Delhi District Court
Ahsan Ali vs Rajesh Aggarwal on 3 December, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE
MUNICIPAL MAGISTRATE01, KKD, EAST, NEW DELHI
Presided by : Ms. Deepti Devesh
Complaint No. 142/14
Unique ID No. 02402R0074872014
PS: Gandhi Nagar
Ahsan Ali,
S/o Sh. Anwar Ali,
R/o 219, Gali No.7,
Kardam Puri Extn,
Delhi110094 ........Complainant
VERSUS
Rajesh Aggarwal,
S/o Sh. Gyan Chand Aggarwal,
R/o C8, Pandav Gali No.1,
Arjun Mohalla, Maujpur,
Delhi110053 ........Accused
Complaint under section 138 of the Negotiable
Instruments Ac t
Offence complained of : U/s 138 NI Act
Date of commission of offence : 01.03.2014
Plea of Accused : Not guilty
Final Arguments heard & Concluded on : 19.11.2015
Date of decision of the case : 03.12.2015
Final Order : Acquittal
CC No. 142/14 page no. 1 /12
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1 Vide this Judgment I shall finally dispose off this complaint U/s 138 NI Act by complainant Sh. Ahsan Ali against the accused Sh. Rajesh Aggarwal. The complainant's story in brief is that complainant is doing business in the name and style of M/s Nisha Gee Fashion being sole proprietor and the accused is well known to the complainant. The accused had approached the complainant along with his family members namely Gian Chand, Hukum Chand & his wife Manisha to invest in his business of readymade garments, for which the complainant gave Rs.16,00,000/ in cash to the accused on 10.10.2012 at the house of Yogesh Kumar Sharma in presence of Yogesh Kumar Sharma and another person namely Khushboo. However, the accused failed to supply the goods of ready made garments to the complainant and then on the persistent demand of the complainant in discharge of his legal liability, the accused issued a cheque bearing no.230175 dated 10.01.2014 of Rs.16,00,000/ drawn on PNB, Kailash Nagar, Delhi in favor of the complainant and had assured the complainant that the same shall be honored on its presentation. The said cheque was presented by the complainant which was returned vide return memo dated 24.01.2014 with endorsement of "funds insufficient". Thereafter the complainant issued legal notice dated 12.02.2014. The complainant has also stated that despite service of the legal notice the accused did not make any payment in discharge of his liability.
2 After the filing of the complaint and closing of presummoning evidence, vide order dated 27.03.2014, summons were issued to the accused for the offence U/s 138 NI Act. The accused was admitted to bail on 22.07.2014. Thereafter notice U/s 251 Cr. PC was framed upon the accused on 21.10.2014 to which he did not plead guilty and claimed trial.
CC No. 142/14 page no. 2 /12 3 Application U/s 145(2) NI Act was filed by the accused on 21.10.2014, which was allowed vide order dated 21.10.2014. Thereafter the matter was fixed for CE.
4 In order to prove its case, the complainant examined herself as CW1 who reiterated the contents of the complaint on Oath and filed evidence by way of affidavit. CW1 exhibited original cheque bearing no. 230175 dated 10.01.2014 as Ex. CW1/1, return memo dated 24.01.2014 as Ex. CW1/2, legal notice dated 12.02.2014 as Ex. CW1/3, original postal receipt as Ex. CW1/4, reply to legal notice dated 21.02.2014 as Ex. CW1/5, photocopy of certificate of importer exporter code (IEC) as Ex. CW1/6(OSR), photocopy of driving licence & PAN card of the complainant as Ex. CW1/7(OSR) and photocopy of voter ID card of the complainant as MarkA. Thereafter CW1 was cross examined and discharged on 05.02.2015 and complainant evidence was closed.
5 After that on 07.03.2015 the accused was examined U/s 313 Cr. PC and his statement was duly recorded. All the incriminating evidence were put to the accused, to which the accused stated that he does not know the complainant or that he did not take any money from the complainant for business purpose. He reiterated that the cheque in question had been issued in blank signed condition to Yogesh Kumar Sharma which has been misused. He also admitted receiving of legal notice from the complainant and replying to the same. The accused denied liability of cheque in question towards the complainant. The accused also stated that he wanted to lead defence evidence.
6 Accused examined his wife Smt. Manisha Devi as DW1, who deposed that she had filed a police complaint against unknown persons before DCP office NorthEast on 09.01.2014 which was exhibited as Ex. DW1/1 regarding threat CC No. 142/14 page no. 3 /12 received for settlement of accounts of her husband. Thereafter she was cross examined and discharged on 18.08.2015. thereafter, the accused examined formal witness from DCP office NorthEast, who produced the original complaint made by wife of the accused, which was remarked as Ex. DW1/1(OSR). Thereafter, he was discharged on 19.05.2015. the accused also summoned the Chartered accountant of the complainant as DW3, who produced ITR of the complainant from 200809 till 201415, which were exhibited as Ex. DW2/1(colly for 49 pages), then he was discharged on 18.08.2015 and defence evidence was closed on 25.08.2015 and matter was listed for final arguments.
7 Final arguments were addressed and heard on behalf of both the parties. Ld. Counsel for the complainant has reiterated the averments made in the complaint. He has argued that the accused has failed to disclose any defence. Therefore all ingredients of U/s 138 NI Act stands fulfilled and the accused is liable to be convicted. Ld. Counsel for the complainant has filed written arguments also.
8 On the other hand, the Counsel for the accused has argued that the present complaint should be dismissed as there is no legal liability upon the accused to pay the complainant as no amount of Rs.16,00,000/ was ever taken by the accused from the complainant and that the cheque in question has also not been issued to the complainant. Counsel for the accused has also relied upon Kulvinder Singh v. Kafeel Ahmed Criminal L.P. No. 478 of 2011 decided on 04.01.2013, K. Subramani v. K. Damodar Naidu 2015(1) JCC (NI) 23 and S.K. Jain v. Vijay Kalara 2014 (2) CCC 372 (Delhi).
9 Arguments advanced by both the parties have been heard at length. I have also perused the judicial record.
CC No. 142/14 page no. 4 /12 10 For offence U/s 138 NI Act the necessary ingredients to be proved are:
a) That the accused had a legal liability / debt towards the complainant.
b) That the accused issued a cheque in discharge of the said legal liability / debt.
c) That the accused was maintaining a bank account for the cheque issued by him.
d) That the cheque was presented by the complainant within its validity period.
e) That the cheque was dishonored on his presentation.
f) That the complainant issued legal demand notice within 30 days from
the date of dishonor of the cheque.
g) That the accused failed to pay within 15 days of receipt of legal
demand notice.
If the above ingredients are proved then an offence punishable U/s 138 NI Act is committed.
11 In the present case, the accused has admitted his signatures on the cheque in question and that the cheque in question pertains to his account. He has also admitted receiving legal notice from the complainant and replying to the same. He has however, denied issuing the cheque in question to the complainant but has stated that the same was issued to one Mr. Yogesh Kumar Sharma. Hence, the disputed questions to be decided are whether the cheque in question was issued to the complainant or not and whether the same was issued in discharge of legal liability / debt to the complainant.
12 Firstly, the question whether the cheque in question has been issued CC No. 142/14 page no. 5 /12 for discharge of legally enforceable liability / debt shall be decided. Since the cheque in question is bearing the name of proprietorship of the complainant and the present complaint has been filed by the complainant in his own name therefore, presumption arises U/s 118A & 139 NI Act in favour of the complainant that the cheque was issued in discharge of a legal liability. Thus, the onus to rebut this presumption is on the accused. The accused has disputed his legal liability to make payment on the ground that no business transaction ever took place with the complainant and that the cheque in question had been given to one Mr. Yogesh Kumar Sharma for business purpose in blank signed condition. 13 The complainant has averred in the present complaint that he is a businessman who is well known to the accused and on assurance of the accused that he would provide goods at a cheaper price to the complainant, he gave an amount of Rs.16,00,000/ in cash on 10.10.2012 to the accused for purchasing goods at cheaper price. He has further stated in the present complaint that accused had failed to supply the above said goods, therefore, in order to return Rs.16,00,000/, the accused had issued the cheque in question to the complainant. The complainant has stated in his complaint as well as in his cross examination that the accused had approached the complainant for taking amount of Rs.16,00,000/ at the house of Yogesh Kumar Sharma accompanied by 45 persons. The said transaction took place in the presence of Yogesh Kumar Sharma. However, in the complaint, the complainant has stated that the persons accompanying the accused were his family members i.e. Gyan Chand, Hukum Chand, Rajesh Aggarwal and his wife Manisha, but in his crossexamination, the complainant has stated that he does not know the names of persons accompanying the accused. This is a material contradiction as the complainant himself seems to be unaware of the identity of the witnesses to the fact of giving allegedly Rs.16,00,000/ to the accused. Further, the one witness whose name CC No. 142/14 page no. 6 /12 has been mentioned by the complainant in his complaint as well as in his cross examination, i.e. Yogesh Kumar Sharma, has not even been examined by the complainant as a witness to alleged advancement of Rs.16,00,000/ to the accused, in support of his case.
The complainant has also deposed in his crossexamination that the cheque in question was also given to him by the accused in presence of Yogesh Kumar Sharma and his daughter Shalu Sharma, at the house of Yogesh Kumar Sharma. Despite that, the complainant has failed to examine Yogesh Kuamr Sharma to substantiate his claim that both the amount of Rs.16,00,000/ allegedly advanced to the accused and the cheque in question allegedly issued by the accused to him, in the presence of Yogesh Kumar Sharma. In view of non examination of this key witness, the alleged transaction becomes highly doubtful. 14 The complainant has also deposed in his crossexamination that a Kacchi parchi (agreement) was also taken from the accused by him regarding supply of goods at cheap rate by the accused. However, no such agreement has been placed on record by the complainant. The complainant has explained in crossexamination that the said agreement was taken back by the accused from him at the time of issuance of the cheque in question. The complainant is admittedly is seasoned businessman as he has stated that he is doing business since 1980. Therefore, it appears difficult to believe that such an experienced businessman would return an agreement in original even before payment is actually made or that he would not keep at least a photocopy of the alleged agreement, even if the original was returned. Furthermore, even if it is to be believed that the accused was in possession of the original agreement as alleged by the complainant, then also complainant has failed to take necessary steps like moving an application U/s 91 Cr. PC for summoning of the said document from the possession of the accused. Hence, the actions of the complainant do not CC No. 142/14 page no. 7 /12 appear to be actions of a seasoned, prudent & experienced businessman and therefore, it becomes doubtful that any such agreement was actually executed by the accused for the alleged transaction.
15 The complainant has claimed that he has advanced Rs.16,00,000/ to the accused in cash, which is admittedly a substantial amount of money. In order to show his source for the said income of Rs.16,00,000/, the complainant has deposed in his crossexamination that Rs.6,00,000/ was available with him and remaining amount of Rs.10,00,000/ was taken on loan from a friend namely Jagdish Singh Kasana to give to the accused. He has further admitted in his crossexamination that no loan document was executed between him and Jagdish Singh Kasana for loan of Rs.10,00,000/ and also that he has not shown taking loan of Rs.10,00,000/ in his ITR. Furthermore, the complainant has again not examined Jagdish Singh Kasana as a witness, to prove the advancement of Rs. 10,00,000/ as loan. Since, the complainant has himself admitted that he did not have the funds to advance an amount of Rs.16,00,000/ to the accused and had to himself borrow Rs.10,00,000/, it creates doubt regarding the capacity of the complainant to advance such a huge amount of money. It has been held in K. Prakashan v. P.K. Surenderan 2007 (4) CCC 713 (SC) that it is sufficient for the accused to show that the complainant did not have the capacity to lend the amount of loan for discharging the burden placed upon him to rebut the statutory presumption. All of the above, shows that the capacity of the complainant to advance such a huge loan of Rs.16,00,000/ is doubtful as the complainant had to himself take loan.
16 The complainant has also admitted in his crossexamination that he has not shown the advancement of Rs.16,00,000/ to the accused in his ITR, which admittedly is in contravention of Section of 269 SS Income Tax 1961. CC No. 142/14 page no. 8 /12 According to the said provision, amount of more than Rs.20,000/ has to be advanced only by way of a written document, reflected in the books of account. Since, no written document has been produced by the complainant and the complainant has also not filed his ITR to show declaration of the alleged loan, it can be safely concluded that the alleged loan has been advanced in contravention of tax laws. The Hon'ble High Court of Delhi has held in Kulvinder Singh v. Kafil Ahmed 2014 (2) JCC (NI) 100 that where the loan amount advanced is in contravention of Section 269 SS of Income Tax Act, that it clearly creates a doubt regarding the truthfulness of the stand taken that any loan amount was actually advanced. It has also been reiterated in the judgment of Devender Kumar v. Khem Chand 223 (2015) DLT 419, that an adverse inference can be drawn against the complainant on account of the alleged loan amount not been shown in ITR of the complainant. For the above said reasons, the alleged taking of loan of Rs.10,00,000/ from Jagdish Singh Kasana by the complainant also becomes doubtful as the complainant has admittedly not shown the said loan also in his ITR.
17 The second disputed question i.e. whether the cheque in question was issued to the complainant or not, does not bear any relevancy in view of above discussion as the complainant has failed to prove the alleged transaction and therefore, the accused is liable to be acquitted on that ground alone. However, the complainant has admitted in his crossexamination that the cheque in question has been filled in two different inks as the person accompanying the accused had filled the cheuqe and thereafter the accused had signed the same. No explanation has been given by the complainant as to why the accused himself did not fill in the cheque in question when he himself was present at the time of issuance of the same to the complainant. Furthermore, the complainant has CC No. 142/14 page no. 9 /12 conveniently stated that he does not know the name of the person who had filled in the detail on cheque in question. Hence, the fact that the complainant is admitting that certain details in the cheque in question were filled by somebody else, without disclosing even that person's name, probabalizes the defence raised by the accused that the cheque in question was given in blank signed condition to some other person than the complainant, and later on the details were filled in. Hence, the probability that the cheque in question was not issued to the complainant can not be ruled out in the present case despite admission of signatures of the accused on the cheque in question.
18 Counsel for the complainant has relied on order and decree passed against the present accused in a Civil Suit filed Under Order 37 CPC by the complainant. It has been argued on behalf of the complainant that the said civil suit had been filed on the same facts as the present case and the concerned court has already dismissed the application seeking leave to defend of the accused, wherein the accused had cited same grounds as the defence disclosed in the present case. Admittedly, the order and decree passed against the accused is in a civil dispute between the parties and the finding returned by the concerned court is not binding upon this court. It is well established that the parameters of giving relief in a civil case and a criminal case are different and distinguishable from each other in law. Hence, it is immaterial if a civil court has passed order and decree against the accused on basis of similar facts as that can not usurp the requirement as per law for proving offence U/s 138 NI Act in this case. In the present case, there does not seem to be any requirement for going into the defense taken by the accused, as the above discussion, clearly shows that the complainant himself has failed to prove the transaction in question, without which there can not be any liability U/s 138 NI Act. Therefore, for this reason also it is immaterial that the concerned civil court dismissed the application for leave CC No. 142/14 page no. 10 /12 to defend of the accused based on the same facts as defence disclosed in the present case.
19 It is true that for offence U/s 138 NI Act, the accused is not expected to prove his defense beyond reasonable doubt in order to rebut the statutory presumption. Same has been held by Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513. It is also well settled law that in order to rebut the statutory presumption in favour of the complainant, the accused need not examine himself in evidence or adduce any other defence evidence also. The accused can rebut the statutory presumption on the material already available on record. The same has been held by the Hon'ble Supreme Court in Krishna Janardan Bhat v. Dattatraya G. Hegde 2008 Cri.L.J 1172 (SC). In the present case, the accused has been able to rebut the statutory presumption in favour of the complainant by using the testimony of the complainant in his cross examination, which is in itself sufficient for rebuttal. 20 In view of the above discussion, the complainant has been unable to prove the transaction in question and therefore there is no question of any legal liability / debt of the accused towards the complainant and the present complaint is liable to be dismissed on this ground alone. In the instant case, there is no written agreement, no written receipt, no disclosure in ITR, doubt about capacity of the complainant to advance Rs.16,00,000/ and contradiction in the testimony of the complainant and doubt regarding issuance of cheque in question to the complainant are enough to puncture holes in the complainant's story. Cumulatively, the above circumstances are sufficient to rebut the presumption arising in favour of the complainant U/s 139 NI Act. Accordingly, accused Rajesh Aggarwal, S/o Sh. Gyan Chand Aggarwal, R/o C8, Pandav Gali No.1, Arjun CC No. 142/14 page no. 11 /12 Mohalla, Maujpur, Delhi110053 stands acquitted of the offence under section 138 NI Act.
Announced in the open court
today i.e. 03.12.2015 (DEEPTI DEVESH)
MM:KKD:DELHI:03.12.2015
Containing 12 pages all signed by the presiding officer.
(DEEPTI DEVESH) MM:KKD:DELHI:03.12.2015 CC No. 142/14 page no. 12 /12