. In the present case the cheque in question is admittedly issued/signed by the accused and the cheque was presented within statutory period and the same was return unpaid / dishonoured. It is the defence of the accused that the vehicle for which the loan / hire purchase agreement was executed was stolen and he had informed the complainant about the same. Hence, the security cheque which was given at the time of agreement lost its significance as the complainant had issued a letter to the insurance company for processing of the theft claim.
9. The only point of consideration in the present case is whether the accused has any legally enforceable liability to pay the cheque in question after the theft of the vehicle or not. From the evidence on record it is clear that the cheque in question was presented on 04.08.2009 and it is not against payment of any installment against the loan in question. The fact of theft of the vehicle is already on record. The same has been admitted to be correct by the counsel for the complainant at the stage of the arguments.
10. It is well settled preposition of criminal law that the case of the prosecution / complainant should stand on its own legs and it is the CC No. : 18101/10 RCL v. Lalit Kumar Jain 6/9 duty of the complainant to prove its case. When the cheque in question was presented for encashment the vehicle was already stolen and the complainant had full knowledge about the same. The complainant is not able to prove how the accused was liable to make payment if the insurance claim in favour of the complainant was to be processed by the sister concern of the complainant itself.
11. Further, Ld. Counsel for the accused submits that the complainant has not remained consistent and has been changing its version again and again. The complainant has been making contradictory statements during the course of trial. To substantiate his version counsel for the accused has referred to para 3 of the complaint which is reproduced as under: "Para 3 That the accused committed defaults in payments and his loan was recalled and the accused had become liable to pay the foreclosure amount of the loan to the complainant..." This averment of the complainant is contradictory to deposition of CW1 during cross examination. CW1 stated that "...cheque in question is a part payment of EMI. I do not know the cheque in question is of which month. I do not know on which car the loan was taken by the accused...". This clearly shows that there is a contradiction in the version of the complainant. Either the cheque in question is a part payment of the EMI as stated by CW1 during cross examination or it is the foreclosure CC No. : 18101/10 RCL v. Lalit Kumar Jain 7/9 amount as stated in the complaint.
12. The complainant has been changing its version about the cheque in question being the foreclosure amount in the complaint and submitting that it is the EMI amount during cross examination. The complainant can 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. Hence, from the version of the complainant itself a doubt is cast on the case of the complainant.
13. Moreover, it is pertinent to mention that CW1 during cross examination could not tell the amount of loan sanctioned to the accused, he did not remember the amount of EMI nor the number of EMIs paid by the accused. He refused to have any knowledge that the vehicle was stolen. He did not remember the date on which the loan was sanctioned. CW1 did not bring any statement of account of accused. He could not tell as to against which installments cheque in question was issued by the accused. This clearly shows that the complainant is trying to suppress the material fact of the case by feigning ignorance / pretending unawareness even though CW1 in his affidavit has solemnly affirmed that he is well conversant with the CC No. : 18101/10 RCL v. Lalit Kumar Jain 8/9 facts and circumstances of the present case.
14. Thus, the accused by way of cross examination of CW1 has been able to create a doubt as to the existence of consideration. Accused has placed on record the letter mark B regarding processing of the insurance claim by the complainant. He produced the original of letter mark B which further substantiates the doubt on the case of the complainant. It was for the complainant to prove that the cheque in question was issued towards debt or liability, which the complainant has failed to prove.
15. Hence, the accused has been able to raise preponderance of probabilities in his favour which are believable. In these circumstances, there is no question of Section 138 of the Act being attracted. Accused is 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 15th day of September, 2011 Metropolitan Magistrate
Dwarka Courts, Delhi.
All pages signed.
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