Delhi District Court
Devender Singh vs . Deepak Madan on 8 June, 2023
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 399/2020
CNR NO.: DLND02-000277-2020
Devender Singh
S/o Sh. Gaje Singh
NDMC Flat no.3, Basurkar Market
Moti Bagh, New Delhi-110023.
......Complainant
versus
Deepak Madan
Director of M/s Scienceinsteing Edutech Pvt. Ltd.,
S/o Sh. Prakash Chander Madan,
A-103, New Town Heights, Sector-91,
Gurugram, Haryana.
........Accused
JUDGEMENT
Date of Institution of Complaint : 07.01.2020 Police Station : Chanakyapuri Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 30.05.2023 Decision Qua Accused : Acquitted Date of Decision : 08.06.2023 BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgement, I shall decide the present complaint filed u/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) filed by the complainant against the accused on account of dishonour of cheque bearing no.710103 dated 15.09.2019 for a sum of Rs.12,00,000/- drawn on ICICI Bank Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 1 of 22 allegedly issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
CASE OF THE COMPLAINANT
2. Brief facts of the case as per the complaint are that accused was an old acquaintance of complainant. It is further stated that accused approached the complainant and requested for a friendly loan for a sum of Rs.20,00,000/- in the first week of August, 2018. It is further stated that complainant had given the said loan to the accused in the month of August, 2018 and accused in turn assured the complainant for repayment of the same within a period of six months. It is further stated that the complainant paid Rs.8,00,000/- through RTGS and remaining Rs.12,00,000/- in cash by arranging from a relative.
3. That after about 3 months, the accused issued cheque bearing no. 004384 for a sum of Rs.12,00,000/- to the complainant and the same was dishonoured for the reasons "Funds Insufficient" upon presentation. That thereafter, as soon as the fact of dishonour of the said cheque was brought to the knowledge of the accused, the accused paid a sum of Rs.8,00,000/- through online transfer on three different dates from 22.01.2019 to 04.02.2019. That after 2-3 months, the accused issued the cheque in question as a post dated cheque.
4. It is further stated that on presentation, the cheque in question was returned dishonoured with remarks "Funds Insufficient" vide cheque return memo dated 29.10.2019 and with the remarks "Payment Stopped By Drawer" vide cheque return memo dated 18.11.2019. That thereafter, a legal notice was sent to the accused dated 11.12.2019 and since no payment was made within 15 days of the service of legal notice, then the present case Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 2 of 22 has been filed.
5. In support of the case of the complainant, Ld. counsel for the complainant has relied on averments made in the complaint, the evidence by way of affidavit filed by the complainant, the presumption of law u/s. 118(a) r/w. 139 of the NI Act and the following documentary evidence:
1. Original Cheque bearing no. 710103 Ex.CW-1/A
2. Original Bank return memos of Ex.CW-1/B(colly) cheque bearing no. 710103
3. Original Cheque bearing no. 004384 Ex.CW-1/C
4. Bank return memo of cheque bearing Ex.CW-1/D no. 004384
5. Legal demand notice Ex.CW-1/E
6. Postal receipts Ex.CW-1/F (colly)
7. Tracking reports Ex.CW-1/G (colly)
8. Copy of Passbook of the Complainant Ex.CW-1/H (colly) (OSR)
9. Present complaint Ex.CW-1/1 CASE PROCEEDINGS
6. In the present matter notice of accusation u/s. 138 of the NI Act was served on the accused on 27.10.2021 and the accused pleaded not guilty and claimed trial. The plea of defence of the accused was also recorded by the court on the same day.
7. An application u/s. 145(2) of the NI Act moved on behalf of the accused was allowed vide order dated 16.12.2021 and the accused was granted an opportunity to cross-examine the complainant. The complainant was duly cross-examined and discharged and vide separate statement of the complainant dated 19.02.2022, the post-summoning evidence was closed.
8. Statement of accused u/s. 281 r/w. Section 313 CrPC was Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 3 of 22 recorded on 09.09.2022 and all the incriminating evidence was put to the accused. During statement of the accused u/s 313 CrPC, the accused has admitted that he has signed the cheque bearing no. 710103 and had written the amount in words and figures on the cheque in question and the date. He further stated that he had not written the name of the payee and the cheque has never been presented in his bank account and the date on the cheque has been altered from 15.04.2019 to 15.09.2019. He further stated that he has not signed cheque bearing no. 004384 and he has also not filled any particulars on the same. He has further stated that he has not received the legal notice and the address mentioned on the legal notice is his incorrect address. He further stated that he was not having his office at the first given address and he was also not residing at the second address mentioned in the legal notice. He has further stated that he has not given any cheque to the complainant and the cheque has been stolen by the son of the complainant, namely Sh. Nikunj from the dashboard of his car. He has further stated that he has received only Rs. 8,00,000/- from the complainant and he has never received any sum of money in cash from the complainant, particularly he has not received Rs. 12,00,000/- from the complainant in cash as stated by him in the complaint. He further stated that he has already repaid Rs. 8,00,000/- to the complainant before filing of the present complaint and he denied having legally enforceable debt or liability in favour of the complainant in regard to the cheque in question.
9. Since the accused chose to lead Defence Evidence, matter was fixed for filing of appropriate application u/s. 315 CrPC along with list of witnesses, if required. An application u/s. 315 CrPC filed by the accused seeking permission of this court to examine Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 4 of 22 himself as a witness for the defence was allowed by this court vide order dated 19.11.2022. In support of his defence, the accused has examined five witnesses, namely, Sh. Amit Madan as DW-1, himself as DW-2, Ms. Deepali Madan as DW-3, Sh. Ghanshyam Pal, Bank Official from ICICI Bank as DW-4 and Sh. Naresh Chauhan, Bank Official from Punjab National Bank as DW-5. All the witnesses were duly cross-examined by Ld. counsel for the complainant and discharged. Vide separate statement of the accused dated 09.05.2023 the defence evidence was closed and matter was adjourned for final arguments.
10. During defence evidence, the following documents have been placed on record:
S. No. Document Exhibit
1. Proof of online payment of several Ex.DW-1/1 (colly) sums of money
2. Proof of cash payment of Mark DW-1/2 Rs.2,00,000/-
3. Police complaint dated 13.10.2021 Ex.DW-1/3 (colly) and 16.12.2021
4. Account statement of M/s Ex.DW-4/1 (colly) Scienceinsteing Edutech Pvt. Ltd.
bearing account no. 031305000819
5. Joint account statement of Sh. Ex.DW-5/1 Devender Singh and Ms. Leela Devi bearing account no.
1736000100149154
11. Final arguments were heard by this court on 30.05.2023.
12. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
13. At the very outset, it is pertinent to lay down the ingredients of the offence u/s. 138 of NI Act. In Jugesh Sehgal vs. Shamsher Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 5 of 22 Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
14. Before moving forward with the contentions of the accused, it is pertinent to note that as per the provisions of section 118(a) and Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 6 of 22 139 of the NI Act, in every case u/s. 138 of NI Act, there is a presumption of law that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability.
15. It is further pertinent to mention the relevant judgments on the point of presumption of existence of legally enforceable debt or liability. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has been held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
16. In the facts of the present case, the signatures on the cheque in question have been admitted by the accused. Accordingly, this court raises presumption u/s. 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
DEFENCE OF THE ACCUSED
17. For the sake of convenience and brevity, the various defences Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 7 of 22 taken by the accused are listed as follows:-
(a) That the present complaint is bad in law as having not been drafted in terms of section 141 of the Negotiable Instruments Act as the cheque in question has been issued by the company M/s Scienceinsteing Edutech Pvt. Ltd. and not by the accused and the company has not been made party.
(b) That the accused has never received the legal demand notice, Ex.CW-1/E from the complainant and hence, the essential ingredients of the offence u/s 138 N.I Act are not made out.
(c) That there is a material alteration in the cheque, and thereby the accused is absolved from liabilities, if any, of the accused towards the complainant in view of the provisions of section 87 of the NI Act.
(d) That he had not taken a loan of Rs.20,00,000/- as stated in the complaint and had only taken a loan in the sum of Rs.8,00,000/-
by way of online transfer and the same has already been repaid.
FIRST DEFENCE
18. The first defence taken by the accused is that the present complaint is bad in law as having not been drafted in terms of section 141 of the Negotiable Instruments Act as the cheque in question has been issued by the company M/s Scienceinsteing Edutech Pvt. Ltd. and not by the accused Deepak Madan and the company has not been made party. Ld. counsel for the accused has further submitted that since this is a plea pertaining to a pure question of law, hence, the same can also be taken for the first time at the stage of final arguments.
19. In support of this plea, Ld. Counsel for the accused has relied on the several judgements of Hon'ble Supreme Court of India and Hon'ble High Courts. Ld. Counsel for accused has submitted Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 8 of 22 that in the judgments relied upon by him, it has been categorically held that when the company, on whose account the cheque has been drawn, is not made an accused, then the complaint under Section 138 N.I. Act is liable to be quashed/ dismissed.
20. Per contra, Ld. Counsel for the Complainant has submitted that the company on whose account the present cheque has been drawn, namely, M/s Scienceinsteing Edutech Pvt. Ltd., has not been made an accused because the complainant did not have any transaction with the said company and all the transactions were with the accused Deepak Madan.
21. Ld. Counsel for the Complainant has further submitted that merely because M/s Scienceinsteing Edutech Pvt. Ltd. is not made as a separate accused in the matter, the same cannot be held to be fatal for the case of the complainant, as Sh. Deepak Madan has been arrayed as an accused in the present matter being the director of M/s Scienceinsteing Edutech Pvt. Ltd. He has thus submitted that there was no requirement to array M/s Scienceinsteing Edutech Pvt. Ltd. as a separate accused in the present matter.
22. I have heard the rival submissions of both the parties on this point, perused the relevant record of the case and gone through the judgments relied upon by Ld. counsels for the parties.
23. In the considered opinion of this court, it is an established law that in a case u/s. 138 NI Act, it is mandatory for the complainant to implead the drawer of the cheque. It is also an established law that when such drawer of the cheque is a juristic entity, i.e., a company, a partnership firm or other association of individuals, then the same has to be arrayed as an accused separately in terms of section 138 NI Act and its directors are to be arrayed in terms of the provisions of section 141 NI Act.
Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 9 of 22
24. In the present matter, bare perusal of the cheque in question, Ex.CW-1/A would reveal that the drawer of the cheque in question is M/s Scienceinsteing Edutech Pvt. Ltd. Further, a bare perusal of the memo of parties would reveal that the said company has not been made an accused in the present matter.
25. In view of the established law and in view of the fact that the drawer of the cheque has not been made an accused in the present matter and also because the present complaint has not been drafted in terms of the provisions of Section 141 N.I. Act, hence, accused Deepak Madan cannot also be held liable in absence of prosecution of the drawer of the cheque.
26. In view of the above discussion, the accused Deepak Madan has successfully been able to prove on the basis of law and the record of the case that he cannot be held liable for the offence u/s. 138 NI Act in respect of the dishonor of the cheque in question as the same has not been issued/drawn by him and the same has been issued/drawn by M/s Scienceinsteing Edutech Pvt. Ltd., who has not been made an accused in the present matter.
SECOND DEFENCE
27. The second defence taken by the accused is that he has never received the legal demand notice, Ex.CW-1/E from the complainant and hence, the essential ingredients of the offence u/s 138 N.I Act are not made out.
28. Ld. Counsel for the accused has submitted that legal demand notice, Ex.CW-1/E, was sent on the incorrect addresses of the accused.
29. Ld. Counsel for the accused has further submitted that the first address allegedly pertains to a company by the name of M/s Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 10 of 22 Scienceinsteing Edutech Pvt. Ltd., i.e., the issuer of the cheque in question and no company master data has been placed on record by the complainant to show that the said address is the registered address of that company. He has further submitted that even as per the tracking reports Ex.CW-1/G (colly), the legal demand notice is undelivered on the first address. He has further submitted that the complainant has not even filed an affidavit to the effect that the legal demand notice was sent on the correct address of the accused.
30. Ld. Counsel for the accused has further submitted that the second address is that of a government quarter which can be allotted only to government officials and it has been admitted by the complainant during his cross-examination that the complainant was earlier a resident of the neighbouring flat bearing no. 53 and at the time when the complainant had shifted from the said flat, the premises at the second address mentioned in the legal demand notice were lying vacant. Ld. counsel for the accused has submitted that the accused has never lived at the second address mentioned in the legal demand notice and that the same does not belong to him.
31. Ld. Counsel for the accused has further drawn the attention of this court towards the fact that the complainant has admitted that he has never verified if the accused lives at the addresses mentioned in the legal demand notice or not.
32. Ld. counsel for the accused has further drawn the attention of this court to the fact that the accused has categorically denied the receipt of the legal demand notice from the complainant in his statement u/s. 313 CrPC and has further stated that the addresses mentioned on the legal demand notice are his incorrect addresses and no proof has been furnished by the complainant for stating that the same are his correct addresses.
Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 11 of 22
33. Ld. counsel for the accused has further submitted that in the complaint the complainant has also stated that the legal demand notice was also sent through WhatsApp and e-mail, however, no proof in this regard has been filed on behalf of the complainant along with the complaint.
34. Ld. counsel for the accused has further submitted that the legal demand notice, Ex.CW-1/E placed on record is an unsigned document and hence, cannot be relied upon by this court. Ld. counsel for the accused has submitted that as accused has never received the legal notice, hence, he has no means of knowing whether the facts mentioned in the notice are true or false, are real or imaginary.
35. Ld. Counsel for the accused in support of his defence has submitted that signature of any document is very vital and absence of signature cannot be considered as a mere technical defect. He has further submitted that without signature the document is incomplete and in the eyes of law may not be a document having legal force. In this regard, reliance has been placed by the accused on several judgments of Hon'ble Supreme Court and Hon'ble High Courts.
36. Per contra, Ld. Counsel for the complainant has submitted that the legal demand notice has been sent on the last known correct addresses of the accused as intimated by him to the complainant and service of legal demand notice is proved from the tracking reports placed on record, i.e., Ex.CW-1/G (colly).
37. Ld. Counsel for the complainant has further submitted that the legal demand notice placed on record is merely an office copy and hence, the same has not been signed. He has further submitted that the duly signed copy was already sent by post to the accused.
38. I have heard the rival submissions of both the parties on this Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 12 of 22 point, perused the relevant record of the case and gone through the judgments relied upon by Ld. counsels for the parties.
39. In regard to the objection taken by Ld. counsel for the accused that the copy of legal demand notice, Ex.CW-1/E placed on record is an unsigned copy, I am in agreement with the submissions made on behalf of the complainant and since the copy of the legal demand notice placed on record is an office copy, hence, the complainant could not have placed on record the duly signed copy of the same.
40. In regard to the defence of the accused that he has not received the legal demand notice from the complainant, perusal of the tracking reports Ex.CW-1/G (colly) reveals that the legal demand notice is undelivered on the first address, however, the same is duly delivered on the second address. Perusal of the cross- examination of the complainant dated 16.12.2021 reveals that specific suggestions have been put to the witness in regard to the addresses of the accused as mentioned in the legal demand notice. The relevant paragraphs of the cross-examination of the complainant dated 16.12.2021 in this regard are as follows:
"It is wrong to suggest that the address mentioned in the legal notice is not that of the accused.
It is correct that I used to reside at flat No. 53, Palika Gram Sarojini Nagar, New Delhi-110023. When I left my residence at flat no. 53, Palika Gram Sarojini Nagar, New Delhi-110023, flat no. 54 was lying vacant. It is correct that I have never met the accused at flat no. 54, Vol. All the meetings took place at flat no. 53 which was my house. I have never verified if the accused used to live at flat no. 54 at the time of sending the legal notice.
It is wrong to suggest that the legal notice has been sent at incorrect address of the accused person merely for the purposes of fulfilling the pre Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 13 of 22 requisite of filing the present case."
41. In regard to this defence of the accused, reliance is placed by this court on the judgment of Hon'ble Supreme Court of India in C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555 and on the judgment of Hon'ble High Court of Delhi in RL Varma & Sons (HUF) vs. P. C. Sharma 2019 SCC OnLine Del 8964, wherein it has been held that there is a legal presumption of service of legal demand notice on the accused as per the provisions of section 27 of the General Clauses Act and section 114 of the Indian Evidence Act, if the same is correctly addressed to the accused.
42. It is to be noted that the company master data pertaining to M/s Scienceinsteing Edutech Pvt. Ltd. has not been filed by the complainant so that it could have been identified that the company's registered address was the first address as mentioned in the legal demand notice. It is further to be noted that the complainant has not been filed an affidavit that the same is the last known correct address of the accused and the basis of knowledge of the same. It has been specifically stated by the accused that the said address is his incorrect address.
43. In regard to the second address, it has been admitted by the complainant that the same was lying vacant at the time that he had left the neighbouring flat, i.e., Flat No. 53 and that he has never verified the said address at the time of sending the legal demand notice to the accused. It is an admitted position between the parties that the premises at the second address mentioned in the legal demand notice could have been allotted only to a government employee and that the accused was not a government employee. In such circumstances, it is beyond the imagination of this court as to how the accused was served with the legal demand notice at an Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 14 of 22 address which was supposedly lying vacant, which could never have been allotted to the accused and which was never verified by the complainant to be an address belonging to the accused.
44. In view of the above-mentioned judgements, it is an established law that the legal presumption pertaining to the service of the legal demand notice is raised only if the same is sent at the correct address of the accused. If the legal demand notice is sent at the incorrect addresses of the accused then the service of legal demand notice is not deemed to be complete and the ingredients of offence u/s. 138 NI Act are not fulfilled.
45. In view of the above discussion, the accused has successfully been able to raise a probable defence that he had not received the legal demand notice and that the same was sent on his incorrect addresses and has also been able to prove his defence on the basis of preponderance of probabilities.
THIRD DEFENCE
46. The third defence taken by the accused is that there is a material alteration in the cheque, and thereby the accused is absolved from liabilities, if any, of the accused towards the complainant in view of the provisions of section 87 of the NI Act.
47. Ld. counsel for the accused has submitted that the date on the cheque in question, i.e., Ex.CW-1/A has been altered by the complainant. He has further submitted that a bare perusal of the date written on the cheque would reveal that the date has been changed from '15-04-2019' to '15-09-2019'.
48. Per contra, Ld. Counsel for the complainant has submitted that there is no alteration on the cheque in question and the same was received in the same condition duly filled by the accused.
49. In regard to the submissions of both the parties, reliance is Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 15 of 22 placed by this court on the provisions of section 87 of the NI Act which reads as follows:
"87. Effect of material alteration.-- Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee.--And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of sections 20, 49, 86 and 125."
50. Although nothing has been brought on record by the accused to suggest that the particulars on the cheque in question have been filled by the complainant, however, even if the same were admitted to be true, then also, it is an established position of law that filling of particulars on a cheque by the complainant is permissible and the same is not barred in view of the provisions of NI Act, particularly, section 20 of NI Act and several judgments of Hon'ble Supreme Court in this regard.
51. What is not permissible as per the provisions of the NI Act is the material alteration on the cheque. In the case at hand, the alteration of the date is apparent on the face of the record. It is apparent that date '15-04-2019' was changed to '15-09-2019'. In my considered opinion, this change of date is a material alteration, because otherwise, the cheque could not have been presented with the bank for encashment by the complainant, being a stale cheque.
52. The primary question to be determined by the court is whether this alteration has been done by the accused or by the complainant.
Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 16 of 22
53. As per paragraph no. 5 of the complaint, the cheque in question was allegedly issued by the accused 2-3 months after the date of last payment, i.e., 04.02.2019. Thus, on the face of it, it appears that the date initially written by the accused on the cheque in question was 15.04.2019. However, it is also stated in the same paragraph that the cheque in question was issued as a post dated cheque by the accused.
54. In the facts of the case and the evidence on record, it cannot be conclusively determined as to who has done the alteration of date on the cheque in question, however, a doubt has been created in the mind of the court that the complainant may have altered the date on the cheque to his benefit, so that he could present the cheque in question with the bank for encashment and so that the same may not be dishonored for the reasons 'cheque is stale'.
55. In view of the above discussion, the accused has successfully been able to raise a probable defence that there is a material alteration on the cheque in question and has also been able to cast a doubt in the mind of the court that the said material alteration may have been done by the complainant himself.
FOURTH DEFENCE
56. The last defence taken by the accused is that he had not taken a loan of Rs.20,00,000/- as stated in the complaint and had only taken a loan in the sum of Rs.8,00,000/- by way of online transfer and the same has already been repaid.
57. Ld. counsel for the accused has submitted that the complainant has not been able to prove the source of funds of the sum of Rs.12,00,000/- allegedly advanced by him to the accused. Ld. counsel for the accused has further submitted that the Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 17 of 22 complainant has taken contradictory stands pertaining to the source of funds of this amount of Rs.12,00,000/-. In this regard, Ld. Counsel for the accused has drawn the attention of this court towards the statements made by the complainant in respect of the alleged source of funds of the sum of Rs.12,00,000/- as follows:
Paragraph no.3 of the evidence by of affidavit of complainant:
"......Complainant paid amount through RTGS Rs. 8,00,000/- in accused's amount and Rs. 12 lacs arranged from relative and paid cash to accused".
Cross-examination of the complainant dated 16.12.2021:
"......I got the money of Rs. 12,00,000/- which I have paid to the accused after selling a plot in my village.
*** At this stage, witness is shown para 3 of the evidence in affidavit of the witness himself wherein he has stated that the amount of Rs. 12,00,000/- has been borrowed from relative and he has been asked why he is lying under oath. The witness has stated that whatever he has stated before this court today is true. All the money received by selling the house was taken by me in cash. The house has been sold by me for Rs. 10,90,000/- in 2017."
58. Ld. Counsel for the accused has further submitted that different versions of the complainant in respect of the source of funds shows that the complainant has not approached the Court with clean hands. He has further submitted that the complainant is a government official and as such when the complainant had given a sum of Rs.8,00,000/- to the accused through account transfer, then he could also give the remaining sum of Rs.12,00,000/- through account transfer.
59. Ld. Counsel for accused has further submitted that the complainant produced illegible copy of his ITR which is Mark CW-
Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 18 of 22 1/X2 and it is an admitted fact that total income in ITR for assessment year is not legible. He has further submitted that the illegible copy has been filed by the complainant only for the purposes of hiding his total income in assessment year 2017-18 and also for hiding the fact that he has not shown his alleged income from the sale of his house in his ITR. He has further submitted that the complainant did not bring his ITR for assessment year 2015-16 and 2016-17 as asked by him during his cross examination dated 16.12.2021 and he did not bring the same on record only for the purposes of hiding his total income in assessment year 2015-16 & 2016-17.
60. Ld. counsel for accused has thus submitted that the complainant has not filed the legible copy of the said ITRs because he had not received any money from the sale of his house/plot and no such sale had taken place. He has further submitted that the complainant has not been able to prove his source of funds pertaining to Rs.12,00,000/-.
61. Per Contra, Ld. counsel for the complainant has submitted that the accused is merely technical pleas to evade his legal liability. He has further submitted that if the accused thought that there are certain discrepancies in the ITR filed by the complainant, then the accused could have summoned the official from the Income Tax Department.
62. Ld. counsel has further submitted that the accused had also issued one other cheque in favour of the complainant placed on record as Ex.CW-1/C for a sum of Rs.12,00,000/- which was dishonored. Ld. counsel has further submitted that although the accused has denied the issuance of the same at every stage of the present proceedings, however, he has himself admitted to the Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 19 of 22 issuance of the same in paragraph 6 of his complaint filed before SHO concerned placed on record as Ex.DW-1/3 (colly).
63. Ld. counsel for the complainant has further relied on the presumption of law as per the provisions of sections 118 and 139 of the NI Act to prove the liability of the accused in respect of the remaining sum of Rs.12,00,000/-.
64. I have heard the rival submissions of both the parties on this point and perused the relevant record of the case.
65. It is mentioned by the complainant in his complaint and his evidence by way of affidavit that he arranged the sum of Rs.12,00,000/- from his relatives. During his cross-examination, the complainant has taken a contradictory stand, wherein he has stated that he had obtained the said sum of money after selling one of his houses. During his cross-examination, the complainant has also indirectly/impliedly admitted that he has not stated true facts in his complaint and evidence affidavit, wherein he has stated that he arranged the said sum of money from his relatives. Admittedly, the said house was only sold for a sum of Rs.10,70,000/- and the said proceeds have also not been shown by the complainant in his ITR.
66. Reliance is placed by this court on the judgment of John K. John vs. Tom Varghese, (2007) 12 SCC 714, whereby the Hon'ble Supreme Court of India has held that advancement of a huge sum of loan without execution of any written documents or without charging any interest is a significant circumstance and is not conducive with the conduct of a reasonable prudent person.
67. In the considered opinion of this court, the complainant has not successfully been able to prove the advancement of the remaining sum of Rs.12,00,000/- to the accused. Admittedly, the complainant has made contradictory statements in regard to his Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 20 of 22 source of funds of the alleged sum of Rs.12,00,000/- and he has also not filed a legible copy of the ITR for the assessment year 2017-18 despite opportunity. Admittedly, the complainant has also not filed his ITRs for the assessment years 2015-16 and 2016-17, apparently, in an attempt to hide his total income for those years. It is astonishing to note that the complainant being a government official himself, has advanced such a huge sum of Rs.12,00,000/- in cash and without execution of any written document/receipt in this regard and against the established law regarding cash transactions, i.e., that there cannot be any cash transaction for a sum more than Rs.20,000/-. In my considered opinion, there is nothing on record to even remotely suggest that the complainant had given an additional sum of Rs.12,00,000/- to the accused as loan in cash.
68. In view of the above discussion, the accused has successfully been able to show on the basis of evidence on record that the accused had not taken a loan of Rs.20,00,000/- as stated in the complaint and had only taken a loan in the sum of Rs.8,00,000/- by way of online transfer and the same has already been repaid.
FINAL ORDER
69. It is also imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
70. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has been able to raise a probable defence and has been able to prove his defence on the basis of preponderance of probabilities that there is Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 21 of 22 no legally enforceable debt or liability in favour of the complainant and against the accused equivalent to the amount of cheque in question as on the date of its drawal or on the date of its presentation. Thus, the accused has been able to rebut the presumption u/s. 118 r/w. section 139 NI Act. Furthermore, the complainant has failed to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question.
71. In view of the aforesaid, accused, namely, Deepak Madan, S/o Sh. Prakash Chander Madan, is hereby acquitted of offence under section 138 Negotiable Instruments Act.
Announced in Open Court (Anshul Singhal) on 08.06.2023 MM(N.I. Act)-03/NDD/RACC/ND
Note: This judgment contains 22 signed pages and each page has been signed by the undersigned.
(Anshul Singhal) MM(N.I. Act)-03/NDD/RACC/ND 08.06.2023 Devender Singh Vs. Deepak Madan CC No.399/2020 Page No. 22 of 22