Delhi District Court
Abhinav Kad vs . Ajay Sarna on 7 May, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
ABHINAV KAD VS. AJAY SARNA
CC No. 10/1/13
U/s : 138 NI ACT
P.S. : Malviya Nagar
Date of Institution : 24.05.2011
Date on which case reserved for Judgment : 23.04.2018
Date of judgment : 07.05.2018
JUDGMENT
1.CC No. of the case : 10/1/13
2.Date of the Commission : Unknown
of the offence
3.Name of the accused : Ajay Sarna,
: S/o Late Harish Sarna,
: R/o C16, Malviya Nagar,
: New Delhi.
4.Name of the complainant : Abhinav Kad,
: S/o Sh. Vinod Kad,
: R/o 80/74, 1st floor,
: Malviya Nagar, New Delhi.
5.Offence complained of : 138 NI Act
6.Plea of accused : Pleaded not guilty.
7.Final order : Acquitted for the offence alleged
CC No. 10/1/13 Abhinav Kad Vs. Ajay Sarna 1/8
BRIEF FACTS:
1. The complainant Sh. Abhinav Kad filed the present complaint against the accused Ajay Sarna making the allegations that accused had issued cheque bearing no. 754814 dated 16.02.2011 in the sum of Rs. 5.00 lakhs drawn on Syndicate Bank, C5, Malviya Nagar, New Delhi in favour of complainant towards the discharge of legally enforceable debt/liability and when the same was presented in the bank for payment by the complainant, the said cheque was returned unpaid with the remarks, 'Account Closed'. Despite service of legal notice dated 27.04.2011, accused failed to make the payment within 15 days of the receipt of the legal notice. The complainant thus filed the present complaint for the offence punishable U/s 138 NI Act r/w Section 420 IPC. The complainant stated before Ld. ACMM on 26.05.2011 that he pressed his complaint only qua the offence U/s 138 NI Act and case was sent back to the Ld. Predecessor Court and proceeded qua the offence U/s 138 NI Act.
2. In the Presummoning evidence, complainant tendered his evidence by way of affidavit. Vide order dated 06.06.2011, the accused Ajay Sarna was summoned for the offence U/s 138 NI Act.
3. Notice for the offence u/s 138 NI Act was framed against the accused on 02.09.2011. The accused pleaded not guilty and claimed trial.
4. On 02.09.2011, accused moved an application U/s 145 (2) NI Act for cross examination of CW1 and CW1 was cross examined in pursuance to the application being allowed. Thereafter post notice complainant's evidence was closed on 13.07.2015. The statement of accused (SA) was recorded on 20.11.2015 wherein he sought to lead defence evidence.
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5. Accused examined HC Manoj Kumar, SI Sohan Pal Singh and Sh. Subash Chander, Bank official from Syndicate Bank and Sh. Gautam Bhunia, Ahlmad as DW1 to DW4 in defence evidence. Defence Evidence (DE) was closed on 09.01.2018.
6. Final arguments were thereafter advanced by ld. counsel for complainant and ld. defence counsel.
7. Heard the arguments. Perused the record.
REASONS FOR DECISION:
8. Ld. counsel for the complainant submitted that all the ingredients of the offence U/s 138 Negotiable Instruments Act had been proved by the complainant, that the complainant had established that the accused borrowed money from him and in discharge of his liability handed over the impugned cheque to the complainant which got dishonoured upon presentation. Ld. counsel for the complainant also contended that the accused had failed to rebut the presumptions U/s 118 and 139 of NI Act and neither the accused nor his wife stepped into the witness box to depose the facts.
9. On the other hand, Ld. defence counsel argued that the cheque in question was stolen from the possession of the accused and FIR bearing no. 521/11, PS Malviya Nagar was registered upon the complaint of the accused (wherein the cancellation report was filed by the police and further investigation was ordered vide order dated 14.01.2015 passed therein certified copy of which has been filed by the accused). He argued that the complainant did not disclose the source of funds, mentioned no specific dates and did not file his passbook or Income Tax Returns. Ld. defence counsel relied on the judgments : M.S. Narayana Menon Vs. State of Kerala (2006 AIR SC 3366), Kumar Exports Vs. CC No. 10/1/13 Abhinav Kad Vs. Ajay Sarna 3/8 Sharma Carpets (2009 AIR SC 1518), K Prakashan Vs. P.K. Surenderan (2007 10 SCR 1010), G.P. Amma Vs. M. Mathew (2004 12 SCC 83), Anil Aggarwal Vs. State (2015 9 AD Delhi 377), Veena R Chhabra Vs. Manju (2008 155 DLT
447) and Vijay Vs. Laxman and Anr. (2013 AIAR Crl. 196).
10. It was correctly pointed out by ld. counsel for the complainant that the accused himself has not denied the signatures on the impugned cheque Ex. DW3/X2 and has exhibited the copy of the complaint bearing No. CC No. 60/1 as Ex.DW4/1 wherein the plea raised was that the cheques which were stolen were blank, signed ones but the witness DW3 Sh. Subhash Chander Arora mentioned in the letter Ex. DW3/A the reason for dishonour of the cheque to be that the signatures did not match. Ld. counsel for the complainant argued that the accused had thus taken contradictory stands and his defence did not seem probable.
11. The stand of DW3 Sh. Subhash Chander Arora, witness from the bank is apparently not in consonance with that of the accused, for reasons best known to DW3 and must be discarded as the accused himself does not dispute the factum of the cheque in question bearing his signature. However, the well settled law is that the prosecution's case must stand on its own legs and cannot seek to take aid of the deficiencies if any in the defence of the accused. It has to be seen whether the complainant has discharged his onus.
12. First of all, the perusal of the complaint reveals that the same lacks in material particulars i.e. the date or dates of grant of the loan amount, the number of occasions on which the amount was so given by the complainant and whether it was in the presence of any witness or not. It is merely the complainant's case that the friendly loan of Rs. 5 lakhs by way of cash was granted to the accused during the year 2009 and 2010 but no receipt was executed and the amount was to be CC No. 10/1/13 Abhinav Kad Vs. Ajay Sarna 4/8 returned at the earliest.
13. In his cross examination the complainant/CW1 deposed that he did not remember the dates on which he advanced the loan amount though he advanced the loan amount in installments ranging from Rs. 15,000/ to Rs. 1.5 lakhs. This is nowhere stated in the complaint. Moreover, the complainant/CW1 did not remember the exact number of installments of the loan deposing that he gave the amount in about 10 to 15 installments of various amounts. Thus the complainant presented a very vague case.
14. More importantly, the complainant/CW1 deposed that he had not annexed any documents with his complaint which could show the withdrawal or possession of Rs. 5 lakhs with him and he admitted that he had not shown the loan of Rs. 5 lakhs in his ITR, giving an explanation for the same that it was because he had handed over this money out of his savings which is not a legally sound explanation at all. Although he denied the suggestion that he had not shown the loan of Rs. 5 lakhs in his ITR as he never advanced that money to the accused however the genuineness of the complainant's case comes under a grave cloud of suspicion as the source of funds has not been disclosed by the complainant nor has he shown this loan in the Income Tax Return in violation to the provision of S. 269SS Income Tax Act.
15. Reliance in this regard is placed on the judgment titled Kulvinder Singh Vs. Kajeel Ahmed 2014 (2) JCC (NI) 100 it was held as follows: "The case of the petitioner in a nutshell is that he had been approached by the respondent and he had advanced a loan of Rs. 9,30,000/ in the first instance. If such a huge amount of money is advanced as a loan to the respondent the CC No. 10/1/13 Abhinav Kad Vs. Ajay Sarna 5/8 petitioner ought to have shown to the Court concerned as to the source from where he had generated such a huge amount. In his examination /crossexamination, he stated that he had sold his machinery but he failed to produce any record to that effect. He has not reflected the loan advanced to the respondent in his income tax return nor is he able to tell to the Court the ward in which the income tax return is filed. The Learned Magistrate has rightly placed reliance on the provisions of Section 269 SS of Income Tax Act wherein it is specifically laid down that if a loan is advance which is more than Rs. 20,000/ it has to be by way of writing reflected in the books of account but nothing of that sort has been done in the instant case. Obviously, this clearly creates a doubt regarding the truthfulness of the stand taken by the petitioner that he advanced a loan of Rs. 9,30,000/ to the respondent"
16. The accused took the plea that the cheque in question which bears the date 16.02.2011 was stolen on 14.02.2011. The FIR lodged in respect of the articles stolen including the cheque in question was exhibited as Ex. DW4/2 which probabilizes the defence of the accused. This is more so, since the complaint allegations do not even mention the exact date of alleged handing over of the cheque by the accused to the complainant only mentioning the same to be in the month of March 2011 whereas during his chief examination the complainant/CW1 deposed that the cheque was handed over to him in January 2011 and he explained that March 2011 had CC No. 10/1/13 Abhinav Kad Vs. Ajay Sarna 6/8 been mentioned in the complaint due to a typographical error. Even if this explanation is accepted, still the exact date of handing over of the cheque has not been deposed by the complainant/CW1 which is important because as per the accused, the cheque was stolen on 14.02.2011.
17. Another factor to be considered is that the complainant/CW1 did not choose to disclose in the complaint that on 26.12.2010, he and his relatives had a quarrel with the wife of the accused for which the complainant/CW1 tendered a written apology in the PS (Police Station) and this fact was admitted by him in the cross examination wherein he voluntarily disclosed that he had a quarrel with the accused as well.
18. Ld. defence counsel correctly pointed out that it is not the complainant's case that the cheque in question was handed over by the accused towards settlement after this incident so if there had been a quarrel between the parties on 26.12.2010, it seems highly improbable that the accused would have handed over the impugned cheque in January 2011 to the complainant in absence of any settlement.
19. The complainant has not stated all the material facts in his complaint and has not come to the Court with clean hands. The complainant has failed to establish that there was a legally recoverable debt payable by the accused to him.
20. Consequent to the aforesaid discussion, it is held that the complainant has failed to establish his case beyond reasonable doubt and the accused has been able to rebut the presumptions arising against him by raising a probable defence. The accused Ajay Sarna is therefore acquitted for the offence U/s 138 NI Act.
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21. Bail bonds u/s 437 A Cr.P.C. have been furnished by the accused. Perused and accepted for a period of six months from today. Nothing further remains in the case, therefore file be consigned to record room after necessary compliance.
Announced in the Court (ANJANI MAHAJAN) on 07.05.2018 MM02(SD)/07.05.2018
Certified that this judgment contains 8 pages and each page bears my signatures.
(ANJANI MAHAJAN)
MM02(SD)/07.05.2018
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