Delhi District Court
Page No. 1 To 9 Rakesh Kumar vs . Mahender Kumar on 8 January, 2014
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK728/06
b. Date of the commission of the offence : 08/06/2006
c. Name of the complainant Rakesh Kumar
d. Name of accused person and his parentage: Mahender Kumar,
and residence S/o Late Shree Ram,
R/o A10, Baldev Park, Delhi51.
e. Offence complained of : Dishonoring of cheque
for insufficient funds.
f. Plea of the accused and his examination (if any): Not guilty
because complainant had
manipulated amount of
cheque in question and no loan
taken from the complainant.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 13.12.2013.
Page No. 1 To 9 Rakesh Kumar Vs. Mahender Kumar
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i. Order pronounced on : 08.01.2014
Brief reasons for decision:
1.Briefly stated the facts of this case are that accused and complainant were allegedly having friendly relationship and accused approached the complainant in July 2005 for a friendly loan of Rs. 60,000/ refundable by the end of 2005. Complainant claimed that he had advanced a loan of Rs. 60,000/ to accused on 12.07.2005. Complainant further claimed that accused had issued self cheques of Rs. 5,000/ and Rs. 7,000/ and self cheque of Rs. 5,000/ had been encashed. It is case of complainant that accused had also issued an account payee cheque bearing number 139985 dt. 25.12.2005 Ex. CW1/1 (hereinafter referred to as cheque in question) for a sum of Rs. 48,000/ in favour of complainant as full and final payment towards loan amount of complainant. It is also case of complainant that said cheque in question had returned unpaid vide cheque returning memo Ex. CW1/3 dt. 10.05.2006 with remarks "Insufficient Funds. It is further case of complainant that accused did not pay cheque amount within stipulated time despite service of legal demand notice Ex. CW1/4 dt. 23.05.2006. Hence, aggrieved from the aforesaid conduct of accused, complainant filed the present complaint case u/s 138 of NI Act on 04.07.2006.
2. On the other hand, accused admitted his signature appearing on his Page No. 2 To 9 Rakesh Kumar Vs. Mahender Kumar 3 cheque in question. However, accused pleaded that he had filled column of amount in figure as Rs. 8,000/ and date as 25.02.2005. Accused further pleaded that he had handed over cheque in question to some Vijay who was organizing committee in the name of JVG as he had promised big immediate profit. Accused also pleaded that after 23 months from issuance of cheque to Vijay he came to know that said JVG is a forged company. Accused further stated that he came to know as to cheque in question being in the possession of complainant when he received summon issued by the court. Accused denied service of legal demand notice. However, complainant filed postal acknowledgment Ex. CW1/6 and UPC Ex. CW1/5 regarding sending of legal demand notice Ex. CW1/4. Moreover, plea of non service of legal demand notice is not plausible legal defence for accused. Reference may be made to judgment of Supreme Court of India made in C. C. Alavi Haji Vs. P. Muhammed (2007) 6 SCC 555 and relevant para of the same is reproduced as under:
17. "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of NI Act, make Page No. 3 To 9 Rakesh Kumar Vs. Mahender Kumar 4 payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons, therefore, complaint is liable to be rejected. Any person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G. C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium of avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
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18. "In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 04.08.2001, the same was returned on 10.08.2001 saying that the accused was out of Page No. 4 To 9 Rakesh Kumar Vs. Mahender Kumar 5 station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." . In view of aforesaid observation of Hon'ble Supreme Court of India nonservice of legal demand notice is of no great legal importance for accused.
3. It is noticeable that accused DW1 u/s 315 Cr.P.C admitted that he knew complainant since 2003 and handed over cheque in question to complainant on 25.01.2005 as complainant was an agent of some Raj Kumar who was associated with JVG Group Company. Accused (DW1) further stated that complainant told him to invest in JVG Company for big profit and he had issued cheque in question for a sum of Rs. 8,000/ after signing on the same at point A. Accused (DW1) denied signing on cheque in question at point B. Accused (DW1) also claimed that complainant had put digit 4 before 8,000/ in Page No. 5 To 9 Rakesh Kumar Vs. Mahender Kumar 6 column of amount on cheque in question without his consent. In these circumstances, the main plea of accused which required to be determined by this court is whether complainant had altered amount in question from Rs. 8,000/ to present amount of Rs. 48,000/ as appearing on cheque in question. DW2 Sh. Dewak Ram, Assistant Director (Document), testified before the court that after scientific examination he found that figure "4" before 8000/ is written with different tint of ink from that of 8000/. He further testified that body writing "forty" was also written with different tint of ink from remaining writings of Q1/1 as appearing on cheque in question. The testimony of government document expert suggest that some alteration had been caused subsequently. It is not case of complainant that alteration had been endorsed or consented by the accused. In such circumstances, it is up to the holder of cheque in question i.e. complainant to prove who had caused alteration in the column of amount of cheque in question. Under section 103 of Indian Evidence Act 1872 burden of proof regarding said particular fact is on possessor of cheque in question i.e. complainant, who wishes the court to believe cheque in question had been duly filled by accused or his representative or subsequent endorsement of any alteration by drawer. Moreover, no illwill or motive could be attributed to said governmental scientist. Section 87 of NI Act renders any cheque void if instrument suffers from any material alteration without endorsement / consent of drawer. It is settled position that manipulation in amount of cheque is material alteration.
Page No. 6 To 9 Rakesh Kumar Vs. Mahender Kumar 7 Hon'ble Supreme court of India in case Veera Exports Vs. T. Kalavathy 2001 IX AD (SC) 165=AIR 2002 SC 38=2002 (1) RCR (Crl.) 221=2002 (1) Crimes 123 = 2002 Crl.L.J. 203 held that drawer voluntarily can revalidate the cheque even if its validity period is over by simply altering the date of it. However, the alteration should be made by drawer himself or with his consent. Bank only accepts such altered cheque when such alterations are approved and verified by the drawer by putting his signature or endorsement on such alterations. Without such approval, if bank clears the cheque, then it runs the risk of its consequences that entitles the drawer to make up the loss and damages, if any. It was further held by the Supreme Court that : "The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complaint against such alteration, e.g. If the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also can not be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether Page No. 7 To 9 Rakesh Kumar Vs. Mahender Kumar 8 it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed."
4. Ld. Counsel for accused contended that complainant did not file any documentary proof regarding transaction in question. Counsel for accused further contended that complainant did not filed income tax returning showing transaction in question with accused and complainant could not have advanced cash loan more than Rs. 20,000/ u/s 269 SS Income Tax Act 1961.
5. Ld. Counsel for accused stated that complainant had committed fraud with accused under the garb of being an agent of JVG Group and by manipulating the amount of cheque in question. Ld. Counsel for accused further stated that complainant did not file any proof regarding alleged encashment of any previous cheque of accused and Ld. Counsel for accused questioned alleged issuance of 3 cheques for repayment of alleged loan of Rs. 60,000/ as accused could have issued only one cheque of due amount. Aforesaid conduct of complainant does not confirm the prudence of a lawabiding citizen reasonable in given situation. Complainant also failed to explain as to why he advanced such huge loan in question in cash without taking any security or written proof.
6. Court is also mindful of settled position of law as to accused has to Page No. 8 To 9 Rakesh Kumar Vs. Mahender Kumar 9 rebut legal presumption with standard of balance of probability and once, accused managed to probablies his / her defence, it is unalienable duty of complainant to prove his / her case beyond all reasonable doubt. Complainant can not be allowed to prove his / her case by taking benefit of any lacuna in defence of accused as the case of complainant has to stand on its own legs. Court is also aware of basic tenant of criminal jurisprudence regarding benefit of any reasonable doubt must be given to the accused and in case of possibility of two versions, the version favouring innocence of accused should be opted by the court.
7. In view of above discussions, the court is of considered opinion that accused has created reasonable doubt over the veracity of story of complainant and complainant failed to bring on record any credible evidence / proof to demonstrate that he has actually granted a loan of Rs. 60,000/. In upshot of aforesaid discussion, I have no hesitation in ordering acquittal of accused for offence u/s 138 of NI Act in this case.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 08th Day of January, 2014 MM, NI Act, (East)
KKD Courts, Delhi.
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