Delhi District Court
Netrapal Singh vs . Jeetu Sharma on 19 October, 2015
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Netrapal Singh Vs. Jeetu Sharma
CC No.1329/2014
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02406R0193732013
Number of the case
2. Name of the complainant : Netrapal Singh
S/o Sh.Jawahar Singh
R/o 548-D, Bank Colony,
Dewali Khanpur, New Delhi
3. Name of the accused , : Jeetu Sharma
parentage & residential S/o Not Known
address R/o RZ-16, Gali No.6,
Tugalkabad Extn. New Delhi-19
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881
5. Plea of the accused : Pleaded not guilty and
claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 19.10.2015
Date of Institution : 24.07.2013
Date of Reserving Judgment/Order : 08.10.2015
Date of Pronouncement of Judgment/Order : 19.10.2015
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by Netrapal Singh (hereinafter referred to as 'complainant') against Jeetu Sharma (hereinafter referred to as 'accused') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
Netrapal Singh Vs. Jeetu Sharma page 1 of 6
2. Accused has furnished bail bond u/s 437A Cr.P.C.
3. It is submitted by the complainant that accused took friendly loan of Rs.1,48,000/- from complainant in the month of October,2012 and accused promised that the said amount will be repaid within a period of 6-7 months. Accused issued a cheque bearing No.339290 dated 17.05.2013 for Rs.1,48,000/- drawn on Karur Vysya Bank, Delhi to repay the loan amount. The complainant presented the said cheque for encashment, the same was returned unpaid with the remarks "Account Is Inoperative" vide returning memo dated 28.05.2012. Thereafter, complainant got issued legal demand notice dated 08.06.13 through registered post but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
4. Notice u/s 251 Cr.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
5. To prove his case, complainant has examined himself as CW-1 by way of affidavit Ex. CW-1/F who has relied upon the following documents:-
(a) Returning memo is Ex. CW-1/A,
(b)Original cheque in question Ex. CW-1/B,
(c)Copy of legal demand notice Ex. CW-1/C,
(d)AD Card,Registered post receipt and courier receipt for sending legal demand notice are Ex. CW-1/D to Ex. CW-1/E (colly.) Complainant also examined one Ram Avtar Yadav as CW-2.
Both the witnesses were discharged after cross examination.
Netrapal Singh Vs. Jeetu Sharma page 2 of 6
6. In the statement of accused recorded u/s 313 Cr.P.C., all the incriminating evidence were put to the accused to which accused has stated that he did not take any loan from the complainant and had no friendly relationship with me .He further stated that he did not issue the cheque in question to the complainant.
7. Accused has not examined any witness in support of his defence.
8. Final arguments on behalf of the parties heard.
9. Ld. Counsel for the complainant submits that the complainant granted a sum of Rs.1,48,000/- to the accused and the cheque in question got dishonored on its presentation. Ld. Counsel for the complainant further argued that accused failed to rebut the presumption u/s 118 and 139 of Negotiable Instruments Act because the accused neither lodged any complaint with the police regarding the theft of the cheque in question nor examined Jeevan Lal in his defence evidence to whom accused allegedly give the cheque in question. Hence, accused be convicted for the offence u/s 138 of Negotiable Instruments Act.
10. On the other hand, Ld. Counsel for the accused submits that accused did not take any loan from the complainant and complainant did not file any document on record to prove the said loan. He further argued that there is a contradiction in oral testimony CW1 & CW2 regarding the source of loan amount and date on which the loan amount was given to the accused. He further submitted that the cheque bears the Netrapal Singh Vs. Jeetu Sharma page 3 of 6 date 17.05.2013 whereas in the returning memo, the date of cheque is mentioned as 29.05.2013 and a complainant has not examined any witness from his bank to explain this contradiction. He further submitted that complainant has failed to prove his case beyond reasonable doubt as he has failed to prove the very ingredient of giving loan as there is no document to this effect. Ld. Counsel for the accused further submits that accused is not liable to pay any thing to the account. Hence, accused should be acquitted for the offence u/s 138 of Negotiable Instruments Act.
11. In the Judgment of the case titled as "Kulvinder Singh Vs. Kafeel Ahmed", 2014 (2) JCC (NI) 100, it was so observed that: -
"The case of the petitioner is nutshell is that he had been approached by the respondent and he had advanced a loan of Rs. 9,30,000/- in the first instance. If such a huge amount of money is advanced as a loan to the respondent, the petitioner ought to have shown to the court concerned as to the source from where he had generated such a huge amount. In his examination/cross examination, he stated that he had sold his machinery but he failed to produce any record to that effect. He has not reflected the loan advanced to the respondent in his income tax return not is he able to tell to the court the Ward in which the income tax return is filed. The learned Magistrate has rightly placed reliance on the provisions of Section 269 SS of Income Tax Act where in it is specifically laid down that if a loan is advanced which is more than Rs.20,000/-, it has to be by way of writing reflected in the books of account but nothing of that sort has been done in the instant case. Obviously, this clearly creates a doubt regarding the truthfulness of the stand taken by the petitioner that he had advanced a loan of Rs.9,30,000/- to the respondent."
In the Judgement of the case tilted as "G. Pankajakshmi Amma and Ors. Vs. Mathai Mathew", (2004) 12 SCC 83, it was so observed that: -
Netrapal Singh Vs. Jeetu Sharma page 4 of 6 "10. There is any reason also why the impugned Judgment cannot be upheld. According to the 1st respondent these transactions were to be unaccounted transactions. According to the 1st respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transaction, the court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed."
In the Judgment in the case titled as "Sanjay Mishra Vs. Kanishka Kappor Alias Nikki", 2009-Laws (Bom)-2-9, it was so observed that: -
"If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months, the failure to disclose the amount in income tax return or books of accounts of the complainant may be sufficient to rebut the presumption under section 139 of the said Act.
12. In the present case, the complainant has not produced any document on record to prove that the loan of Rs. 1,48,000/- was given to the accused. The said loan amount was allegedly given in cash. The complainant did not produce his ITR in order to show that the said loan amount reflected by the complainant in his ITR. Hence, the said amount was unaccounted money and it was not a legally recoverable debt. It was held in case tilted as G. Pankajakshi Amma case (supra) that if these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction.
13. The complainant in his complaint has stated that he had given of friendly of Rs.1,48,000/-after selling his Tavera car for sum of Rs.3.50 lacs in October,2012. Whereas in his cross-examination the complainant stated that he had given Netrapal Singh Vs. Jeetu Sharma page 5 of 6 Rs.1.50 lacs by way of cash to accused in two installments in the presence of Ram Avtar in 2013. Whereas CW-2 in his cross-examination stated that complainant borrowed Rs.
48,000/- from him and gave Rs.1.48 lacs to the accused in his presence on a single date.
14. After appreciation of the above evidence, the court is of considered opinion that the oral testimony of complainant and CW-2 Ram Avtar cannot be relied upon due to the contradiction regarding the year of loan and loan amount and source of the loan to fix the liability of the accused especially in absence of any loan document. Hence, complainant has miserably failed to prove the fact that there is a legally recoverable debt payable by the accused.
Conclusion:
15. In view of the aforesaid findings, the court is of the considered opinion that accused is able to adduce a probable defence in his favour and to rebut the presumption u/s 139 of Negotiable Instruments Act. The onus to prove the legal liability of the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused is acquitted for the offence u/s 138 N.I. Act.
Announced in the open court (Gagandeep Jindal) on 19.10.2015 MM(N.I. Act):SED: Saket Courts, New Delhi Netrapal Singh Vs. Jeetu Sharma page 6 of 6