Delhi District Court
Sh. Sharda Nand Singh vs Sh. Satish Kumar on 20 January, 2012
In the Court of Sh. Manoj Kumar : Senior Civil JudgecumMetropolitan
Magistrate of New Delhi District at Patiala House Courts, New Delhi
C.C. No. 92/1/09 (original no. 2422/1/05)
Unique ID No. 02403R0678532005
In the matter of:
Sh. Sharda Nand Singh,
S/o late Ram Kishan Singh,
R/o 264, Bal Mukand Khand,
Giri Nagar, Kalkaji,
New Delhi110019 ....................Complainant
VERSUS
Sh. Satish Kumar,
S/o Sh. Badri Prasad,
R/o C61/2, Sudama Puri,
Delhi110053 .....................Accused
Date of Institution : 16.12.2005
Date of Arguments: 16.01.2012
Date of Judgment : 20.01.2012
COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881
JUDGMENT :
The present case was received by way of transfer as per the order no. 145192/01/F.3(4)/MM dated 02.01.2009 passed by the learned C. C. No. 92/1/09 Page no. 1 of 21 District JudgeI and Sessions Judge, Delhi in pursuance of order no. 25/DHC/Gaz./VI.E2(a) dated 22.10.2008 passed by the Hon'ble Delhi High Court. It shall be disposed of in compliance of the said orders.
2. This is a complaint under section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) read with section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) made by complainant Sh. Sharda Nand Singh against accused Sh. Satish Kumar stating that for last many years the complainant was having cordial relation with the accused and in the month of June, 2005 had given a friendly loan of Rs.1,00,000/ to the accused in discharge of which the accused handed over two posted dated cheques bearing no. 963552 and 983012 dated 07.10.2005 and 14.10.2005 each in the sum of Rs.50,000/ drawn on Andhra Bank, Kalkaji, New Delhi; that the complainant presented cheque bearing no. 963552 dated 07.10.2005 for encashment but the same returned unpaid alongwith memo dated 22.10.2005 the information of which was received by the complainant from his bank vide debit advice dated 24.10.2005; that the other cheque bearing no.983012 dated 14.10.2005 was also presented by the complainant for encashment and the same also returned unpaid due to insufficiency funds alongwith memo dated 26.10.2005 the information of which was received by the complainant from his bank vide debit advice dated 27.10.2005; that a notice dated 22.11.2005 was sent by the complainant, through his advocate, by registered post and UPC and the said notice was duly received by the C. C. No. 92/1/09 Page no. 2 of 21 father of the accused who had signed the AD card in proof thereof but no date of receipt has been mentioned on the AD card and as such the complainant presumes the date of service to be 25.11.2005; that the accused has not paid total cheque amount of Rs.1,00,000/ to the complainant within the stipulated period of fifteen days from the date of the receipt and knowledge of the notice leading upto the making of the present complaint with a view to summon, try and punish the accused for having committed offence punishable under section 138 of Act 26 of 1881.
3. The complaint was made on 16.12.2005 and on 17.01.2006 having received the affidavit of the complainant alongwith some documents during his examination under section 200 Cr.P.C. my learned predecessor took cognizance of offence punishable under section 138 of Act 26 of 1881 and passed a summoning order under section 204 of Cr.P.C. whereby the accused was summoned to face accusation against him.
4. In pursuance of the process issued by the court the accused appeared and was admitted to bail. Subsequently, on 03.02.2009 a notice of accusation under section 251 of Cr.P.C. was framed against the accused whereby he was charged with the commission of offence punishable under section 138 of Act 26 of 1881 in respect of cheques bearing nos. 963552 and 983012 dated 07.10.2005 and 14.10.2005 respectively each in the sum of Rs.50,000/. The notice of accusation so framed was read over and explained to the accused to which he did not plead guilty and therefore, the C. C. No. 92/1/09 Page no. 3 of 21 accused was put on trial.
5. In support of his case the complainant got examined himself as CW1 and during his examination in chief tendered affidavit Ex. C1 alongwith documents Ex. CW1/1 to Ex. CW1/10. CW1 Sh. Sharda Nand Singh was cross examined on behalf of the accused and thereafter, evidence on behalf of the complainant was closed and the accused was examined under section 313 of Cr.P.C.
6. During his examination under section 313 of Cr.P.C. the accused denied having taken any loan of Rs.1,00,000/ from the complainant in the month of June, 2005. The accused stated that the loan was not given in the month of June, 2005 and instead the loan of Rs. 50,000/ was given in the month of January, 2004. During his examination under section 313 of Cr.P.C. the accused denied having issued cheques Ex. CW1/1 and Ex. CW1/4 to discharge his debt liability of Rs.1,00,000/. The accused stated that cheque Ex. CW1/1 was given by him to the complainant as security for repayment of the loan amount taken in the month of January, 2004 whereupon signature was put by him and the amount in words and figures was also filled by him. The accused further stated that the date and name of payee in cheque Ex. CW1/1 were not filled by him. The accused further stated that after fifteen days of receiving cheque Ex. CW1/1, as security, the complainant told him that while cleaning the cloths, the cheque was washed and therefore, he should give to the complainant another C. C. No. 92/1/09 Page no. 4 of 21 cheque in substitution to the earlier cheque as security. The accused further stated that having believed the words of the complainant he had issued cheque Ex. CW1/4, as security, for repayment of the loan amount of Rs. 50,000/. The accused further stated that the contents of cheque Ex. CW1/4 were filled by him and the cheque was signed by him. During his examination under section 313 of Cr.P.C. the accused further stated that after taking loan from the complainant he had been making payment of Rs. 3000/ per month to the complainant for next 78 months. The accused denied having received any demand notice dated 22.11.2005 and further expressed his ignorance about acknowledgment card Ex. CW1/10. The accused also stated that he was not residing at the address given on the acknowledgment card and the notice dated 22.11.2005. The accused further stated that having taken loan of Rs.50,000/ from the complainant he had paid Rs.3000/ per month to the complainant for 78 months and had given his mother cycle bearing registration no. DL 3S AF 1440 to the complainant. The accused also stated that the complainant was claiming Rs. 30,000/ after adjusting the payments made by him to the complainant and the price of the motorcycle and therefore, he had sold his house to the complainant which was registered in the name of Smt. Manju Singh, the wife of the complainant. The accused further stated that the loan amount taken by him from the complainant was adjusted against the sale consideration of the house.
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7. In his defence the accused got examined himself as DW1 and also produced his brother Sh. Rajender Kumar as a witness who was examined as DW1 and discharged.
8. I have heard counsel for the parties and gone through the material on record carefully.
9. Having drawn my attention on the testimony of CW1 Sh. Sharda Nand Singh, documents Ex. CW1/1 to Ex. CW1/10, statement of accused recorded under section 313 Cr.P.C., documents Ex. DW1/CX1 and Ex. DW1/CX2 and the bond Ex. X furnished by the accused before the court and the law laid down in Rangappa v. Mohan, AIR 2010 SC 1898 it is submitted by counsel for the complainant that in the month of June, 2005 the accused had taken loan of Rs.1,00,000/ from the complainant and to discharge his debt he had drawn two cheques Ex. CW1/1 and Ex. CW1/4 in favour of the complainant which were presented by the complainant for encashment but the same returned unpaid alongwith memos Ex. CW1/2, Ex. CW1/3, Ex. CW1/5 and Ex. CW1/6 due to insufficient funds in the account of the accused. It is further submitted by counsel for the complainant that a demand notice dated 22.11.2005, a copy of which is Ex. CW1/7, was served by the complainant upon the accused by registered post with AD and UPC whereby the accused was called upon to make payment of the cheque amount within fifteen days of the receipt of the notice but despite receipt of the notice the accused did not make payment of the C. C. No. 92/1/09 Page no. 6 of 21 cheque amount. It is further submitted by counsel for the complainant that all the ingredients of offence punishable under section 138 of Act 26 of 1881 and conditions precedent for making complaint have been proved by the complainant against the accused in respect of cheques Ex. CW1/1 and Ex. CW1/4 therefore, the accused be convicted and punished for commission of offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/1 and Ex. CW1/4. It is also submitted by counsel for the complainant that the defence taken by the accused is frivolous and the testimony of the accused and his brother who appeared as DW2 cannot be believed.
10. Per contra, having drawn my attention on the testimony of the accused and DW2 Sh. Rajender Kumar and the law laid down in M/s Nijjer Agro Foods Ltd. and others v. Sh. Nasib Chand and another, 2003 [3] JCC 304 it is submitted by counsel for the accused that the accused has been falsely implicated and he be acquitted. It is further submitted by counsel for the accused that the accused had not taken any loan of Rs.1,00,000/ from the complainant in the month of June, 2005 and instead the loan of Rs. 50,000/ was taken by him from the complainant in the month of January, 2004. It is further submitted by counsel for the accused that cheque Ex. CW1/1 was given in the month of January, 2004 as security for repayment of the loan amount but after some time the complainant told the accused that in the process of washing the cloths the cheque was washed out and C. C. No. 92/1/09 Page no. 7 of 21 therefore, the accused should give another cheque in substitution of cheque Ex. CW1/1 and thus, cheque Ex. CW1/4 was given by the accused to the complainant as security. It is further submitted by counsel for the accused that some payment against the cheque was made by the accused to the complainant by way of 7 or 8 installments of Rs.3000/ each and rest of payments was adjusted against the price of the motorcycle and the sale consideration of the house sold by the accused to the complainant. It is further submitted by counsel for the accused that the ingredients of offence punishable under section 138 of Act 26 of 1881 have not been proved by cogent evidence therefore, the accused be acquitted.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. From the testimony of CW1 Sh. Sharda Nand Singh and DW1 Sh. Satish Kumar it has been proved that cheques Ex. CW1/1 and Ex. CW1/4 were given by the accused to the complainant and both the cheques have been signed by accused Sh. Satish Kumar.
13. From the testimony of CW1 Sh. Sharda Nand Singh and return memos Ex. CW1/2, Ex. CW1/3, Ex. CW1/5 and Ex. CW1/6 it has also been proved that cheques Ex. CW1/1 and Ex. CW1/4 bearing no. 963552 and 983012 respectively were presented by the complainant for encashment before the bankers of the accused and both the cheques returned unpaid on 26.10.2005 and 22.10.2005 respectively due to C. C. No. 92/1/09 Page no. 8 of 21 insufficient funds in the account of the accused and the complainant got information about such dishonour of the cheques from his bankers on 24.10.2005 and 27.10.2005 respectively.
14. It has been deposed by CW1 Sh. Sharda Nand Singh during his examination in chief that after dishonour of cheques Ex. CW1/1 and Ex. CW1/4 due to insufficient funds in the account of the accused he had sent a demand notice dated 22.11.2005, a copy of which is Ex.CW1/7, to the accused by registered post and UPC at his address 61/2, Sudama Puri, Delhi whereby the accused was called upon to make payment of the amount against both the cheques within fifteen days of the receipt of the notice and the said notice was received by the accused by way of acknowledgment card Ex. CW1/10. It has further been deposed by CW1 Sh. Sharda Nand Singh during his examination in chief that despite receipt of the legal notice dated 22.11.2005 the accused failed to make payment of Rs.1,00,000/ against the cheques to him.
15. During his examination under section 313 Cr.P.C. as well as his testimony as DW1 the accused has denied having received any legal notice dated 22.11.2005. During his examination it is deposed by DW1 Sh. Satish Kumar that in the year 200506 he was residing at C44/34A, Gali no. 8, Sudama Puri, Gamari Extension, Delhi and had not received the notice. The version put up by the accused on this aspect appears to be false and cannot be accepted.
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16. After summoning of accused in this case he was called upon to give bail and at the time of execution of his bond the accused had given his address as C61/2, Sudama Puri, Delhi, the address mentioned in the complaint, notice Ex. CW1/7, postal receipts and acknowledgment card Ex. CW1/10. During the cross examination of DW1 Sh. Satish Kumar document Ex. CW1/CX1 was brought to his notice by the learned counsel for the complainant and he admitted his signature on the said document. In document Ex. CW1/CX1, which was executed on 08.06.2005, also the accused has given his address as C61/2, Sudama Puri, Delhi53. During the cross examination of DW2 Sh. Rajender Kumar, who is the brother of the accused and claimed to being in position to identify the signature of his brother Satish Kumar and father Badri Prasad, acknowledgment card Ex. CW1/10 was brought to his notice and he identified signature of his father on the said acknowledgment card. From the testimony of DW1 Sh. Satish Kumar it has also been proved that his father Sh. Badri Prasad used to reside with him. In these circumstances, the defence of the accused that in the year 2005 he was not residing at C61/2, Sudama Puri, Delhi 53 and had not received the notice dated 22.11.2005 cannot be accepted. In the light of the testimony of CW1 Sh. Sharda Nand Singh, contents of notice Ex. CW1/7, postal receipts Ex. CW1/8 and Ex. CW1/9 and the acknowledgment card Ex. CW1/10, which bears the signature of the father of the accused who had been residing with him, I hold that the notice dated C. C. No. 92/1/09 Page no. 10 of 21 22.11.2005 was sent by the complainant to the accused on 23.11.2005 and the same was duly served upon him.
17. From the testimony of CW1 Sh. Sharda Nand Singh and the statement made by the accused during his examination under section 313 of Cr.P.C. it has also been proved that despite receipt of the notice dated 22.11.2005, a copy of which is Ex. CW1/7, the accused did not make payment of Rs.1,00,000/ to the complainant within fifteen days of the receipt of the notice.
18. In the light of the defence taken by the accused only fact in issue which remains to be determined is: whether cheques Ex. CW1/1 and Ex. CW1/4 were not drawn by the accused to discharge any legally enforceable debt or liability?
19. The contention of the complainant is that in the month of June, 2005 having taken loan of Rs.1,00,000/ the accused had drawn post dated cheques Ex. CW1/1 and Ex. CW1/4 to discharge his debt liability. Whereas the contention of the accused is that in the month of January, 2004 he had taken loan in a sum of Rs.50,000/ from the complainant and had given cheque Ex. CW1/1 as security to the complainant. According to the accused when the cheque Ex. CW1/1 was given by him to the complainant, the same was not bearing any date or name of payee whereas the cheque was signed by him and amount of Rs.50,000/ was mentioned therein. It is also the contention of the accused that after some days of receiving cheque C. C. No. 92/1/09 Page no. 11 of 21 Ex. CW1/1, the complainant contacted him and told that the cheque was washed out and therefore, he should give another cheque as security. According to the accused he believed the version of the complainant that cheque Ex. CW1/1 was washed out and therefore, had drawn cheque Ex. CW1/4 in favour of the complainant. It is not the case of the accused that any of the particulars in cheque Ex. CW1/4 have not been filled by him.
20. As the accused admits his signatures on cheques Ex. CW1/1 and Ex. CW1/4 but asserts that the cheques were given as security and cheque Ex. CW1/4 was given in substitution to cheque Ex. CW1/1, therefore, the initial presumptions as contemplated under sections 118 (a) and 139 of Act 26 of 1881 have to be raised by this court in favour of the complainant and against the accused; and it shall be presumed that cheques Ex. CW1/1 and Ex. CW1/4 were drawn by the accused in favour of the complainant to discharge his legally enforceable debt or liability unless and until he proves to the contrary.
21. During his examination as DW1 it has been deposed by the accused that in the month of January, 2004 he had borrowed a sum of Rs. 50,000/ from the complainant and had given cheque Ex. CW1/1 as security wherein the amount was filled by him and the column of date and name were left blank. It is further deposed by DW1 Sh. Satish Kumar that complainant called him after some time and told him that the cheque had been washed away and requested to issue another cheque. It is further C. C. No. 92/1/09 Page no. 12 of 21 deposed by DW1 Sh. Satish Kumar that at the request of the complainant he had given another cheque Ex. CW1/4 to the complainant which was filled by him. It is further deposed by DW1 Sh. Satish Kumar that he had paid Rs. 3000/ per month to the complainant for about 78 months which was given as per the directions of the complainant in discharge of his liability against the debt. DW1 Sh. Satish Kumar further deposed that he had sold his motorcycle bearing registration no. DL 3 SF 1440 to the complainant for a sum of Rs.26,000/ and the transaction was reduced into wiring but against the sale consideration of Rs.26,000/ the complainant had given him only Rs.5000/ for procuring the documents and the rest of Rs.21,000/ was adjusted towards the liability of loan of Rs.50,000/. During his examination in chief DW1 Sh. Satish Kumar further deposed that the complainant had purchased house no. S338, Gali no. 2, Saurabh Vihar, Jaitpur, New Delhi from him in the month of August or September, 2004 in the name of his wife and in the said deal his entire liability was satisfied but he had not returned the cheque. DW1 Sh. Satish Kumar further deposed that the complainant told him that the cheque was not traceable. During his cross examination DW1 Sh. Satish Kumar deposed that the house was sold by him to the complainant in the name of his wife for a sum of Rs. 3,70,000/. It is further deposed by DW1 Sh. Satish Kumar that the sale documents were not got registered but the same were got prepared before a lawyer at Nehru Place and were notarized. DW1 Sh. Satish Kumar further C. C. No. 92/1/09 Page no. 13 of 21 deposed that the complainant was claiming Rs.20,000/ or Rs.25,000/ against him and during that time it was revealed that he was interested in selling his house. During his cross examination DW1 Sh. Satish Kumar admitted having taken Rs.20,000/ as loan from the complainant and executed document Ex. DW1/CX1. During his cross examination DW1 Sh. Satish Kumar denied that the money he had paid to the complainant in installments was against the loan of Rs.20,000/ which was taken in the month of June, 2005 and not towards the loan of Rs.1,00,000/.
22. DW2 Sh. Rajinder Kumar during his examination in chief deposed that in the month of January, 2004, in his presence, his brother Sh. Satish Kumar had borrowed Rs.50,000/ from the complainant and issued security cheque Ex. CW1/1 wherein the date and name of the payee were not filled. DW2 Sh. Rajender Kumar further deposed that after about one month the complainant called the accused and told him that the cheque given by him to the complainant had been washed out and another cheque Ex. CW1/4 was given by the accused to the complainant in his presence. DW2 Sh. Rajender Kumar further deposed that payment of Rs.3000/ per month was made to the complainant for 78 months and the complainant had also purchased a Freedom motorcycle from the accused for a sum of Rs.26,000/ but the complainant had made payment of Rs.5000/ to the accused and adjusted the remaining amount of Rs.21,000/ against the loan. DW2 Sh. Rajender Kumar further deposed that the complainant was C. C. No. 92/1/09 Page no. 14 of 21 insisting for balance payment and he forced the accused to sell his house to the complainant for Rs.4,00,000/. DW2 Sh. Rajender Kumar further deposed that after adjustment of his dues the accused sold his house to the wife of the complainant for a consideration of Rs.3,70,000/. DW2 Sh. Rajender Kumar further deposed that a demand was made from the accused to return the cheque but he told that the cheque was not traceable. DW2 Sh. Rajender Kumar further deposed that the accused has no liability towards the complainant. During his examination in chief DW2 Sh. Rajender Kumar also deposed that in the year 200506 the accused was residing at C44/34, Sudama Puri, Delhi and he was also residing at Delhi but two years before he had shifted to Mathura. During his cross examination DW2 Sh. Rajender Kumar deposed that he was staying with his brother from the year 2003 to 2006 and thereafter, went to his village situated in Mathura. During his cross examination DW2 Sh. Rajender Kumar further deposed that he had no documentary proof to show that he was staying with his brother from 2003 to 2006. During his cross examination DW2 Sh. Rajender Kumar further deposed that in the year 200304 he used to live at Jaitpur and thereafter, in the year 200405 he had shifted to Bhajan Pura.
23. According to the accused and DW2 Sh. Rajender Kumar loan of Rs.50,000/ was taken in the month of January, 2004 and; cheque Ex. CW1/4 was given in substitution to cheque Ex. CW1/1 as the last mentioned cheque was stated to have washed out. There is nothing in the C. C. No. 92/1/09 Page no. 15 of 21 testimony of DW1 Sh. Satish Kumar or DW2 Sh. Rajender Kumar in proof as to how, when and in what manner the loan amount of Rs.50,000/, which according to them was taken in the month of January, 2004, was to be repaid by the accused to the complainant. It is nowhere deposed by DW1 Sh. Satish Kumar or DW2 Sh. Rajender Kumar as to in how many installments the loan was to be repaid and what was the schedule of the installments. It is also nowhere deposed by DW1 Sh. Satish Kumar or DW2 Sh. Rajender Kumar that any interest on the borrowed amount was to be paid by the accused to the complainant; whereas as per the version of the complainant the loan given by him was a friendly loan.
24. According to the accused and DW2 Sh. Rajender Kumar the first cheque, namely Ex. CW1/1, wherein the date 07.10.2005 appears, was given in the month of January, 2004 itself. According to the accused, as stated by him during his examination under section 313 of Cr.P.C. the complainant contacted him after fifteen days of taking loan and told that the cheque was washed out and demanded another cheque. Whereas, as per the testimony of DW2 Sh. Rajender Kumar it was after about one month that the complainant contacted the accused and having said that the first cheque was washed out demanded another cheque.
25. There is no dispute on the fact that cheque Ex. CW1/4 which according to DW1 Sh. Satish Kumar was given after about fifteen days and according to DW2 Sh. Rajender Kumar was given after about a month of C. C. No. 92/1/09 Page no. 16 of 21 taking the first cheque, was filled by the accused in entirety implying that the date, name of payee and the amount in the cheque were filled by the accused himself. A perusal of Ex.CW1/4 clearly shows that the same is dated 14.10.2005. If, as asserted by DW1 Sh. Satish Kumar and DW2 Sh. Rajender Kumar, the second cheque was given in the month of February, 2004 then, in the absence of any plausible explanation which has not been reflected from the record, it is highly improbable that to discharge the loan amount of Rs.50,000/ taken in the month of January, 2004 the accused would give a cheque for a date as long as 14.10.2005. Furthermore, if in the cheque Ex. CW1/4, which is stated to have been issued in substitution of Ex. CW1/1 after a short time, the name of the payee and the date have been mentioned by the accused himself then it would becomes irrelevant that in the first cheque which, according to the accused, was the original cheque the name of payee and the date were not filled by the accused himself. It appears that even in the first cheque Ex. CW1/1 there was permission on the part of the accused to fill the date as well as the name of the payee.
26. According to the accused and DW2 Sh. Rajender Kumar the loan amount of Rs.50,000/ was discharged by making payment in seven or eight installments of Rs.3000/ each implying that at least Rs.21,000/ were paid in cash and; by adjusting Rs.21,000/ and Rs.30,000/ respectively against the sale of motorcycle and house respectively by the accused to the complainant. It is noteworthy that during their testimony neither the C. C. No. 92/1/09 Page no. 17 of 21 accused as DW1 nor DW2 Sh. Rajender Kumar have deposed as to when the said 78 installments of Rs.3000/ per month were paid by the accused to the complainant. The testimony of DW1 Sh. Satish Kumar and DW2 Sh. Rajender Kumar is silent on the aspect whether the said payment was made in the year 2004 or 2005 or subsequently. If as deposed by DW1 Sh. Satish Kumar and DW2 Sh. Rajender Kumar the payment of Rs.21,000/ was made in cash and remaining payment of Rs.51,000/ was made by adjusting against the sale consideration of motorcycle and the house of the accused then again the version of the accused becomes doubtful because having taken loan of Rs.50,000/, as stated by the accused, which was a friendly loan without interest the accused in all probability would not make payment of Rs.72,000/ to the complainant for discharging such debt. The figures of the payment made by the accused in cash and adjusted against the sale of motorcycle or house suggest that there is force in the contention of the complainant that the installments of Rs.3000/ per month were made against the loan taken by way of Ex. DW1/CX1 and not against the other loan as claimed by the accused.
27. The testimony of DW1 Sh. Satish Kumar does not inspire confidence of the court because according to the statement made by him under section 313 of Cr.P.C. the second cheque was issued after fifteen days of the issuance of cheque Ex. CW1/1 whereas during his testimony in the witness box he has changed his version by giving vague idea of the time C. C. No. 92/1/09 Page no. 18 of 21 when the second cheque was issued. Further in the face of the testimony of DW2 Sh. Rajender Kumar that the second cheque was given after about one month of the delivery of first cheque the testimony of DW1 Sh. Satish Kumar cannot be taken on its face value. DW1 Sh. Satish Kumar has not produced and proved any document of the sale and purchase of the house containing the terms and conditions settled between the parties and has failed to prove the document regarding sale of motorcycle and thus, it cannot be believed that the sum of Rs.21,000/ was adjusted towards the liability of loan and out of the sale consideration of the house Rs.30,000/ was also adjusted against the loan.
28. The testimony of DW2 Sh. Rajender Kumar is also not reliable because he has given different version regarding the time when the second cheque Ex. CW1/4 was issued. His testimony that during the period 2003 to 2006 he had residing with his brother and had been joining him during his visits at the place of the complainant can also not be believed in the face of different version given by him during his cross examination where he said that in the year 2004 and 2005 he was shifted to Bhajan Pura. During his examination in chief DW2 Sh. Rajender Kumar deposed that he shifted to Mathura before two years whereas during his cross examination he gave different version by saying that after 2006 he went to his village situated in Mathura. In the light of document mark A, the presence of DW2 Sh. Rajender Kumar at the time of alleged sale transaction regarding the C. C. No. 92/1/09 Page no. 19 of 21 motorcycle also becomes doubtful in as much as had he been present at the time he would have joined as a witness to the document alongwith Mr. Bhagwan Din Verma whose name has been mentioned on mark A.
29. The testimonies of DW1 Sh. Satish Kumar and DW2 Sh. Rajender Kumar, as I have already mentioned, are not reliable and on the strength of their testimony it cannot be held that the accused has succeeded in rebutting the presumptions under sections 118 (a) and 139 of Act 26 of 1881.
30. From the above discussion it has emerged that the accused had drawn cheques Ex. CW1/1 and Ex. CW1/4 in favour of the complainant and when the said two cheques were presented by the complainant for encashment the same returned unpaid alongwith memos Ex. CW1/2 , Ex. CW1/3 and Ex. CW1/5 and Ex. CW1/6 due to insufficient funds in the account of the accused. It has also been proved that after return of the cheques as dishonoured a demand notice dated 22.11.2005 was served by the complainant upon the accused within thirty days whereby he was called upon to make payment of Rs.1,00,000/ to the complainant within fifteen days of the receipt of the notice. It has also been proved that despite receipt of the notice the accused did not make payment against cheques Ex. CW1/1 and Ex. CW1/4 to the complainant.
31. The accused has failed to prove, by leading cogent and reliable evidence, that he had taken loan in the sum of Rs.50,000/ instead C. C. No. 92/1/09 Page no. 20 of 21 of Rs.1,00,000/ in the month of January, 2004 instead in month of June, 2005 and issued cheques Ex. CW1/1 and Ex. CW1/4 as security. The accused has also failed to prove that he had discharged his liability in respect of cheques Ex. CW1/1 and Ex. CW1/4 before expiry of fifteen days notice after its receipt.
32. All the ingredients of offence punishable under section 138 of Act 26 of 1881 and the condition precedents for making a complaint have been proved by the complainant against the accused in respect of both the cheques. Therefore, accused Sh. Satish Kumar is found guilty of having committed the offence charged against him and accordingly convicted for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/1 and Ex. CW1/4.
Let the convict Satish Kumar be heard on the point of sentence on 23.01.2012.
Announced in the open court (Manoj Kumar)
on this 20th day of January, 2012 Senior Civil Judgecum
Metropolitan Magistrate
New Delhi: 20.01.2012
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