Delhi District Court
Page No. 1 To 10 Kishan Lal vs . Madan Moha & Co. on 14 October, 2014
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 261/12
b. Date of the commission of the offence : 19/11/2012
c. Name of the Complainant : Kishan Lal
d. Name of Accused person and his parentage: Madan Mohan,
and residence S/o Late Sh. Jambu Prasad,
R/o I139, Ashok Vihar, PhaseI, Delhi.
e. Offence complained of : Dishonouring of cheque for
"Stop payment".
f. Plea of the Accused and his examination (if any): Not guilty
because the loan amount
has already been repaid.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 09.10.2014.
i. Order pronounced on : 14.10.2014.
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Brief reasons for decision:
1. Brief facts necessary for the disposal of this case are that on
15.12.2012, a complaint was filed by the Sh. Kishan Lal, Complainant, under
section 138 of the Negotiable Instruments Act (NI Act) read with section 420 of
the Indian Penal Code, whereby cognizance was taken for the offence under
section 138 of the NI Act on 17.12.2012 and the proprietor of the accused firm,
namely Madan Mohan (hereinafter referred to as the Accused) was summoned
before this Court.
2. It has been alleged in the Complaint and presummoning evidence by
way of Affidavit (Ex. CW1/A) that on account of their friendly relations, the
Complainant advanced a loan of Rs.1,00,000/ to the Accused on 17.10.2003 at
his home on interest @ 15% per annum through cheque drawn on Vaish Co
operative Bank, Shahdara. It is also stated that against this liability, the Accused
gave a postdated cheque of his firm bearing on 151087 dt.17.10.2012 drawn on
State Bank of Hyderabad, Chandni Chowk Branch, Delhi (Ex.CW1/1). It is further
alleged that the Accused issued one more post dated cheque of Rs.1,00,000/ dt.
06.11.2012 (Ex. CW1/2) to the Complainant against Additional Loan received by
the Accused. It is thereafter stated that the Accused continued to pay the interest
amount to the Complainant but when Complainant demanded his due amount
back, the Accused issued a postdated cheque of his firm bearing on 151087, dt.
17.10.2012, drawn on State Bank of Hyderabad, Chandni Chowk Branch, Delhi,
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in favour of the Complainant. When the said cheque was presented for payment
by the Complainant to his Banker i.e. Tamilnad Mercantile Bank Ltd., Shahdara
Branch, the same was returned unpaid with the remarks "stop payment" on
18.10.2012 (Ex.CW1/3). The Complainant further states that he approached the
Accused various times for making payment but the Accused refused to give any
amount and then the Complainant got legal notice (Ex. CW1/4) issued upon the
accused on 03.11.2012 by Speed Post receipt no.ED348206112IN (Ex. CW1/5),
to which a reply was also sent by the Accused which is Ex. CW1/6. It is
submitted that the Accused has not made any payment to the Complainant
against the cheque in question. Hence, the present complaint has been filed.
3. Notice was framed against the accused under Section 138 NI Act on
28.05.2013, to which he pleaded not guilty and claimed trial. Plea of Defence of
the accused was also recorded on the same day wherein it has been stated by
the accused that though the Cheque in question bears his signature and account
number, he did not fill any of the contents appearing on the cheque in question.
However, he admitted to handing over of the blank signed cheque in question to
the Complainant. He further stated that he had taken a loan of Rs.1,00,000/ from
the Complainant in 2003 through a cheque which was repaid by him to the
Complainant in 2012 through cheque and also that the he had paid due monthly
interest till 2012 to the Complainant in cash. He admitted to receiving of the legal
demand notice issued by the Complainant and also that he replied to the same.
4. To prove his case, the Complainant tendered his fresh evidence by
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way of affidavit Ex. CW1/X and examined himself as CW1. On an application of
the accused under section 145(2) of the NI Act, the accused was given an
opportunity to crossexamine the Complainant. Thereafter, CE was closed.
However, it is pertinent to note here that major alterations and additions have
been made by the Complainant in his second affidavit Ex. CW1/X as compared
to his first affidavit Ex. CW1/A as well as his complaint and the same have been
elucidated in the following paragraphs.
4.1. In his Affidavit Ex. CW1/A, the Complainant has stated that he had
advanced the a loan of Rs.1,00,000/ to the Accused through a cheque drawn on
Vaish Cooperative Bank on 17.10.2003 at his home, while in his second affidavit
Ex. CW1/X, the Complainant has stated that he had advanced loan of Rs.
1,00,000/ to the Accused through cheque drawn on Vaish Cooperative Bank as
well as cash of Rs.1,00,000/ but the date of advancement of loan and the place
of advancement of loan has been conveniently omitted by the Complainant.
Moreover, confusion is created in the version put forth by the Complainant in his
second affidavit on account of the ambiguous wording of the same which is
apparent on bare reading.
4.2 Moreover, while in Ex. CW1/A the Complainant has stated that
against his due liability, the Accused handed over a post dated cheque in
question bearing number 151087 dt. 17.10.2012 drawn on State Bank of
Hyderabad, Chandni Chowk Branch, Delhi; in his affidavit Ex. CW1/X, the
Complainant has changed the date of this cheque as 06.11.2012. However, in
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both the affidavits, the cheque has been exhibited as Ex. CW1/1. On perusal of
the cheque, it is revealed that the same is dated 17.10.2012. Hence, in his post
summoning affidavit, the Complainant has wrongly deposed with respect to the
date on the cheque in question.
4.3 Moving further, the Complainant has stated in Ex. CW1/A that when
he presented the cheque bearing number 151087 dt. 17.10.2012 to his Bank for
payment, the same was dishonoured with the remarks "stop payment" for which
the return memo is Ex. CW1/3 dt. 18.10.2012. On the other hand, in his second
affidavit Ex. CW1/X, the Complainant has stated that he presented cheque
bearing number 151088 dt. 06.11.2012 to his Bank which was returned unpaid
vide return memo Ex. CW1/2 dt. 09.01.2013. On perusal of record, it is apparent
that the return memo placed on the file pertains to cheque no. 151087 and is
dated 18.10.2012.
4.4. In Ex.CW1/A, the legal demand notice dt. 03.11.2012 has been
exhibited as Ex. CW1/4 while in the Ex. CW1/X, the legal demand notice dt.
07.02.2013 has been exhibited as Ex. CW1/3. The legal notice exhibited on
record is dated 03.11.2012 wherein reference to cheque in question has been
made.
4.5. In rest of the paragraph8 of Ex.CW1/X, the Exhibit numbers of the
other documents have been changed to the effect that the postal receipt of speed
post is now exhibited as Ex. CW1/4 and the reply to the legal demand notice sent
by the Accused is exhibited as Ex. CW1/5.
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4.6. Needless to say that the Complainant has at the very outset rendered
his case weak by bringing to his own peril a fresh affidavit in his post summoning
evidence which questions the sanctity of the very complaint case as filed by the
Complainant.
5. Statement of the accused was recorded under Section 313 Cr.P.C
on 11.10.2013, wherein the accused reiterated his plea of defence with some
contradictions. Deviating from his plea of defence, the Accused stated that he
had handed over the cheque in question to some Om Prakash, employee of the
Complainant. He further added that he had taken Rs.1,00,000/ from the
Complainant in cash and had repaid the same in installments.
6. In order to prove his innocence, the accused examined two
witnesses i.e. DW1 Accused himself and DW2 Sh. Arun Aggarwal, Son of the
accused.
7. I have heard the arguments of both the parties at length and have
gone through the entire record carefully.
8. An analysis of the crossexamination of the Complainant becomes
relevant here as to determine the credibility of the case put forth by him
especially in the light of the fact that two contradictory affidavits have been
tendered by him in his presummoning and postsummoning evidence
respectively. However, even in his crossexamination the complainant has taken
different stands pertaining to the amount of loan, the mode of advancement of
loan, the liability with respect to which the cheque in question was handed over,
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etc. The complainant has stated in his crossexamination that:
I advanced loan in question of Rs. 3 lacs by way of three
cheques of Rs.1,00,000/ each in year 2012. I had also paid Rs.
1,00,000/ in cash to the accused in 2/3 installments.
However, neither in his complaint nor in his affidavit the complainant has
mentioned the amount of loan in question to be Rs. 3 lacs. To make the matter
further beyond comprehension, the Complainant has stated that:
I had paid Rs. 1,00,000/ through cheque on 20.10.2003 and
Rs. 1,00,000/ through another cheque on 07.12.2006.
.......
I had further paid Rs. 1,00,000/ in cash 78 months before issuance of cheque bearing number 151086. Aforesaid cheque bearing number 151086 was given to me by the accused before 78 months from 27.09.2012. I had encashed aforesaid cheque on 27.09.2012.
......
I cannot tell regarding which aforesaid loan accused had issued cheque in question in my favour. Vol. Accused used to take his previous cheque back from me after issuing fresh cheque in my favour at interval of 4 months.
9. By careful perusal of above extracts from the testimony of the Page No. 7 To 10 Kishan Lal Vs. Madan Moha & Co.
8Complainant, it is without any doubt that the complainant has been unable to inspire confidence of the Court in his Complaint filed before the Court against the Accused. Even though the Complainant claims to be regularly lending money to the Accused and also that he has been financing his day to day expenses out of the interest income from the said loans, he is unable to figure out the loan transaction with respect to which the cheque in question had been issued to him. He has further been unable to prove the date of the transaction in question or the transaction itself pertaining to which the loan has been stated to have been advanced.
10. Even though the cheque in question has been admitted by the Accused as well as handing over of the same to the Complainant in blank signed form, the due liability, if any, has been denied by the Accused. Any presumptions in law, arising against the Accused under section 118 and 139 of the NI Act have been sufficiently rebutted by the Accused by conducting the crossexamination of the Complainant which has made the version of the Complainant unbelievable, the testimony of the Complainant unreliable and the damage caused to the complaint case unfathomable. In these circumstances it would be unnecessary and unwarranted to get into the details of the defence evidence in order to determine whether the case of the Complainant has been sufficiently rebutted or not. However, on scrutiny of defence evidence, it is apparent that the Accused has taken a stand consistently that he has already repaid the entire due amount and that nothing more remains to be paid by the Accused to the Complainant.
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9Moreover, as per his own testimony, the Complainant has himself submitted that various loan transactions were entered into between him and the Accused and that the Accused had also paid back the loan amount of some transactions. In view of the above discussion, the defence taken by the Accused indeed becomes reasonably probable though the same does not stand proved.
11. At this juncture it is relevant to make a note of the recent decision of the Hon'ble Supreme Court of India in case titled as Vijay vs. Laxman & Anr. [(2013)3SCC 86] wherein it has been held that:
We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted.
12. Further, it has been held by the Hon'ble Apex Court in the case titled Hiten P. Dalal vs. Bratindranath Banerjee [AIR 2001 SC 3897] that: In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes Page No. 9 To 10 Kishan Lal Vs. Madan Moha & Co.
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it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
13. For the forgoing reasons, perusal of record and scrutiny of the testimonies of the parties, the Accused is hereby acquitted of the offence under section 138 of NI Act.
Announced in the open court (VIDHI GUPTA)
on 14 Day of October, 2014.
th
MM/KKD/Delhi
This judgment contains 10 signed pages.
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