Delhi District Court
Cc No. 6605/09 Page 1 Of 9 Nirdosh vs . Manish Chaudhary on 27 August, 2010
1
IN THE COURT OF MS. MONA T. KERKETTA, MM (N/E) KKD COURT
DELHI.
CC No. 6605/09
PS. M.S.Park
U/s. 138 NI Act.
1. Date of Institution : 18.04.07
2. Name of the Complainant : Nirdosh Kumar
S/o. Sh. Mange Ram
R/o. H.No. 198/21B,
Shri Ram Nagar, Shahdara, Delhi.
3. Name of accused : Manish Choudhary
S/o. Late Sh. Ratan Singh R/o.
H.No.312, Old Post Office Street,
Chhota Bazar, Shahdara, Delhi.
4. Offence Complained or proved : U/s. 138 Negotiable Instruments
Act.
5. Plea of the accused : Pleaded not guilty.
6. Arguments heard /Order reserved on: 21.08.10
7. Final Order : Acquitted
8. Date of such order : 27.08.10
Brief reasons for the decision of the case.
1. The facts as stated by complainant in his complaint are as follows:
2. It is stated that accused and complainant were having cordial relations with each other and accused had taken a friendly loan of CC No. 6605/09 Page 1 of 9 Nirdosh Vs. Manish Chaudhary 2 Rs.2,50,000/ from the complainant for a period of two months. It is further stated that the accused in discharge of his liability, made part payment of Rs. 24,000/ in cash and issued two cheques bearing no. 375086 dt. 19.11.06 and 375090 dt. 28.08.06 for Rs.1,65,000/ and Rs. 61,000/ respectively drawn on ING Vysya Bank Ltd. West Patel Nagar Branch, New Delhi, in favour of complainant.
3. It is stated that complainant presented cheque no. 375086 dt. 19.11.06 for Rs. 1,65,000/ in question with his banker for encashment, which was returned with the remarks " Funds Insufficient" vide memo Dt. 21.11.06.
4. It is stated that after dishonour of cheque in question complainant informed the accused regarding dishonour of cheque and and demanded cheque amount but accused requested two months time. Again on instruction of accused, complainant presented cheque no. 375090 dt. 28.08.06 for Rs. 61,000/ in question with his banker for encashment, which was returned with the remarks " Account Closed" vide memo Dt.01.01.07. Lastly, Complainant presented both cheques with his banker, which were returned unpaid with the remarks " Account Closed" vide memo dt. 01.03.07
5. The complainant gave a legal notice dt. 06.03.07 to accused in this regard through registered AD and UPC, which was duly served upon accused but he failed to reply the said notice and also failed to pay cheque amount within stipulated period provided under NI Act. Hence, present complaint. CC No. 6605/09 Page 2 of 9 Nirdosh Vs. Manish Chaudhary 3
6. Complainant has prayed for punishing accused for offence U/s. 138 NI Act.
7. On the basis of presummoning evidence, accused was summoned for the offence U/s. 138 N.I. Act by my Ld. Predecessor. Accused put his appearance and notice U/s. 251 Cr.P.C was framed against accused on 24.04.08, to which he pleaded not guilty and claimed trial.
8. Complainant examined himself as CW1 in post notice evidence & thereafter closed his CE. Complainant has relied upon Ex.CW1/A1 affidavit of complainant in post notice evidence, Ex.CW1/A & B cheques in question, Ex.CW1/C & D cheque returning memos, Ex.CW1/E, legal notice & Ex.CW1/F & G Regd. AD and UPC.
9. Statement of accused U/s. 313 Cr.P.C was recorded on 24.02.10. Accused examined Sh. Prakash Sharma as DW1 and thereafter DE was closed.
10. I have heard the arguments addressed by respective counsels and gone through the record.
11. Accused has admitted issuance of cheques in question but has taken the defence that he had taken loan of Rs.35,000/ only, out of which Rs.24,000/ has already been paid & he owes liability only to the extent of CC No. 6605/09 Page 3 of 9 Nirdosh Vs. Manish Chaudhary 4 Rs.11,000/ which he is willing to pay. It is further submitted that cheques in question were blank signed & were issued as security for said loan of Rs. 35,000/. Complainant did not return cheque in question & misused the same by filling a false case against him. Accused has further taken the defence that he was constrained to close his account as the amount written on cheques in question was exorbitant and he owes liability only to the extent of Rs.11,000/.
12. The contention to be decided in the present case is as to whether accused has discharged his liability towards cheque in question as it has not been disputed by accused that cheque in question was dishonoured (admitted so by accused in his statement U/s. 313 Cr.P.C).
13. Counsel for complainant has argued that accused had taken a loan of Rs.2,50,000/ from complainant and that cheques in question were issued by accused in discharge of his liability towards loan. Section 139 NI Act raises a presumption in favour of holder of a cheque that holder of a cheque received the cheque for discharge in whole or part of any debt or other liability. Once issuance of cheque in question is admitted, the burden lies upon accused to rebut presumptions U/s. 139 NI Act.
14. Counsel for complainant has pointed out towards deposition of CW1 & has argued that no suggestion or question was put to the complainant regarding issuance of blank signed cheque or that the particulars of cheques in question were filled by the complainant himself and not by the accused or CC No. 6605/09 Page 4 of 9 Nirdosh Vs. Manish Chaudhary 5 by any other person on behalf of accused, hence accused's claim that cheques in question were blank signed cheques is falsified.
15. Counsel for complainant has further argued that it is further pointed out that accused has admitted part payment of Rs.24,000/ (Twenty Four Thousand) which go on to prove that complainant had given him a loan of Rs.2,50,000/ Moreover, accused has also failed to tell the exact date o which Rs.24,000/ was repaid and there is no witness to said transaction. It is further argued that during the cross examination of CW1 names of some commons friends of complainant and accused came prominently, who were having the knowledge of loan transaction between complainant and accused. But they were not brought in witness box to fortify the claim of accused.
16. Counsel for complainant has further argued that DW1 i.e Sh. Prakash Sharma is an interested witness being a neighbour & having long acquaintance with the accused. Hence, his testimony cannot be relied upon. DW1 has not supported the version of accused in material particulars. Therefore, the case of complainant stands proved.
17. Counsel for accused on the other hand, has argued that accused had taken loan of Rs. 35,000/ only from complainant, out of which he has already paid the amount of Rs.24,000/, which has been admitted by the complainant as well. He he owes liability only to the extent of Rs.11,000/ which he is willing to to pay. It is further argued that complainant has misused CC No. 6605/09 Page 5 of 9 Nirdosh Vs. Manish Chaudhary 6 the blank signed cheque by filling exorbitant amount of Rs.2,50,000/. Accused was compelled to instruct his banker to close the account on the apprehension that his money would be misused.
18. Counsel for accused has pointed out towards testimony of CW1 and has submitted that complainant was never in a position to give such a huge amount of loan. CW1 has deposed that he along with accused used to work together at sethi medical store and they used to drawn salary of Rs.5,000/. He had given loan of Rs.2,50,000/ to accused at once in cash. He arranged the said loan by borrowing some amount from his father, and some some amount from his income and that he had not withdrawn any amount from bank for said loan. Counsel for accused has relied upon a judgment of Hon'ble Supreme Court cited as Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008 (1) LRC 123 (SC) and has submitted that complainant had not been able to show his source of income so as to enable him to advance a huge amount as loan.
19. Counsel for accused has argued that admittedly complainant is not an Income tax assessee. Complainant has violated the provision of S 269 SS of the income tax act. As per section 269 SS any advance taken by way of any loan of more than 20,000/ is to be made by way of an account payee cheuqe only. Counsel for accused has further argued that the proviso appended to section 139 NI Act merely provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. CC No. 6605/09 Page 6 of 9 Nirdosh Vs. Manish Chaudhary 7 Existence of legally recoverable debt is not a matter of presumption U/s 139, NI Act and it merely raises a presumption in favour of a holder of the cheque that the some has been issued for discharge of any debt or other liability.
20. Counsel for accused has further cited two more judgments reported as Nanjundappa Vs. Hanumant Harayappa (Crl. Appeal No.9 of 2001) & Wangyuth Konyak Vs. M/s. Yadav Sales Crl Misc No48775M of 2007 and has submitted that the case of complainant is not maintainable.
21. It is submitted that cheque in question bearing no. 375090 was dishonoured for the first time with bank endorsement of 'Account closed'. It was again presented & dishonoured with same endorsement. Complaint filed after second dishonour of cheque, was barred by limitation. Cheuqe bearing no.375990 dated 28.08.10 was not presented to collecting bank within its validity period. Cheque reached to drawee bank when validity of cheque had expired. A cheque must be presented to the drawee bank within the period of its validity. In these circumstances, no case is made out against accused & he is not liable U/s 138 of NI Act.
22. Counsel for complainant, to counter this argument has relied upon number of judgments reported as 2005 (1), Civil Court cases 690(SC), 1999 (1) Civil Court cases 674 (AP), 2008 (1) CCC 58 (Delhi) 2005 (2), criminal court cases 596(P&H),1999 (2) CCC 459 (Calcutta) and has submitted that it is not necessary that bank account should be alive at the time of CC No. 6605/09 Page 7 of 9 Nirdosh Vs. Manish Chaudhary 8 presentation of cheque.
23. I have gone through judgments & heard the arguments of respective counsels.
24. I find force in the submission of counsel for accused that cheque bearing no.375090 dt. 28.08.10 was to be presented again within its validity period. I find that cheque bearing no.375090 dt. 28.08.10 was to be presented again within its validity period. I find that the said cheque was to be presented before the drawee bank by 27.02.06. By the time the collecting bank sent the cheque to drawee bank Oriental Bank of Commerce, Shahdara, i.e banker of accused, the cheque had become outdated. Hence, the non presentation of cheque no. 375090 to the drawee within the validity period would absolve the accused of his criminal liability U/s 138 NI Act. Though, cheque No375086, dt. 19.11.06 was again presented within its validity period. But, I again find force in the submission of accused that the amount written on the said cheque was exorbitant for which he was not liable to pay. He was constraint to close his account so that his money might not be misused by the complainant. Moreover, in case of 'Account Closed' the question of successive presentation makes no sense because the account itself is not in existence, there is no possibility of getting fruitful result by successive presentation unlike in the case of 'INSUFFICIENCY OF FUNDS'. Therefore, whenever the cheuqe is dishonoured on the ground of account closed, the payee cannot resort to successive presentation to save the limitation as held in NANJUNDAPPA V. CC No. 6605/09 Page 8 of 9 Nirdosh Vs. Manish Chaudhary 9 HANUMANTHARAYAPA(Supra).
25. Similarly in the backdrop of the facts & circumstances of the case, the deposition of CW1 is relevant. It is admitted by complainant that no one was present at the time of giving loan to accused. He did not issue any receipt with respect to said payment. It is also admitted that he had given loan of Rs.2,50,000/ at once in cash but had not withdrawn any amount from bank for said loan. Complainant did not produce any written document or any other proof to show that how he got so much money for loan. He accepted that there was no witness to the transaction. All aforesaid facts go on to falsify the complainant's claim that loan of Rs.2,50,000/ was given to the accused. It seems impracticable & unreasonable that such a huge amount would be disbursed without executing any written documents. Moreover, complainant has violated the provision of S269 SS of the income tax act.
26. For the foregoing reasons discussed in preceding paras, the benefit should go to accused. In view of contention raised on behalf of accused, case of complainant is demolished & presumptions U/s 139 of the NI Act stands successfully rebutted. Accused is acquitted of the offence U/s. 138 NI Act. Personal bond and surety bond of accused furnished at the time of court bail shall be in force for six months from today, as per provision U/s. 437 A Cr.P.C. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN
COURT ON 27.08.10 (MONA T. KERKETTA)
MM/(NE)/KKD/DELHI/27.08.10
CC No. 6605/09 Page 9 of 9 Nirdosh Vs. Manish Chaudhary