Delhi District Court
Ranjit Singh vs . on 5 May, 2015
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
CC no. 516/6/14
Unique ID no. 02406R0096052012
Ranjit Singh
s/o Sh. Mahinder Singh
R/o 11/1140, Govind Puri,
Kalkaji, New Delhi. .....Complainant
Vs.
Ajay Patel
S/o Late Sh. Jagrana Patel,
R/o 388B, PocketN,
Sarita Vihar, New Delhi. .....Accused
Date of Institution of complaint : 24.04.2012
Date of Reserving the Judgment : 25.03.2015
Date of Decision : 05.05.2015
Offence Complained of : Section 138 /142 NI Act
Plea of accused : Not Guilty
Final Order : Acquitted
Counsels for the Parties:
Sh. A. K. Rai, Ld. Counsel for the complainant.
Sh. Jatin Sapra, Ld. Counsel for the accused.
CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel
PS Sarita Vihar Page No. 1 of 12
BRIEF FACTS AND REASONS FOR DECISION:
Vide this order, I shall decide the present complaint filed by the complainant under Section 138, Negotiable Instruments Act, 1881 (hereinafter called the NI Act). The complainant has submitted that he approached the accused for purchase of 40 sewing machines and paid a sum of Rs. 4,10,000/ cash in the month of October 2010 and the accused assured the complainant that he would supply the said machines within two months.
2. It is further submitted that after two months, the complainant contacted accused and asked him to supply the machines but the accused avoided the same on one pretext or the other. Thereafter the complainant lodged a written complaint to SHO, P.S. Sarita Vihar against the accused. On intervention of police officials of P.S. Sarita Vihar, the accused issued two cheques bearing No. 069919 for a sum of Rs. 2 lacs and cheque no. 069920 dated 15.3.2012 for a sum of Rs. 2,10,000/ both drawn on Corporation Bank, Sarita Vihar, New Delhi in favour of the complainant.
3. It is further submitted that the accused also assured that the CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 2 of 12 said cheques will be honoured as and when presented it. Initially the complainant presented the cheque No. 069919 for a sum of Rs. 2 lacs with his banker i.e Syndicate Bank, DTC Kalkaji, New Delhi which was duly encashed by the complainant but the cheque No. 069920 dated 15.03.2012 for a sum of Rs. 2,10,000/ drawn on Corporation Bank, Sarita Vihar, New Delhi was dishonoured on 19.03.2012 by the banker of the accused with remarks, "Funds Insufficient".
4. It is further submitted that after dishonour of cheque, complainant contacted accused to apprise him about dishonour of cheque but the accused avoided payment on one pretext or other. When the accused failed to make the payment, the complainant issued a legal demand notice dated 03.04.2012 through his counsel under Section 138 NI Act thereby calling upon the accused to pay the amount of the cheque within a period of 15 days from the date of receipt of the said notice. The accused, however, did not make the payment within the stipulated time. Hence, the complainant has filed the present complaint.
5. The court examined the complainant. After perusing the material available on record, the Court took the cognizance and CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 3 of 12 process was issued against the accused. The accused appeared in the Court. He was released on bail. The notice u/s 251 Cr.P.C. was served upon the accused to which he pleaded not guilty and claimed trial. Accused has taken defence that he has already given a sum of Rs. 1.49 lacs to the complainant and he is not liable to pay the amount due towards the cheque as the same has already been paid.
6. The complainant has examined himself as CW1 to prove his case. The complainant has tendered his evidence by way of affidavit Ex CW1/H, wherein he has reiterated the allegations in the complaint. The CW1 has relied upon the following documents:
a) Complaint to SHO Sarita Vihar is Ex CW1/A.
b) Original statement of accused given before the police officials at PS Sarita Vihar is Ex CW1/B.
c) Cheque bearing no. 069920 dated 15.03.2012 for a sum of Rs. 2,10,000/ alongwith cheque returning memo dated 19.03.2012 are Ex. CW1/C and Ex CW1/D.
d) Copy of legal notice dated 03.04.2012 with postal CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 4 of 12 receipts is Ex. CW1/E and Ex. CW1/F.
7. The witness was cross examined. The complainant did not examine any other witness. The CE was closed vide order dated 10.10.2014.
8. Accused was examined and his statement was recorded u/s 281 Cr.P.C, by putting all the incriminating evidence to him. Accused denied incriminating evidence put to him. Accused has examined himself in his defence as DW1 and his friend Sh. Vinod Joshi as DW2. DE was closed vide order dated 26.02.2015.
9. Final arguments were addressed on behalf of accused. The complainant did not appear to address final arguments despite opportunity given, nor had filed any written arguments.
10. Ld. Counsel for accused has argued that the defence witnesses have proved that the accused has made the payment towards the cheque in question and he is not liable to pay any money to the complainant. It is argued that the accused has been able to prove on the balance of probability that he is not liable to pay any money to the complainant. However, the complainant has failed to prove that the accused is still liable to make the payment towards the cheque.
CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 5 of 12 Therefore, the complaint is liable to be dismissed.
11. I have heard the Ld. Counsel for the accused and carefully perused the material available on record.
12. In the present case, the complainant has contended that he has given a sum of Rs.4,10,000/ to the accused for buying machines, however the accused did not supply the machines. The accused in order to return the advance issued two cheques out of which cheque in question was dishonoured by the banker with the remarks "funds insufficient".
13. The accused has taken defence that he had received a sum of Rs. 4.10 lacs from the complainant towards supply of machines. Thereafter, complainant has filed police complaint. When the complainant filed police complaint, he returned entire money as a sum of Rs. 49,500/ was deposited in the account and cash of Rs. 2 lacs was given in the presence of police and further a sum of Rs. 1,60,500/ was given in the presence of Vinod Joshi.
14. He has further stated that he had given two cheqes as security to the complainant before the transaction and it was agreed that the cheque shall be returned, once the machines are supplied by him.
CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 6 of 12 However, later on he had paid cash for non supply of machines but the complainant did not return the cheques to him. He came to know from bank that the complainant has misused the cheques.
15. I shall now examine the testimony of witnesses to see whether the accused has been able to prove on the balance of probability that the cheque was not issued for any liability.
16. The complainant, during his examination as CW1, has relied upon the statement of accused made before the police officials of PS Sarita Vihar. The statement of accused before police is Ex.CW1/B. The accused has not denied the statement made before the police. The statement of accused Ex.CW1/B would show that in the said statement, the accused has stated that complainant has given a sum of Rs. 4.10 as advance and remaining payment was to be made on delivery. Accused had sold the machinery to some other party and he was ready to return the money for which he has given two cheque number 069919 and 069920 for a sum of Rs. 2 lacs and 2.10 lacs respectively.
17. The complainant had admitted during his cross examination that he had returned the cheque no. 069919 to the accused as the CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 7 of 12 accused had made cash payment towards the said cheque.
18. The accused during his examination as DW1 has placed on record one cash receiving dated 12.07.2011 of complainant wherein complainant has acknowledged receipt of Rs. 2.00 lakhs and he had returned the cheque no. 069919 to the accused. The cash receiving is Ex DW1/A. The complainant has not denied this document as during cross examination of accused, no suggestion has been given to him that the cash receiving dated 12.07.2011 is forged or fabricated or that cash receiving was not signed by the complainant. Thus, it is admitted case of parties that a sum of Rs. 2.00 lakhs was paid to the complainant on 12.07.2011 and the complainant had returned the cheque bearing no. 069919 to the accused.
19. Now, coming to the remaining amount Rs. 2.10 lacs and the cheque in question i.e cheque bearing no. 069920 for a sum of Rs. 2.10 lakhs. During cross examination of complainant, he was shown one copy of receipt mark A of deposit of sum of Rs. 49,500/ in account maintained with Syndicate Bank, Nehru Place in his name. The complainant has admitted that he has received the said amount in his account.
CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 8 of 12
20. Perusal of receipt mark D1 would show that the amount was deposited in the account of complainant on 08.12.2011. However, complainant has further voluntarily stated that the amount was not deposited in his account towards this transaction but it was towards some other transaction. The complainant, however, did not explain what was that other transaction.
21. Rather, the complainant during his further cross examination, has stated that there was no monetary transaction with the accused except the present dispute of Rs. 4.10 lacs. Thus, the complainant has admitted during his cross examination that he had only one transaction with the accused which is the transaction in question. The contention of complainant that sum of Rs. 49,500/ was deposited in his account towards some other transaction is not acceptable. Further, during cross examination as DW1 one suggestion has been given to the witness that he is liable to pay a sum of Rs. 1,60,500/ to the complainant which itself is suggestive of the fact that sum of Rs. 49,500/ was deposited in the account of complainant towards the cheque in question. This court is of the opinion that the amount of Rs. 49,500/ was deposited by the accused in the account of the complainant CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 9 of 12 towards the cheque in question.
22. Now, coming to remaining balance payment of Rs. 1,60,500/ towards the cheque in question. The complainant has denied that he has received any payment of Rs. 1.50 lakhs in the presence of Vinod Joshi. Accused has examined his friend Vinod Joshi as DW2 prove that he has made cash payment of Rs. 1.50 lakhs to the complainant towards the cheque. DW2 Sh. Vinod Joshi has deposed that about 45 years ago, he was sitting in the office of Ajay Patel who informed him that Ranjit Singh is about to come to receive his payment. Ranjit Singh came at H Block market in Indica car and he alongwith Ajay Patel sat in his car and sum of Rs. 1.50 lakhs was paid to Ranjit Singh by Ajay Patel. When Ranjit Singh counted cash, it was Rs. 500 less to Rs. 1.50 lakhs. Ranjit Singh told Ajay Patel in his presence that he will return the cheque once the balance payment is received.
23. The witness has been cross examined by the Ld. Counsel for the complainant and during cross examination, no material contradiction is found in his statement so as to make his statement unreliable and untrustworthy. The accused has been able to prove on the balance of probability that he has made payment of Rs. 1,49,500/ CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 10 of 12 to the complainant by way of cash towards the cheque.
24. It would not be out of place to mention that the amount and the signature on the cheque in question has been filled with different ink and the name and the date on the cheque has been filled with some other ink.
25. It is settled position of law that the accused has to discharge the initial burden by creating a doubt on the story of complainant. The accused has been able to show on the balance of probability that he has deposited a sum of Rs. 49,500/ in the account of complainant and a sum of Rs. 1,49,500/ was given to complainant by way of cash and the amount was deposited/given towards the cheque in question.
26. In the present case, the accused, on the balance of probability, has created a reasonable doubt on the story of the complainant. It is under doubt whether the accused was liable to pay any amount to the complainant. Now, the burden was shifted upon the complainant to prove its case beyond reasonable doubts. The complainant has failed to bring any material on record to show that he has not received any money from the accused towards the cheque in question.
27. In the light of the discussion hereinabove, I am of the CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 11 of 12 considered opinion that a reasonable doubt has been created on the story of the complainant. In the present case, it is not proved by the complainant that complainant has advanced loan of Rs. 1,45,500/ to the accused and that the cheque in question has been issued towards repayment of alleged loan. Therefore, the accused can not be made liable to make any payment to the complainant. The accused has shown, on the balance of probability, that the cheque was not issued to discharge any liability. The benefit of doubt is given to the accused. Accordingly, accused stands acquitted.
Pronounced in the open Court (Neha) today on 5th May, 2015 MM03 (South East) Saket, New Delhi CC No. 516/6/14 Ranjeet Singh Vs Ajay Patel PS Sarita Vihar Page No. 12 of 12