Delhi District Court
Sanjeev Kochar vs . Brijesh Sharma on 4 July, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
SANJEEV KOCHAR VS. BRIJESH SHARMA
CC NO. 461188/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 461188/2016
(2) Name of the complainant : Sanjeev Kochar,
s/o Sh. Sudesh Kumar,
Shop No. 1, Ground Floor, C-70,
Malviya Nagar, New Delhi-17
(3) Name of the accused, : Brijesh Sharma,
parentage & address S/o Sh. Bhoodutt Sharma,
R/o H.No. 365, Vijaya Laxmi
Apartment, Durga Ashram
Road, Chatarpur, New Delhi
Also At:-
Brijesh Sharma,
Atithi Fast Food Stall/Kiosk No.
51 Opposite Moti Restaurant
and Apollo Pharmacy, Malviya
Nagar Main Market, New Delhi-
17
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTION
(7) Date of Institution : 23.05.2016
(8) Date on which reserved for
judgment : 23.06.2018
Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016
Page 1 of 13
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(9) Date of Judgment : 04.07.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that complainant had given loan of Rs. 4 lacs to the accused by way of cash in first week of June 2016 on the assurance of accused to repay the same within 03 months. Accordingly, in discharge of his legal liability of debt issued a cheque bearing no. 878101 dated 06.04.2016 for a sum of Rs. 4,00,000/- drawn on Syndicate Bank, Malviya Nagar, New Delhi-17 in favour of the complainant which on presentation was returned unpaid with the remarks " Funds Insufficient" vide returning memo dated 08.04.16. Thereafter, complainant issued a statutory notice dated 15.04.16 through speed post to the accused calling upon to pay the amount of the aforesaid cheque within the period stipulated in the notice. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/A was filed by the complainant. In his affidavit of evidence Ex. CW-1/A and relied on documents are original cheque in question Ex. CW-1/1, Its return memo Ex. CW-1/2, Office copy of legal notice Ex. CW-1/3, speed post receipts are Ex. CW-1/4 and Ex. CW-1/5, tracking report is Ex. CW-1/6 and returned envelope is Ex. CW-1/7 and the complaint is Ex. CW-1/8.
After closure of pre-summoning evidence, since sufficient material Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 2 of 13 3 was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 25.05.2016.
3. Accused appeared pursuant to bailable warrants and notice U/s 251 CrPC was served upon the accused vide order dated 06.02.17 to which the accused pleaded not guilty and claimed trial. Accused stated that the complainant runs a business to give loans on interest. Accused further stated that he has taken a loan of Rs. 50,000/- from the complainant and at the time of taking loan, he has given a blank signed cheque as a security. As per regular practice, the complainant receives the loan amount by way of daily payment of installments and a card is issued to the debtor and after receiving the daily installments, an entry is made in the card. Accused stated that he has paid some daily installments and the complainant has made entries in the car issued to him and he is filing the photocopy of the same. (the same is taken on record and is marked as mark-M). Accused further stated that he failed to pay some installments and complainant presented the cheque to the entire amount without intimation to him. Only Rs. 25,000/- is due to be paid to him towards the complainant. Accused stated that he has no legal liability to pay the cheque amount to the complainant.
4. Thereafter, upon oral request of accused, accused was allowed to cross examine complainant and his witnesses u/s 145 (2) NI Act vide order dated 06.02.17.
Complainant was duly cross examined by Sh. S.P. Verma, Ld. Counsel for the accused. No other complainant witness was produced by the Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 3 of 13 4 complainant. Thereafter, CE was closed vide order dated 28.03.2017.
5. Thereafter, the plea of the accused Brijesh Sharma s/o Sh. Bhudutt Sharma u/s 313 r/w 281 CrPC was recorded vide order dated 25.04.2017, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that he has not taken any above said financial assistance from the complainant. The complainant has taken blank cheque from him as complainant is running a business of finance on the daily installments and he has already filed copy of card in which entires regarding daily installments is made and the photocopy is already mark-M. Accused stated that he received the legal notice but he was under impression that he had to appear before the Court and he was not having legal knowledge of the procedure. Accused stated that he is innocent and the complainant has falsely deposed against him just to harass him and extort money from him. Accused further stated that he has video of the employee of the complainant who used to visit his premises for the purpose of collection of daily installment and he want to produce those videos in the Court.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined himself as DW-1 and Sh. Momin as DW-2 and both the witness were duly cross examined by Sh. Pramod Goel, Ld. Counsel for complainant. No other defence witness was produced by the accused and thus, DE was closed vide order dated 01.05.2018 and matter was fixed for final arguments.
7. Sh. Manoj Kumar, Ld. Counsel for complainant and Sh. Soham P. Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 4 of 13 5 Verma, ld. Counsel for accused have address final arguments. a. By way of oral arguments, Ld. Counsel for complainant has reiterated the facts mentioned in the complaint. It has been further argued that the accused has admitted that he had taken loan from the complainant and he had only disputed the quantum of loan and accused has also admitted issuance of cheque in question as well as receipt of legal notice. It has been further argued that even if it is presumed that accused had given blank signed cheque to the complainant then section 20 of NI Act comes in favour of complainant as per which the accused had given implied authority to complainant to write the particulars of cheque and to present the same. It has been further argued that the accused had taken defence that complainant is running a business of money lending and to prove this fact accused had produced one card which is mark-A. Now this mark-A does not mention the address of complainant nor there is anything in this card to prove that complainant is running a business under the name of R & M Enterprises. Further, accused had produced one Mr. Momin @ Bobby as DW-2. Mr. Momin @ Bobby is tenant of accused as admitted by DW-2 during cross examination which shows that he is an interested witness. Moreover, DW-2 has relied upon one CD and upon transcript of CD but the CD has not been proved properly by the accused and transcript has not been proved by DW-2. Rather DW-2 has admitted during cross examination that transcript has been prepared by the accused and not by him and thus DW-2 is not a direct witness to the transcript and his testimony is not trustworthy being hear say evidence. Further, even if for the sake of arguments the conversation relied Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 5 of 13 6 upon by the accused and DW-2 Momin @ Bobby is considered, the perusal of conversation shows that complainant and Momin are not talking about the loan given by the complainant to the accused and they are talking about the loan transactions between the complainant and DW-2. It has been further argued that accused had failed to prove that complainant is in money lending business. Further, accused has also failed to prove that he has taken loan of Rs. 50,000/- from the complainant and accused had repaid the amount of Rs. 50,000/- by way of daily installment to the complainant. On the other hand, complainant's testimony has remained unrebutted and accused has not proved any defence while presumptions U/s 119 r/w 141 N I Act are against the accused. Thus, the accused has failed to prove his defence while the complainant has proved his case beyond reasonable doubts. Therefore, accused is liable to be convicted.
On the other hand, it has been argued by the Ld counsel for the accused that accused had taken loan of Rs. 50,000/- only and a blank signed cheque has been taken by the complainant for the purpose of security. The accused had already returned the amount of Rs. 50,000/- alongwith interest by way of daily installments. No address of accused is mentioned on the document mark-A because complainant does not want to create a proof against himself that he runs a business of finance /loan. Further, Ld. Counsel for accused has pointed out to the cross examination of complainant and has stated that the complainant is running three business for the same address and he is filing ITR for his firm in his own name and not in name of his firms in contravention of legal provisions. It has been further argued that the complainant has stated that Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 6 of 13 7 he has not shown the alleged loan given to the accused in his books of account but as per general practice the books of account have to be maintained otherwise balance sheet cannot be prepared. Further, complainant has never examined his wife as CW-2 to prove that he had taken amount of Rs.2.5 lacs from account of his wife to arrange the loan of Rs. 4 lacs for the accused. It has been further argued that complainant is running the business under the firm namely R& M Enterprise which is mentioned in the card mark-A. It has been further argued that complainant has filed other cases against other persons and there are two matters i.e. CC no. 471186/16 and 471187/16 filed by the complainant against other persons u/s 138 NI Act pending in other Courts. Further, DW-2 testimony clearly proves that complainant is in business of giving small loan to various persons. It has been further argued that it is highly improbable that a person would give such a huge loan of Rs. 4 lacs to anyone without any written agreement or written receipt. Thus, the complainant has failed to prove his case while accused has taken consistent defence since beginning. The testimony of accused and DW-2 have remained unrebutted. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 7 of 13 8
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, accused has only disputed his legal liability to pay the cheque amount to the complainant and issuance of cheque in question, its dishonour and receipt of legal notice are not in dispute.
11. It is the case of the complainant that he had given friendly loan of Rs.04 lacs to the accused and accused had issued cheque in question to return the said loan amount and the cheque got dishonoured.
On the other hand, the defence of the accused is that complainant runs a business of giving loan on interest and accused has only taken loan of Rs50,000/- which was repayable by way of installment of Rs600/- per day and accused has paid some installments total upto Rs33900/- and the outstanding is only Rs26100/- and the card in which entries of daily installments were made is Mark A and accused has no legal liability to pay the cheque amount.
12. Admittedly, no written document or agreement or receipt has been executed between parties and the court has to evaluate oral testimonies of both parties.
13. Clearly, the accused has only disputed quantum of liability because as per complainant, accused had taken loan of Rs04 lacs and nothing has been paid while as per accused, he had taken loan of Rs50,000/- out of which amount Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 8 of 13 9 of Rs33,900/- has already been paid. Therefore, the onus is upon the accused to prove his defence. Now, to prove his defence, accused has cross examined the complainant and the testimony of complainant has remained unrebutted and complainant has denied the defence of accused which was put to him by way of suggestions and has reiterated his averments mentioned in the complaint.
14. Further, to prove his defence, accused has entered into witness box and by way of affidavit of evidence ExDW1/A, accused has reiterated his defence but during cross examination, accused admitted that :
"It is correct that the cheque Ex. CW-1/1 bears my signature. (vol. I have given the blank cheque to the complainant neither the name nor the amount is written by me)....................... It is correct that in mark -A neither the name nor the address of complainant has been mentioned anywhere. (vol. That the finance business of the complainant is fraud business as no address has been given in the mark-A). It is correct that the card mark-A does not bear any signature of the complainant (Vol. The worker /employee of the complainant who used to come to collect the amount /daily installment, used to sign the card mark-A on behalf of complainant)".
Thus, the accused has admitted that the card Mark A does not mention the address of complainant nor it bears signatures of complainant. The accused has not disclosed the name of worker or employee of the complainant who used to collect the daily installment nor accused has disclosed as to who has signed the card Mark A. It is highly improbable that complainant would send many persons on daily basis to collect the installments and generally one or two employees are being hired for the purpose of collection of installments and therefore, it is improbable that accused would neither disclose the name of the Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 9 of 13 10 employee nor would give details of signatory of Mark A.
15. Further, to prove his defence, accused has examined Mr Momin @ Bobby as DW-2 who has tried to prove CD whose transcript is Mark A (colly). Now, first of all, DW-2 has not filed Certificate U/s 65B of Indian Evidence Act nor he has relied upon the conversation recorded in CD. It is settled principle that mere filing of a document on judicial record is not sufficient and cannot be read in evidence ipso-facto and the document has to be proved as per provisions of Indian Evidence Act. Therefore, the CD is inadmissible in evidence for want of Certificate/Affidavit U/s 65 B of Indian Evidence Act. Further, DW-2 has relied upon the transcript of CD Mark A (colly) but during cross examination, he admitted that transcript has been prepared by accused and he has not deposed that he is well conversant with the contents of transcript. Thus, the transcript has not been properly proved by DW-2 or by the accused and cannot be considered. Further, even if for the sake of arguments, the transcript of CD conversation is considered, first of all, in the entire conversation, there is no talk about the transaction in question ie regarding the quantum of loan given by accused to the complainant nor the same is related to the issuance of blank signed cheque by the accused and misuse of the same by the complainant. Further, admittedly, the conversation is related to the time period which is after the filing of the present complaint but the court has to consider the liability and status of parties on the date of cheque and not later on.
Further, DW-2 Momin @ Bobby has entered into witness box to prove that complainant is in business of giving loan on interest. Now, to prove Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 10 of 13 11 this, DW-2 has not produced anything. During the conversation Mark A (colly), there is a mention of loan of Rs20,000/- given by the complainant to DW-2 and as per DW-2 he is also paying the loan by way of installments. But DW-2 has not produced any card showing the entries of daily installments as has been produced by the accused. Now, it is highly improbable that complainant would issue card to accused exclusively and not to DW-2. Therefore, the testimony of DW-2 does not fetch any credibility.
16. As far as the plea regarding issuance of blank signed undated cheque is concerned, accused cannot escape his liability because no law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused had no legal liability on the date Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 11 of 13 12 of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011 that :
"there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him".
Moreover, even for the sake of arguments, it is considered that accused issued blank signed cheque, then no plausible reason is coming forward as to why complainant would enter a random amount of Rs04 lacs in the cheque in question when complainant had opportunity to enter even higher amount in the cheque in question.
17. During final arguments, it has also been argued on behalf of the accused that the complainant has not shown the said loan in his ITRs and accused is running 03 businesses from the same address and he is filing ITR for his firm in his own name not in name of firm nor he is maintaining account books, in absence of which he cannot prepare balance sheet and thus, the complainant is seeking recovery of unaccounted money by way of present complaint. Therefore, the complainant is liable to be dismissed only on this ground. On the other hand, the complainant has opposed the same.
Heard. Perused. In the judgment of : Sheela Sharma vs Mahendra Pal 2016 Law Suit (Del) 4859 wherein it was held that non disclosure of loan Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 12 of 13 13 advanced by complainant to the accused may attract penal provisions under the Income Tax Act but the same has no consequences on the proceedings of the complaint U/s 138 N I Act. Therefore, in view of the dictum of the above mentioned judgment of Hon'ble High Court of Delhi as well as on the principles of unjust enrichment, the plea of the accused is not sustainable and the case of complainant cannot fail only on the ground that complainant has failed to reflect the loan advanced to accused in his ITR.
18. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused Brijesh Sharm s/o Sh Bhoodutt Sharma guilty for the punishable U/s 138 N I Act. Hence, he stands convicted.
19. Let the convict be heard on the quantum of sentence on 07.08.18. Copy of the judgment be given dasti to the convict.
Digitally signed by
Announced in the open court PRABH PRABH DEEP KAUR
on 04/07/2018 DEEP KAUR Date: 2018.07.05
16:44:35 +0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 13 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Sanjeev Kochar Vs. Brijesh Sharma CC No. 461188/2016 Page 13 of 13