Delhi District Court
1. Kundan Lal Rallaram vs . The Custodian, Evacuee Property ... on 13 August, 2020
IN THE COURT OF MS. NEHA PANDEY,
M.M., N.I. ACT-03, WEST, TIS HAZARI COURTS, DELHI
C.C. No. 548/16
Mr. Aditi Gupta (Minor),
D/o Mr. Rajesh Gupta,
R/o D-9, Rajouri Garden,
New Delhi-110027
Through her father and natural
guardian Mr. Rajesh Gupta.
...........Complainant
vs.
Mr. Alok Gupta
S/o Late Sh. Sant Raj Gupta,
R/o J-107, Rajouri Garden,
New Delhi-110027.
.......Accused
Date of Institution : 14.03.2016
Offence complained of : u/s 138 N.I. Act
Date of final arguments: 06.03.2020
Date of decision : 13.08.2020
Decision : Acquitted.
JUDGMENT:
Vide this judgement, I shall dispose the present complaint filed under Section 138 N.I. Act against the accused. Before going further, it is necessary to dwell upon the brief facts of the case.
Brief facts:
2. The present complaint has been filed by Aditi Gupta minor through her father Sh. Rajesh Gupta who is the natural guardian of the complainant and is well conversant with the facts of the case. It has been stated in the present complaint that Alok Gupta was in need of money and requested the father of the complainant for a loan of Rs. 30 Lac which was granted to the accused considering long family relationship and friendship.C.C. No. 548/16 Dated: 13.08.2020 Page 1 of 11
The said loan of Rs. 30 Lac was granted by way of six cheques which are in following manner.
a. A/c payee two cheque no. 000001 dated 09.01.2014 of Rs. 5 Lac and cheque no. 000004 dated 10.01.2014 for Rs. 5 Lac (Total Rs. 10 Lac) issued by Ms. Neena Gupta W/o Sh. Rajesh Gupta in favour of the accused from her savings bank account drawn on HDFC Bank, Rajouri Garden, New Delhi-110027.
b. A/c payee two cheque no. 000001 dated 09.01.2014 of Rs. 5 Lac and cheque no. 000002 dated 10.01.2014 for Rs. 5 Lac (Total Rs. 10 Lac) issued from the bank account of Aditi Gupta represented through her father/natural guardian Mr. Rajesh Gupta in favour of the accused from her savings bank account drawn on HDFC Bank, Rajouri Garden, New Delhi-110027.
c. A/c payee two cheque no. 000002 dated 09.01.2014 of Rs. 5 Lac and cheque no. 000004 dated 10.01.2014 for Rs. 5 Lac (Total Rs. 10 Lac) issued from the bank account of Master Shravil Gupta represented through his father/natural guardian Mr. Rajesh Gupta in favour of the accused from his savings bank account drawn on HDFC Bank, Rajouri Garden, New Delhi-110027.
3. The accused presented all the aforesaid six cheques which was credited in his bank account on 12/13.01.2014 and he promised to return the said amount free of interest within a short span of five to six months but he failed to return the same and after a lot of deliberation and persuasion for almost one year, the accused agreed to pay the said loan amount and issued following six cheques:-
a. A/c payee cheque no. 855579 and 855580 of Rs. 5,00,000/- each both dated 15.08.2015 drawn on State Bank of India, Rajouri Garden, new Delhi in favour of Smt. Neena Gupta W/o of Mr. Rajesh Gupta.
b. A/c payee cheque no. 855581 and 855582 of Rs. 5,00,000/- each both dated 15.08.2015 drawn on State Bank of India, Rajouri Garden, new Delhi in favour of Ms. Aditi Gupta.
c. A/c payee cheque no. 855583 and 855584 of Rs. 5,00,000/- each both dated 15.08.2015 drawn on State Bank of India, Rajouri Garden, new Delhi in favour of Master Shravil Gupta.C.C. No. 548/16 Dated: 13.08.2020 Page 2 of 11
4. It is further the case of the complainant that all the six cheques were presented for encashment which got dishonoured vide returning memo dated 12.11.2015 with endorsement 'insufficient Funds' and the same was intimated to the accused who requested for some more time and promised that he will pay the interest @ 10 % on the said amount from January, 2014 i.e. from the date when cheques of Rs. 30 Lac were originally issued by the complainant in favour of the accused. Further, it has been stated that the accused towards repayment of the said loan amount alongwith amount of Rs.3 Lac as interest issued two cheques one in the name of the present complainant Ms. Aditi Gupta bearing no. 029594 dated 31.12.2015 for an amount of Rs. 18 Lac which is Ex. CW-1/4 i.e. the cheque in question and another cheque in the name of Ms.Neena Gupta bearing no. 029595 dated 31.12.2015 for Rs. 15 Lac. The cheque in question Ex. CW-1/4 was presented for encashment but the same was dishonoured with the remarks 'Insufficient Funds' vide returning memo dated 27.01.2016 which is Ex. CW-1/5. It is the case of the complainant that despite reminders by Mr. Rajesh Gupta, father of the complainant, the accused failed to make the payment of the cheque in question and thus, a legal notice dated 10.02.2016 Ex. CW-1/6 was issued to the accused which was duly served upon him by registered post and the accused also filed a written reply to the said notice disputing the liability towards the complainant vide letter dated 22.02.2016 which is Ex. CW-1/7 (OSR). The accused failed to make the payment and hence, the present complaint.
5. Present complaint was filed on 14.03.2016. The cognizance in the present complaint was taken against the accused by this court vide order dated 04.04.2016, the accused entered his appearance on 30.01.2017. The Notice u/s 251 Cr.P.C against accused was framed on 30.01.2017 itself wherein, the accused denied any liability against the cheque in question and stated to have made the payment to the complainant through her father C.C. No. 548/16 Dated: 13.08.2020 Page 3 of 11 against the cheque in question which was given as a security and is without consideration. The legal demand notice is stated to be illegal and invalid as in spite of the payment, the father of the complainant did not return the cheque and assured the accused that the same is not traceable and will never be presented for encashment.
6. Accused filed an application under Section 145(2) N.I. Act which was allowed by the court on no objection on behalf of complainant vide order dated 02.05.2017 and the accused was granted opportunity to cross-examine the complainant. In the present complaint, the complainant examined himself as CW-1 and closed his evidence vide separate statement on 18.12.2017. Statement of accused under Section 313 Cr.PC was recorded on 17.07.2018 and in defence, the accused examined himself as DW-1 in his defence and closed his evidence vide separate statement on 02.09.2019.
7. After conclusion of trial, final argument were addressed by Ld. Counsels for the parties which are as under:
8. Ld. Counsel for the complainant submitted that the accused shared friendly business relations with the father of the complainant Rajesh Gupta and the loan amount of Rs. 30 Lac was paid in part by the father of the complainant and the six cheques issued by the accused in discharge of liability were dishonoured for the reasons 'Insufficient Funds' on 12.11.2015. It has been further submitted by Ld. Counsel that payment of Rs. 30 Lac given by the accused into the bank account of complainant's father Mr.Rajesh Gupta was in lieu of separate transaction and does not pertain to the present case. Further, it has been submitted that the accused has made contradictory statement in his cross-examination wherein at one point of time, he stated to have given one blank cheque to complainant's father but in later point of time in cross-examination, he stated to have given eight security cheques to the complainant's father. He further submitted that the RTGS of Rs. 30 Lac has C.C. No. 548/16 Dated: 13.08.2020 Page 4 of 11 been made after the dishonour of the cheque and thus, the liability on the date of presentation of the cheque in question clearly stood against the accused. The defence put forward by the accused is totally false. Thus, it has been prayed that since accused had not led any probable defence in the present matter to rebut the presumption under Section 139 N.I. Act and thus, he should be convicted for under Section 138 N.I. Act.
9. Contrary to this, it has been argued by Ld. Defence counsel that the complainant has failed to prove his case and he has also failed to prove that amount of Rs. 30 Lac received into the bank account of father of the complainant did not pertain to the transaction in question but a different transaction. It is further submitted that photocopy of cheque Mark-A and Mark-B being brought on record during the cross-examination of the accused are inadmissible as no permission for secondary evidence was taken from the court and also the complainant has failed to explain the circumstances under which the cheques Mark-A and B were actually issued by the accused. It has been further submitted that the complainant suggested during the cross- examination of the accused that there was separate loan of Rs. 50 Lac given to the accused but the same has not been proved by the complainant and payment of Rs. 30 Lac was part payment of that Rs. 50 Lac loan and thus, the accused should be acquitted in the present matter.
In support of the case of the accused, Ld. Counsel for the accused has cited following judgments:-
1. Kundan Lal Rallaram vs. The custodian, Evacuee Property Bombay reported as AIR 1961 SC 1316;
2. Sanjay Mishra vs. Ms. Kanishka Kapoor @ Nikki and Anr. Reported as 2009 CRI. L.J. 3777;
3. G. Veeresham vs. S. Shiva Shankar & Ann. Reported as 2007 SCC Online AP 975 : 2007 Cri LJ 3846: (2007) 59 AIC 676 (AP): (2008) 1 BC 3: (2008) 1 CCC 361 : (2007) 3 ALT (Cri.) 38 : (2007) 2 ALD (Cri) 420 and C.C. No. 548/16 Dated: 13.08.2020 Page 5 of 11
4. M.S. Narayana Menon Alias Mani vs. State of Kerala & Another reported as (2006) 6 Supreme Court Cases 39 The Law:
10. Before proceeding to the merits of the case, it is considered important to lay down the basic provisions of law with respect to section 138 of the Act which are as follows:-
11. Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that "where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both".
12. Careful reading of section 138 of the Act reflects that there are three key ingredients which need to exist for there to be an offence under section 138 Negotiable Instruments Act, 1881. The three ingredients for requirements of section 138 are as follows :
(i) There is a legally enforceable debt.
(ii) The drawer of the cheque issued the cheque to satisfy part or whole of the
debt.
(iii) The cheque so issued has been returned due to insufficiency of funds.
13. It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/ prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences under section C.C. No. 548/16 Dated: 13.08.2020 Page 6 of 11 138 of the Act, there is a reverse onus clause contained in sections 118 and 139 of the Act.
14. Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
15. Further, Section 139 of the Act lays down that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
16. Thus, section 139 of the Act puts the burden on the accused to prove his defence. However, the accused has to prove his defence on the balance of probabilities and not beyond reasonable doubt. Once the presumption is displaced, the accused is liable to be acquitted.
Point of consideration: Whether the cheques in question Ex. CW-1/4 issued by the accused in discharge of his legal liability in favour of complainant?
Findings:
17. In the present matter, in order to answer the above said question, the court has to see whether the accused has succeeded in rebutting the presumption raised against him under section 139 r/w 118 NI Act or not. and for this inquiry, it is important to go through the examination of CW-1 and the DW-1.
18. The complainant's father Mr.Rajesh Gupta being natural guardian of the complainant examined himself as CW-1 and adopted his pre- summoning affidavit Ex.CW-1/A in his examination-in-chief and relied upon the documents Ex.CW-1/1 to Ex. CW-1/7.
C.C. No. 548/16 Dated: 13.08.2020 Page 7 of 1119. During the cross-examination by Ld. Defence counsel, CW-1 complainant admitted the transfer of Rs. 30 Lac into his bank account maintained with HDFC Bank, Rajouri Garden on 12.11.2015 but he voluntarily stated that the said amount was transferred in respect of some other transaction. He further admitted that an amount of Rs. 2.5 Lac was also transferred by the accused into the bank account of his elder brother Mr.Deepak Kumar Gupta on 17.11.2015 and he again voluntarily stated that the said amount was transferred on account of some separate transaction of the accused with his elder brother Deepak Gupta. He denied the suggestion of defence counsel that the above said payment of Rs. 32.5 Lac i.e. consideration pleaded in the present case and the other case bearing CC No. 547/16 filed against the accused by Rajesh Gupta stood paid even prior to the filing and issuance of legal demand notice. He denied the suggestion that he ever stated to the accused that the security cheques given by the accused being not traceable. He admitted of receiving a written reply dated 22.02.2016 on behalf of accused to his legal demand notice dated 10.02.2016. He further denied the suggestion of defence counsel that the content of the cheque in question was filled not in handwriting of the accused but by some other person on his asking. No other witness was examined by the complainant.
20. The statement of the accused u/s 313 Cr.PC was recorded wherein he denied the case of the complainant and reiterated the same defence as stated by him in his defence to notice under Section 251 Cr.PC. He admitted to have taken loan of Rs. 33 Lac from complainant's father and issuing security cheques for the same. He admitted the dishonour of cheque in question but stated that payment was already being made to Rajesh Gupta. He admitted of receiving legal demand notice from the complainant and stated to have replied the same. In his defence, he further stated to have returned total Rs. 33 Lac to father of the complainant by way of C.C. No. 548/16 Dated: 13.08.2020 Page 8 of 11 bank transaction i.e. Rs. 30 Lac into the bank account of Rs. Rajesh Gupta, Rs.2.5 Lac into the bank account of his elder brother Deepak Gupta and Rs.50,000/- in cash to Rajesh Gupta. He further stated that Rajesh Gupta did not return the cheque in question stating the same being not traceable and assured not to misuse the same.
21. In defence, the accused examined himself as DW-1. He stated in his examination-in-chief on oath to have made the entire payment into the bank account of her father CW-1 Rajesh Gupta in the same manner as discussed above herein. He further stated to have no other dealing with Rajesh Gupta or other family member. He further stated that cheques given to the complainant's father CW-1 were given as security and the same have been misused by him even after receiving the payment alongwith interest and the present complaint is totally false and baseless to extract illegal money from him.
In cross-examination by Ld. Counsel for the complainant, the accused admitted of issuing six cheques bearing no. 855579 to 855584 all dated 15.08.2015 in favour of Mrs. Neena Gupta, Aditi Gupta(the complainant herein) and Master Shravil Gupta for a repayment of Rs. 30 Lac. He also admitted the dishonour of said six cheques. He denied issuance of the cheque in question in favour of the complainant and voluntarily stated to have given eight blank cheques as security at the time of obtaining the loan in the year 2014. He further stated that in the year 2015 on the same day of dishonour of said six cheques, issued by him he paid the said amount of Rs. 30 Lac into the bank account of Mr. Rajesh Gupta and additional Rs. 3 Lac as interest. He denied issuing cheque in question in favour of the complainant. He further denied issuing the cheque bearing no. 855590 and 855592 both dated 30.10.2015 Mark-A and Mark-B respectively in favour of complainant's father CW-1. Though he admitted his signatures on cheques Mark-A and Mark-B but denied C.C. No. 548/16 Dated: 13.08.2020 Page 9 of 11 filling the contents of the same. The accused denied the suggestion of the complainant's counsel of taking a loan of Rs.50 Lac from Rajesh Gupta CW-1 and also denied making a payment of Rs.30 Lac to HDFC Bank towards part payment of the said amount into the bank account of Rajesh Gupta. He further denied that RTGS of Rs. 5 Lac from the bank account of Shrijee sarees i.e. the firm of his wife Nisha Gupta was also made towards further part payment of Rs. 50 Lac loan. No other witness was examined by the accused.
22. From the above testimony of CW-1 and DW-1, the signature of accused on the cheque in question and the accused being drawer of cheque is not disputed. It is the defence of the accused that the cheque in question was issued to the complainant through his father Rajesh Gupta/CW-1. The accused since beginning has admitted of receiving loan of Rs. 30 Lac from Rajesh Gupta CW-1 but he also stated to have repaid the same with interest in the manner disclosed above. CW-1 in his cross-examination also admitted of receiving the loan amount of Rs. 30 Lac in his bank account and also receiving Rs.2.5 Lac into the bank account of his elder brother but it has been stated by CW-1 that the said payment of Rs. 30 Lac was not in lieu of loan in question rather same was in lieu of separate transaction. The said separate transaction was not disclosed by CW-1 in his affidavit or during his cross-examination. It is only during the cross-examination of the accused, it was suggested by complainant's counsel that payment of Rs. 30 Lac was towards part payment of separate Rs. 50 Lac loan taken by the accused from CW-1. The said suggestion was denied by DW-1 and to prove the separate loan transaction of Rs. 50 Lac, the complainant has failed to bring on record any documentary or oral evidence which throws doubt on the story of the complainant. The story of the complainant also appears doubtful as in the original complaint and the affidavit of CW-1 it has been stated that six C.C. No. 548/16 Dated: 13.08.2020 Page 10 of 11 cheques issued by the accused bearing cheque nos. 855579 to 855584 were dishonoured vide returning memo dated 12.11.2015 and admittedly on same day, payment of Rs. 30 Lac i.e. total of six cheques was made into the bank account of CW-1 Mr.Rajesh Gupta and the same as discussed above already being admitted by CW-1. Payment of Rs. 30 Lac on same day as dishonour of cheque of accused, makes the defence of accused probable that the said payment was in lieu of repayment of loan in question only. The complainant has failed to prove otherwise. Mere suggestion by complainant's counsel that Rs. 30 Lac payment was part payment of Rs. 50 Lac loan in absence of any evidence to corroborate the same does not inspire the confidence of this court. The minor contradiction into the defence of the accused of issuing the number of security cheques does not come to the rescue of the complainant as the story of the complainant fails to stand on its own foot. The accused since beginning from the time of written reply dated 22.02.2016 has taken the same stand of repayment of the loan to CW-1 and the said defence appears probable to the mind of this court in absence of any oral or documentary evidence produced on behalf of the complainant to corroborate the present case.
23. Accordingly, from the above discussion, the complainant has miserably failed to establish the legal debt of Rs.30 Lac against the accused and has also failed to establish the issuance of the cheque in question by the accused towards discharge of said legal liability. The accused has succeeded in rebutting the presumption under Section 139 r/w Section 118 N.I. Act. Accordingly, the accused stands acquitted for the offence under Section 138 N.I. Act in the present matter. Digitally signed by NEHA NEHA PANDEY ANNOUNCED IN THE OPEN PANDEY Date:
2020.08.14 COURT ON 13.08.2020. 14:43:48 +0530 NEHA PANDEY MM, NI ACT, WEST-03 TIS HAZARI COURTS, DELHI.C.C. No. 548/16 Dated: 13.08.2020 Page 11 of 11