Delhi District Court
Murti Dahiya vs Madhulika Asthana on 13 April, 2012
IN THE COURT OF SH. PARVEEN SINGH: ADMINISTRATIVE
CIVIL JUDGE CUM ADDL. RENT CONTROLLER:
ROHINI COURT: DELHI
C.C. No. 50/1/09
Murti Dahiya,
W/o Sh. Sukhbir Singh Dahiya,
R/o C495, Street No. 11, Majlis Park,
Adarsh Nagar, Delhi. ......Complainant.
VERSUS
Madhulika Asthana,
D/o Late Sh. K.M. Asthana,
W/o Sh. Mukesh Singal,
R/o 65, Sharda Apartment,
3, West Enclave,
Pitam Pura, Delhi. .....Accused.
Date of Institution : 04.10.2006.
Date of Arguments : 31.03.2012.
Date of Judgment : 13.04.2012.
COMPLAINT UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT.
C.C. No. 50/1/09 No. 1 of 20
JUDGMENT:
The present case was received by way of transfer by my learned predecessor as per order no. 145192/01F.3(4)/MM dated 02.01.2009 passed by learned District JudgeI & Sessions Judge, Delhi, in pursuance of order no. 25/DHC/Gaz/VI.E2(a) dated 22.10.2008 passed by Hon'ble High Court of Delhi. It shall be disposed of in compliance of the said orders.
2. The present complaint under section 138 of Negotiable Instruments Act has been filed by the complainant against the accused.
3. The case of the complainant is that the complainant issued a notice of demand of loan to the accused for payment of Rs.3,30,000/ of the dishonoured cheque. The case of the complainant is that the accused had contacted the complainant for advancement of some loan as the accused was in dire need of money. The complainant agreed to advance loan to the accused and paid cash amount to her on the dates mentioned in the promissory notes. On 26.08.2004, the complainant advanced a loan of Rs.1,00,000/ at interest @ 2% per month and the interest upto 31.08.2006 was Rs.48,000/ and a promissory note Ex.CW1/2 was executed. On 14.10.2004, the complainant advanced a loan of Rs.50,000/ at interest @ 2.5% per month and the interest upto 31.08.2006 was Rs.27,500/ and a promissory note Ex.CW1/3 was executed. On 06.11.2004, the complainant advanced a loan of Rs.1,00,000/ at interest @ 2% per month and the interest upto 31.08.2006 was Rs.42,000/ and a promissory note Ex.CW1/4 was executed. On C.C. No. 50/1/09 No. 2 of 20 17.08.2004, the complainant advanced a loan of Rs.80,000/ at interest @ 2% per month and the interest upto 31.08.2006 was Rs.38,400/ and a promissory note Ex.CW1/5 was executed.
4. The accused then issued the post dated cheques for the principal amounts. The cheques are Ex.CW1/6, Ex.CW1/8, Ex.CW1/10, Ex.CW1/12 and Ex.CW1/14. All the cheques were drawn on Punjab National Bank, Rohini. However, the accused did not pay the monthly interest to the complainant. Whenever the complainant demanded the interest and the principal amount, the accused used to say the she would pay shortly as she would be receiving hefty amount. Finally, when the complainant kept insisting for the payment, the accused asked her to present the post dated cheques for encashment. On presentation, the cheque Ex.CW1/6 was dishonoured vide memo Ex.CW1/7. The cheque Ex.CW1/8 was dishonoured vide memo Ex.CW1/9. The cheque Ex.CW1/10 was dishonoured vide memo Ex.CW1/11. The cheque Ex.CW1/12 was dishonoured vide memo Ex.CW1/13. The cheque Ex.CW1/14 was dishonoured vide memo Ex.CW1/15 and Ex.CW1/16. The complainant then issued a demand notice Ex.CW1/17 dated 12.09.2006 to the accused. The notice was sent through registered post and under postal certificate. The postal receipt is Ex.CW1/18 and the UPC receipt is Ex.CW1/19. However, the accused in response to the notice, sent a reply Ex.CW1/20 and did not make the payment of the cheque amount. C.C. No. 50/1/09 No. 3 of 20 Hence, the present complaint.
5. On being served with the summons, a notice under section 251 Cr.P.C for an offence under section 138 of Negotiable Instruments Act was issued to the accused on 04.10.2007, to which the accused pleaded not guilty and claimed trial.
6. Thereafter, the complainant examined herself as CW1, Sh. Raj Singh as CW2 and Sh. Sandeep Rana as CW3. Thereafter, statement of accused under section 313 Cr.P.C was recorded on 18.11.2009. The accused preferred to lead evidence in her defence and examined herself as DW1.
7. The complainant, during her cross examination, deposed that she was not a money lender. Her husband was a lawyer and the accused alongwith her husband used to come to visit the office of her husband for their cases. The office of her husband was at Azadpur. She did not know till what time her husband had been in the service as legal advisor of the company of the accused. She did not know whether; in the year 20012003, her husband was working as a legal advisor with the said company. She denied that in the year 20012003, her husband was working as a legal advisor in the said company. She did not know whether, during the time of employment of her husband in the said company, there were instances, when the accused alongwith her husband had to go out of station for business purposes and the business was being looked by her husband. She denied that when C.C. No. 50/1/09 No. 4 of 20 the accused used to go out of station for business purposes, her husband used to look after the business of the said company. She deposed that she earned Rs.20,000 - Rs.25,000/ per month from stitching business. She admitted that she was an assessee to income tax. She deposed that she had not maintained any account in respect of any debt which the accused owed to her. She was specifically asked to produce the income tax return in respect of assessment year of 200004. She deposed that she could not produce any income tax return. She deposed that she did not know whether, she had deposited the income tax for the said period. She denied that she had not deposited income tax for the said period. She did not know whether, the promissory notes Ex.CW1/2, Ex.CW1/3, Ex.CW1/4 and Ex.CW1/5 were executed on their respective dates and volunteered, that all these promissory notes were executed on their respective dates. She further deposed that all the transactions with regard to the demand of the alleged loan, execution of promissory notes and handing over the cheques took place on the respective dates as mentioned in the promissory notes. She did not know whether, the accused used to hand over some blank cheques/ blank papers to her husband for meeting financial exigencies. She deposed that she was told by her husband, that the accused needed the money and she handed over the money to her husband in his office. She handed over the money to her husband in the presence of one Sh. Raj Singh and Sh. Sandeep Rana. She further deposed that the promissory notes were C.C. No. 50/1/09 No. 5 of 20 executed in the office of her husband on the respective dates as mentioned on the promissory notes. She further deposed that the cheques Ex.CW1/6, Ex.CW1/8, Ex.CW1/10, Ex.CW1/12 and Ex.CW1/14 were handed over to her husband in the office of her husband. She denied that these cheques were not handed over to her husband in his office. She denied that these cheques were handed over to her husband in the year 200102, when he was working as a legal advisor for the accused and when the accused was out of station for business purposes to meet the financial exigencies. She did not know whether, the accused was not in Delhi from 13.10.2004 to 16.10.2004. She denied that the accused was not in Delhi from 13.10.2004 to 16.10.2004. She further deposed that these promissory notes were in the handwriting of her husband. She denied that these promissory notes bore the signatures of the accused or that she had not signed these promissory notes as executed on their respective dates. She denied that there had been not transaction between her and the accused.
8. CW2, Sh. Raj Singh, deposed that the complainant had advanced friendly loans to the accused on different dates and the same totalled to Rs.3,30,000/. He further deposed that the accused executed and signed four promissory notes in his presence. The same are already Ex.CW1/2 to Ex.CW1/5. These promissory notes were executed by the accused in his presence for the amount received in cash by the accused. He further deposed that in his presence, C.C. No. 50/1/09 No. 6 of 20 the accused issued post dated cheques, which are already Ex.CW1/6 to Ex.CW1/10. He further deposed that he had also signed the promissory notes at point A to A.
9. During his cross examination, he deposed that the loan was advanced around 7.30 pm to 9 pm. Prior to advancement of the alleged loan, the complainant had a talk with the accused in respect of the same. The said talks took place 4 to 5 days prior to the advancement of the loan. He did not know if the complainant was in the business of money landing and volunteered, that this happened for the first time in his presence. The husband of the accused was not present at the time of advancement of loan or in talks prior to advancement of loan. He further deposed that Sh. S. S Dahiya was his nephew and he was on visiting terms with Sh. S.S. Dahiya. The loan was advanced in the office of Mr. S S Dahiya. At the time of alleged advancement of loan, he, Sh. S.S Dahiya, Sh. Sandeep Rana and the complainant were present. He further deposed that at the time of advancement of loan, promissory notes were executed and cheques were handed over. He denied that the accused was not present in Delhi on 15.10.04. He denied that she appeared in office of Sub Registrar, Kanpur on 15.10.04 and left from Delhi on 13.10.2004 by train. The promissory notes were executed and cheques were handed over on the same date, however in respect of the last loan transaction, two cheques of Rs.50,000/ each were given. He admitted that the C.C. No. 50/1/09 No. 7 of 20 promissory notes and cheques were only signed by the accused and no further writing on the same had been made by the accused. The promissory notes were written by Sh. S.S Dahiya and even cheques were filled in by Sh. S.S Dahiya. He could not say why the signatures of the accused were not taken across the receipted (revenue) stamp. He denied that to cause wrongful loss to the accused and consequent gain to the complainant, the promissory note had been fabricated and manipulated by the complainant in connivance and collusion with him, Sh.S.S Dahiya and Sh. Sandeep Rana. He denied that the signatures of the accused had been misused and Sh.S.S Dahiya, being associated with the accused, had taken her signatures on blank documents. He further deposed that Sh. S.S Dahiya was an able bodied man and could come to the court. He denied that Sh. S.S. Dahiya was deliberately not appearing as a witness as the same could have exposed the fraud played by him upon the accused. He could not produce any document to show the solvency of the complainant. He did not know if the accused along with her husband used to travel out of station for business, they used to hand over blank cheques/ documents to Sh. S. S. Dahiya for meeting financial exigencies and volunteered, that no such incident happened in his presence. The cheques were signed by the accused in his presence. The cheques were given one by one and on the last occasion, two cheques were handed over. The accused took out only one cheque from her purpose (purse) and the same was given to the complainant. He C.C. No. 50/1/09 No. 8 of 20 denied that there had been no loan transaction between the complainant and the accused and the promissory notes as well as cheques were forged, fabricated and manipulated documents. He denied that there was no legally recoverable liability of the accused and the cheques were without consideration. He denied that he was deposing falsely at the behest of the complainant, being his maternal uncle.
10. The examination in chief of CW3, Sh. Saneep Rana, is verbatim the same as that of CW2.
11. During his cross examination, he deposed that as Sh S.S. Dahiya was his maternal uncle, he knew Sh. S.S Dahiya since his childhood. He further deposed that he knew the accused as she used to come to the office of Sh. S.S. Dahiya for the cases. He further deposed that there was no discussion with regard to grant of loan in his presence. The loan was advanced in his presence. The loan was advanced on four different occasions. The loan was advanced on four dates mentioned in the affidavit, at 447, Jagdamaba Bhawan. At the time of advancement of loan, Sh. S.S Dahiya, he, the complainant, the accused and Mr. Raj Singh Dahiya were present. The entire loan was disbursed in cash. He denied that Smt. Madhulika was not in Delhi on 15.10.2004. He denied that the accused appeared in office of Sub Registrar Kanpur, on 15.10.2004 and left from Delhi by train on 13.10.2004. He did not know if any disclosure had been made by the complainant before any department/public authority about the alleged loan. At C.C. No. 50/1/09 No. 9 of 20 the time of advancement of alleged loan, promissory note was executed and cheques were handed over. On the date of advancement of alleged loan, cheque for a similar amount was given. He could not say on which date, cheques mentioned in para 3 of his affidavit, were given by the accused. He admitted that the promissory notes and cheques were only signed by the accused and no further writing on the same had been made by the accused. The promissory note was written by Sh. S.S Dahiya and even the cheques were filled in by Sh. S.S Dahiya. He could not say why the signatures of the accused were not taken across the receipted (revenue) stamp. He denied that to cause wrongful loss to the accused and consequent gain to the complainant, the promissory note had been fabricated and manipulated by the complainant in connivance and collusion with him, Sh. S S Dahiya and Raj Singh.
12. The accused, appearing as DW1, deposed that she was a stranger to the complainant and prior to the institution of the present case, had never met the complainant. She had never borrowed any money from the complainant and thus, the plea of the complainant that she had issued post dated cheques and executed promissory notes was false. On 31.12.1996, she and her husband had established a business under the name and style of M/s M.M. Cinearena Pvt. Ltd. Since 1997, the husband of the complainant was their C.A and legal advisor. With the passage of time, their business flourished and on account of work exigencies, she and her C.C. No. 50/1/09 No. 10 of 20 husband had to travel extensively and stay away from Delhi . Thus, they had requested the husband of the complainant to assist them in doing their business and in clearance of bills and other legal requirements. For the said purpose, in good faith, they handed over blank signed papers to the husband of the complainant. The said practice continued for quite some time. On account of trust, she never asked the husband of the complainant about the unutilized cheques as the account of the firm was looked after by her husband. On receipt of demand notice, she recollected that the blank cheques bearing nos. 976825, 976226, 976228, 976837 and 976838 drawn on Punjab National Bank, Rohini were handed over to Sh. S.S. Dahiya, the husband of the complainant for meeting urgent requirements of payment as and when they were away from Delhi. She further deposed that the said cheques had been misused by the complainant for filing the present case. She further deposed that the promissory notes were fabricated and forged. It is clear from the fact that on the date of execution of the said documents, she was not in Delhi. During the said period, she was travelling to Kanpur. The copy of the rail ticket is Ex.DW1/1. A sale deed was executed by her in respect of a property at Kanpur on 15.10.2004 and she had appeared before the office of Sub Registrar on 15.10.2004. A copy of the certified copy of the sale deed is Ex.DW1/2.
13. During her cross examination, she deposed that she had not filed any C.C. No. 50/1/09 No. 11 of 20 document to show that Sh. S.S. Dahiya was her C.A or legal advisor and volunteered, that she could show (the documents). Because her husband left her in the year 2003, she had not filed any proof of stay outside Delhi with her husband from the period of 2004 to 2007. She denied that no blank paper or cheques were handed over to Sh. S.S. Dahiya. She could not show any documents whereby she had handed over blank cheques and papers to Sh. S.S. Dahiya. She had not placed any record of payment to be made by her as urgent requirement of cheque nos. 976825, 976226, 976228, 976837 and 976838. she denied that the cheques in question were handed over to the complainant for making the repayment of amount. She admitted that she ever (never) met the complainant prior to the filing of the present case. She admitted that there was a suit between M.M. Film Arena and Maharaja Whiteline and the same was contested by Sh S.S Dahiya on behalf of her company. She denied that she had issued the cheques Ex.CW1/6, Ex.CW1/8, Ex.CW/10, Ex.CW/12 and Ex.CW1/14 to repay the loan and executed promissory notes Ex.CW1/2 to Ex.CW1/5. She deposed that her date of birth was 18.07.1969. She deposed that her age in the year 2004 was about 35 years. She admitted that in the railway ticket, the age was mentioned as 30 years. She denied that the ticket did not pertain to her. She denied that she was in Delhi on 14.10.2004. She deposed that the distance between Delhi and Kanpur was 700 km approx. She deposed that the document Ex.CW1/3 bore her signatures only but the C.C. No. 50/1/09 No. 12 of 20 contents were not admitted by her.
14. I have heard learned counsels for the parties and perused the record very carefully.
15. The case of the complainant is that the accused, on various occasions as alleged, had taken loan from her. The same totaled to Rs.3,30,000/ and in consideration of the said loan, she executed promissory notes and gave the cheques in question, which were post dated cheques.
16. On the other hand, the stand of the accused is that the husband of the complainant was her advocate and C.A and in that capacity, he obtained certain blank papers and cheques, though she had no liability towards the complainant. She has admitted her signatures on the cheques but, stated that these were blank cheques.
17. However, under sections 118 and 139 of Negotiable Instruments Act, there are presumptions that the cheques were given against liability or for some consideration. However, these presumptions are rebuttable. The onus to rebut these presumptions is upon the accused.
18. From the evidence of the parties, this clearly emerges that there were business/ professional relations between the husband of the complainant and the accused. It is admitted that Sh S.S. Dahiya was acting as an Advocate for the accused and for her company. The stand of the accused is that in that capacity, the C.C. No. 50/1/09 No. 13 of 20 husband of the complainant received certain blank signed papers and cheques, which were converted into the promissory notes and the cheques in question.
19. The complainant in her cross examination, has admitted that her husband was a lawyer and the accused with her husband used to come to the office of her husband for their cases. She further admitted that the cheques Ex.CW1/6, Ex.CW1/8, Ex.CW1/10, Ex.CW1/12 and Ex.CW1/14 were handed over to her husband in the office of her husband. Therefore, the first thing which emerges from the cross examination of the complainant is that she is denying her own stand that the accused had handed over the cheques to her, by stating that the accused had handed over the cheques to her husband. She was also contradicted by CW2 when he stated that the cheques were handed over by the accused to the complainant. On the one hand, the complainant stated that the cheques were handed over by the accused to her, then she stated that the cheques were handed over to her husband.
20. This testimony of the complainant goes to establish that the complainant is in fact ignorant of the fact that when these cheques were handed over and to whom, these cheques were handed over.
21. It is also to be noticed that the complainant has admitted that the promissory notes are in the handwriting of her husband. CW2 and CW3 have also admitted that the promissory notes were written by Sh. S.S Dahiya and even the C.C. No. 50/1/09 No. 14 of 20 cheques were written by Sh. S.S Dahiya. Therefore, in the light of the defence of the accused, that Sh. S.S Dahiya was acting as an Advocate of the accused, these circumstances raise a probability that the cheques were in fact handed over to Sh. S.S. Dahiya, the husband of the complainant, and not to the complainant and therefore, the complainant is in fact not aware about the facts and circumstances in which the cheques were handed over.
22. I also have to notice the contradictions the story of the complainant. The complainant's claim is that at the time of advancement of loan, apart from her and her husband, CW2 and CW3 were also present. However, with regard to the giving and handing over of the cheques, the stand of the complainant, during her cross examination, was that these cheques were handed over to her husband on the dates mentioned in the promissory notes. The complainant denied that these promissory notes were forged, fabricated and manipulated documents. She admitted that the promissory notes were in the handwriting of her husband.
23. CW2 was also cross examined upon these promissory notes. CW2 deposed that he was a witness to the execution of these promissory notes. He admitted that the promissory notes and cheques were duly signed by the accused and no further writing on the same had been made by the accused. He further deposed that the promissory notes were written by Sh. Dahiya and the cheques were filled in by Sh. Dahiya. He could not say why the signatures of the accused C.C. No. 50/1/09 No. 15 of 20 were not taken across the revenue receipt. He denied that the promissory notes had been fabricated and manipulated by the complainant in collusion with him, Sh. S.S. Dahiya and Sh. Sandeep Rana.
24. Once it is admitted that the promissory notes Ex.CW1/2 to Ex.CW1/5 were prepared by Sh. S.S Dahiya, the husband of the complainant, I find it very strange that despite the fact that the person, who is the writer of promissory notes, is a lawyer and is practicing Advocate, he did not take the signatures of the accused across the revenue stamp and none of the witnesses could explain why it was not done.
25. As is evident from the evidence, the complainant in answers to the questions with regard to the handing over of the cheques in question in blank and blank signed papers , stated that she did not know whether these were handed over to her husband or not. The witness CW2 and CW3 have clearly admitted that Sh.S.S Dahiya was able bodied man and could come to the court. Once these specific suggestions were put to the complainant and the complainant showed her ignorance and incapacity to answer these questions due to the lack of knowledge, it was the duty of the complainant to produce into the witness box a person who could have been able to answer these questions. It is more so because, it has been established that there existed a relationship of an advocate and client between the husband of the complainant and the accused and there is a fiduciary relationship C.C. No. 50/1/09 No. 16 of 20 between the husband of the complainant and the accused.
26. It is also to be noticed that the complainant has stated that the cheques were post dated cheques whereas, the CW2 and CW3 during their cross examination have admitted that except the signatures, the entire body of the cheques were filled by the husband of the complainant. Meaning thereby, even the dates upon the cheques were filled by the husband of the complainant and thus, the same cannot be said to be post dated cheques.
27. The next rung of argument of learned counsel for the accused is that the accused had also rebutted the presumption by establishing that the complainant did not have the financial capacity to advance the loan. In this regard, I find that the complainant had stated that she earned Rs.20,000Rs.25,000/ per month from stitching and was an income tax assessee. However, when she was asked to produce her income tax returns, she showed her inability to produce this record. She was again asked whether she could produce the record from the year 2000 2004 and she stated that she could not produce this record. She did not put forward any explanation for her inability to do so. Therefore, the refusal of the complainant to produce her income tax return can be considered to be a probable circumstance pointing towards the fact that the complainant did not produce her income tax returns as, the income tax returns of the complainant could have shown that the complainant did not have the financial capacity to advance the C.C. No. 50/1/09 No. 17 of 20 loan.
28. The next rung of argument of learned counsel for the accused is that on one of the alleged dates of advancement of loan i.e. 14.10.2004, the accused was not in Delhi and thus, the loan on this alleged date could not have been advanced to her. In this regard, the accused appearing as DW1, deposed that during the said period, she was travelling to Kanpur and her rail ticket was exhibited as Ex.DW1/1. She further deposed that a sale deed was executed by her in respect of a property at Kanpur on 15.10.2004 and she had appeared before the office of Sub Registrar on 15.10.2004. She proved the copy of the certified copy of the sale deed as Ex.DW1/2.
29. During her cross examination, she admitted that in the year 2004, her age was 35 years. She denied that the ticket did not pertain to her. She denied that on 14.10.2004, she was present in Delhi. She further deposed that the distance between Delhi and Kanpur was approximately 700 K.m and it takes 7/8 hours to complete the journey between Delhi and Kanpur and same was depending upon the train.
30. Learned counsel for the complainant has contended that the train ticket is a forged document and it stands proved from the fact that in the year 2004, the age of the accused was around 35 years whereas, in the ticket Ex.DW1/1, the age of accused has been mentioned as 30 years. Thus, this ticket C.C. No. 50/1/09 No. 18 of 20 does not establish that the accused travelled upon this ticket.
31. However, I find that the complainant has not assailed the sale deed Ex.DW1/2. This sale deed was executed by the accused on 15.10.2004. It is highly improbable that a person for execution of the sale deed would travel only on 15.10.2004 and it is quite probable that the said person might leave a day early so that for the purpose of execution of this document, he/ she could be at the required place on the required time.
32. This sale deed further indicates another probability. This sale deed was for an amount of Rs.5,00,000/ and there were three vendors, one of them was the accused. Therefore, the share of the accused would at least have been Rs.1,60,000/. It is highly improbable that a person, who is going to receive Rs.1,60,000/ on 15.10.2004, would seek a loan of Rs.50,000/ just two days prior to that.
33. In view of the above, I find that the accused has raised certain probable circumstances; firstly, that the accused and the husband of the complainant were having fiduciary relationship and thus, certain blank signed papers and blank signed cheques might have been handed over to the husband of the complainant by the accused. Secondly, the complainant might not have the financial capacity to advance the loan. Thirdly, the accused, on one of the alleged dates of advancement of loan, was not in Delhi and thus, on the said date, the loan C.C. No. 50/1/09 No. 19 of 20 could not have been advanced to the accused.
34. Once these circumstances are raised then, the presumptions under sections 118 and 139 of Negotiable Instruments Act stand rebutted. Thus, the onus was upon the complainant to prove beyond reasonable doubts that there was no fiduciary relationship between the husband of the complainant and the accused; that the complainant had the financial capacity to advance the loan and had in fact advanced the loan to the accused; that the accused in discharge of the said loan, issued the cheques in question and executed promissory notes. However, the complainant has failed to prove the guilt of the accused beyond all reasonable doubts. The accused is accordingly acquitted. The bail bond stands cancelled. Surety stands discharged. File be consigned to the record room.
Announced in open Court (PARVEEN SINGH)
on 13.04.2012. Admn. Civil JudgecumAddl. Rent
(This judgment contains 20 pages Controller (North West),
and each paper bears my signature.) Rohini Courts, Delhi.
C.C. No. 50/1/09 No. 20 of 20