Delhi District Court
Mukesh Khurana vs Vishal Gupta on 11 February, 2020
IN THE COURT OF MS ALKA SINGH : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
MUKESH KHURANA VS VISHAL GUPTA
CC NO. 10356/2017
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 10356/2017
(2) Name of the complainant : Mukesh Khurana
S/o Sh R P Khurana
R/o B-7/100, Safdurjung Enclave
Extension, New Delhi-110029
(3) Name of the accused, : Vishal Gupta
parentage & address S/o Sh A K Gupta
R/o 11/102, East End Road, Mayur
Vihar Phase I, New Delhi
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : ACQUITTED
(7) Date of Institution : 24.12.2008
(8) Date on which reserved for
judgment : 21.01.2020
(9) Date of Judgment : 11.02.2020
Mukesh Khurana vs Vishal Gupta
CC NO. 10356/2017 Page 1 of 14
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that during the course of business transaction, complainant paid the accused an advance of Rs50 lacs on the assurance of accused that in case he is not able to fulfill the terms of said transaction, he will be liable to return the same. Towards discharge of the dues on the account of said transaction, accused issued a cheque of Rs50 lacs dated 21.05.2008 drawn on ICICI Bank Ltd., branch Nehru Place, New Delhi which on presentation was dishonoured with reason "Payment Stopped by the Drawer" vide memo dated 08.11.2008. Thereafter, on failure of accused to pay the cheque amount, a legal demand notice dated 17.11.2008 was sent to the accused through registered post & UPC which was deemed to be duly served upon accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW1/E was filed by the complainant. In his affidavit of evidence Ex.CW1/E, the complainant reiterated all the averments made in its complaint and relied on documents ExCW1/A to ExCW1/D which are original cheque in question, its return memo, office copy of legal notice and postal receipt.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 22.09.2017 to which the accused pleaded not guilty and claimed trial. On the basis of the defence stated by the accused in notice and on the basis of the line of defence taken by him, the oral application of Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 2 of 14 accused U/s 145(2) N I Act was allowed for cross examining the complainant & his witnesses.
4. At the stage of examination, the complainant adopted his pre- summoning evidence as his examination-in-chief and thereafter, accused was provided with the opportunity to cross examine him. At the stage of the cross examination the complainant reiterated the same facts of his complaint and additionally it was also stated that the accused approached him for a loan of Rs01 crore in January 2008, however, a loan only of Rs50 lacs was advanced to the accused against some property ie the plots in Mayur Vihar & Noida which were shown to him by the accused. The witness again stated that he was shown only the documents of these properties. He further stated that the accused took money from him on the pretext that he will return the same from the profits earned after selling the property. The witness also clarified that the same was not a friendly loan as he was assured of some profit. It was stated by the witness that he gave the amount of Rs50 lacs approx. in February 2008 but he does not remember the exact date. The witness stated that he cannot tell the exact location of the above stated properties as he was only shown the documents but can bring the copies of the papers of the said properties. The complainant also stated very particularly that the entire amount of Rs50 lacs was paid in cash and no amount for the said purpose was withdrawn from the bank as the entire amount was lying at his home. It was also avouched by the witness that some documents were signed when he gave Rs50 lacs to the accused and also stated that he does not remember as to what was his income at the relevant period. In his further cross examination, he produced Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 3 of 14 the documents which were then exhibited ExCW1/X1 ie the copies of property papers. The witness also avowed that he was promised of profit of approximately Rs01-1.50 crores by the accused and the same was to be paid after six months of the advancement of loan. He further stated that accused informed him that he will be getting profit of Rs20 crores after selling the properties out of which Rs01-1.50 crores will be paid to him and thereafter, the accused handed over him the documents as security. The witness also stated that though he has not seen all the properties but has seen the property situated in Ashok Nagar. He also said that though he does not remember the address of the accused but he visited the house of accused for more than five times and had also met his wife, however, he said that he cannot tell where the accused was presently residing.
5. Complainant also avouched qua one receipt which was issued by the accused when Rs25 lacs was paid to him and that when he paid another Rs25 lacs to the accused, then one agreement was executed but both these receipts & agreement are not traceable. Here a departure was made by the complainant for his earlier statement and he stated that the first installment of Rs25 lacs was given to the accused in February 2008 and the second installment of Rs25 lacs in the month of March 2008.
6. Again, the witness stated that he had now traced the receipt regarding the receiving of Rs25 lacs and the same was placed on record, the same was said to have been signed by accused on 27.03.2008. It was marked as Mark X2. The complainant replied affirmatively to the suggestion that the cheque in question is not Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 4 of 14 mentioned in the said receipt Mark X2. The witness also denied all the suggestions having adverse inferences.
7. The accused was then called upon to explain the incriminating circumstances appearing in evidences against him as is mandated by Section 313 (1)
(b) Cr.P.C., whereby the accused stated that he only issued a security cheque to the complainant but complainant did not pay him any amount and therefore, the transactions could not take place. He also denied, to have received the legal demand notice stating that the address mentioned on the legal notice is incorrect address and he does not reside at the said address. He then denied, to have any legal liability to pay the cheque amount to the complainant.
8. The accused further desired to examine himself as the witness after moving the application u/s 315 of Cr.P.C. which was allowed in order to enable the accused to avail every opportunity to prove his case based on his defence so as to avoid any chances of injustice being meted out to him. In his examination in chief, he stated that he was in need of Rs50 lacs for which he approached the complainant and requested for providing a loan of Rs50 lacs on which the complainant demanded original documents of his property & one undated cheque of Rs50 lacs as security. He also stated that a receipt was also taken from him which is already Mark X2 and the same is in his handwriting and bears his signatures. The said document was then exhibited as ExDW1/A. It was also stated by the accused that he wrote the amount of Rs25 lacs and the complainant told him that the receipt for remaining Rs25 lacs will be executed after payment of entire amount of Rs50 lacs, however, the complainant Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 5 of 14 did not give him any amount which is why he stopped the payment of cheque in question. He again reiterated the fact that he did not receive the legal demand notice and does not have any liability to pay the cheque amount to the complainant.
9. Thereafter, the accused was not cross examined despite opportunity being given to complainant but later on another opportunity was granted to complainant U/s 311 CrPC for cross examining the accused.
10. In his cross examination conducted by the counsel for the complainant, the accused stated that he never had friendship with the complainant, however they were maintaining good relationship. He stated that the Noida property does not belong to him but he is in the possession of the property situated at New Ashok Nagar. After he was shown page no. 77 of ExCW1/X1, he said that the document does not concern him nor any FIR has been registered with respect to New Ashok Nagar property and also showed his ignorance if any other FIR has been registered against him in relation to other properties. He said that he does not remember whether he was maintaining other bank accounts at that time or not and whether he received any text or SMS alert from the bank when the cheque was dishonoured. He also volunteered to say that he himself stopped the payment of cheque amount. After the witness was shown a document Mark CW/DW1, he denied, to have signed the same and that the corrections on the page were not done by him nor the same is in his handwriting. He also said that presently there is no other case U/s 138 N I Act pending against him but earlier there were. The witness was also shown copy of FIR which was exhibited as ExCW/DW2 but accused denied, to have any knowledge of such FIR.
Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 6 of 14
11. The witness was again shown a document ExCW/DW3 and he replied affirmatively when he was asked whether he filed the petition for quashing the above mentioned FIR in High Court but denied, to confirm his signatures on the said quashing petition as he was only made a party to such petition. The witness confirmed the genuineness of document ExCW1/X1 and said that he did not sent any written communication to complainant regarding return of said original documents. Thereafter, he denied all the suggestions unfavourable to him.
12. Matter was then put for final arguments.
13. At the stage of final arguments, it was argued by the counsels for complainant Sh Gaurang Gupta & Sh Pankaj Aggarwal that the accused has admitted his signatures and issuance of cheque in his defence at the stage of notice framing. All the revisions & appeals filed by the accused have been dismissed and it has been proved that the summons were served to the accused as the same were received by the wife of the accused. As far as the plea of the accused is concerned that he did not receive the legal demand notice, the counsel relied upon the judgment of CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007).
14. Further it was also argued that the receipt is hand written and it is also written on the said receipt that accused had already received Rs25 lacs for which the property papers were kept as security, the contents of which have already been admitted by the accused. The counsel also argued that the complainant has proved his case. Further when a specific question was asked to accused regarding stop payment Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 7 of 14 directions, he could not bring the instructions allegedly issued by him to the bank nor confirm that he was maintaining proper balance in his account.
15. It was argued by the counsel for the accused Sh Naveen Singla that the complainant has not mentioned any date etc. when the loan was advanced to the accused or when the impugned cheque was given and it is already written in the complaint that the cheque was given as security. Thereafter, the counsel also indicated towards the cross examination of the complainant and said that the entire cross examination is full of contradictions as at one point, he said that the loan amount was to be returned within six months out of profits but the said fact of profits has never been stated earlier by him anywhere. Moreover, if the loan was to be returned within six months as per the version of the complainant, it was advanced in February 2008, then why did he filed this case on the basis of undated cheque in the month of May itself. Further several additional facts also emerged in the cross examination wherein he said that the payment of Rs50 lacs was made in two installments to the accused but in the complaint, he stated that the entire payment was made in single transaction. It was also pointed out by the counsel that the fact of any receipt or agreement as stated by the complainant in his cross examination is not mentioned in his complaint. The counsel also pointed out another contradiction whereby it was stated by the complainant that the accused asked for a loan but in his complaint, he stated that the same was for business transaction. It was also argued that the claim of the complainant regarding whole amount of Rs50 lacs being paid in cash is not probable as no one would keep such huge amount in house. He further said that as per Mark CW/DW1, Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 8 of 14 the accused had only taken a sum of Rs40 lacs and even the receipt does not mention the issuance of cheque. Hence, the complainant has failed to prove his case beyond reasonable doubts and accused is liable to be acquitted.
16. The counsel for the complainant by rebutting the arguments advanced by opposite counsel stated that it had already been clarified in the complaint itself that the loan was given for business transaction. Further, if the accused never demanded any loan, then why were all the documents given to the complainant and were never demanded back by the accused. As far as the amount written in the receipt is concerned, it was received by the accused as against the property mentioned therein and the cheque in question was issued afterwards towards the entire liability. He also argued that the legal notice was served on the accused because it was sent on the address provided by the accused himself.
17. Arguments advanced by accused heard. Case file perused meticulously.
18. Now, this Court shall deal with the defences of the accused one by one while also appraising the evidences simultaneously.
19. The accused took two defences, firstly that he did not receive the legal demand notice and secondly that he did not receive the loan amount of Rs50 lacs.
20. The first plea of accused that he did not receive the legal demand notice is not tenable by virtue of judgment of CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), in which the Hon'ble Apex Court has held :-
"Any drawer who claims that he did not receive the Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 9 of 14 notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
21. Therefore, even if the legal demand notice was not received by the accused, he did receive the summons informing him about the present case and the claim raised against him.
22. It is the case of the complainant that a loan of Rs50 lacs was advanced to the accused against certain properties, for business purposes in cash on which the entire premises of the case is based. This point has been vehemently contested by the accused that he did not receive any loan amount from the complainant. To bring home its case, the first piece of evidence relied upon by the complainant are the photocopies of the property documents allegedly handed over to him by the accused against the security of which Rs50 lacs was advanced to the accused. In the course of further evidences, the other document which was produced and relied upon by the complainant is the receipt issued by the accused which was firstly Mark X2 but was exhibited as ExDW1/A later in time when the same was admitted by the accused during his examination in chief.
Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 10 of 14
23. The third piece of evidence relied upon by the complainant is the photocopy of Memorandum of Understanding Mark CW/DW1 which allegedly bears the signatures of accused and as per which a loan of Rs40 lacs was taken by the accused. It is pertinent to mention here that the entire contents of the said Memorandum is printed but the amount of Rs40 lacs is handwritten. In the last para of the said Memorandum, the address of the property against which the loan of Rs40 lacs is given is also handwritten. Further the amount of Rs40 lacs (handwritten) is a correction over the original amount of Rs50 lacs (printed). This piece of evidence is liable to be discarded as being the secondary evidence, the primary evidence of which has neither been produced nor the same being proved otherwise as per the provisions of Sections 63 r/w 64 of Indian Evidence Act.
24. Thus, now the remaining evidences ie the photocopies of the property papers ExCW1/X1 (colly) (OSR) and the receipt ExDW1/A, require the consideration of this court in determining whether, or not the same could be said to have been proved.
25. Though it is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act and even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon (M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39). However, the same being rebuttable presumption, the accused is only required to show a probable defence and the same being a complaint case, the burden of proving the case beyond Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 11 of 14 reasonable doubts is entirely on the complainant throughout the trial. Thus, considering the evidences produced by the complainant, the only liability which the complainant can prove in favour of himself and against the accused is the sum of Rs25 lacs. In view of the same, the judgment of the Delhi High Court can be cited here namely M/s Alliance Infrastructure Project Pvt Ltd vs Vinay Mittal 2010 SCC Online Del 182 where the question which comes up for the consideration was as to what the expression "amount of money" means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of part payment made by him, after issuing but before presentation of the cheque in question. No doubt, the expression "amount of money" would mean the amount of cheque alone in case the amount payable by the drawer, on the date of presentation of cheque, is more than the amount of the cheque but can it be said the expression "amount of money" would always mean the amount of cheque, even if the actual payment made by him towards discharge of debt or liability in consideration of which the cheque in question was issued. If it is held that the expression "amount of money" would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the admitted amount payable by him to the payee of the cheque. Inter alia if the drawer of the cheque is made to pay more than the cheque amount actually payable by him the inevitable result would be he will have to chase the payee of the cheque to recover excess amount paid by him.
26. Drawing on the same analogy, it can be held that since the only liability which the complainant could prove as against the accused is the sum of Rs25 lacs, it Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 12 of 14 would rather become unjustifiable if the accused is held liable for the cheque amount of Rs50 lacs which is over & above the proven liability.
27. Further, it is for the court to presume that a negotiable instrument was for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. But nonetheless a blanket protection of the said presumptions should not be afforded by the complainant if he fails to prove his case. As in the present case, there are various instances where the statements of the complainant were contradictory, in addition to the new facts stated by him every now & then.
28. Moreover, the complainant has not been successful in proving his capacity that a huge sum of Rs50 lacs was given to the accused that too in cash, also Section 138 N I Act must not be made a tool for recovering any accounted sum of money based on dubious transactions.
29. Apart from above, certain other documents were produced by the complainant such as the copy of FIR ExCW/DW2 wherein the accused was also named, a petition instituted against him in Delhi High Court ExCW/DW3 and ExCW/DW4 ie kalandra filed against him. Though these documents bear no connection with the present case, the same might have been filed to show the bad character of the accused and to reassert the point that he is a habitual offender, therefore, not a trusted witness. However, in a criminal proceedings, bad character of Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 13 of 14 the accused is not relevant as per Section 54 of Indian Evidence Act.
30. Furthermore, it is also a cardinal principle of the criminal justice that benefit of doubt should always go to the accused and not otherwise.
31. In view of the above discussions and reasons, this Court is of the opinion that the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by preponderance of probabilities, whereas the complainant has failed to prove its case beyond all reasonable doubts. Resultantly, this court finds the accused Vishal Gupta s/o Sh A K Gupta not guilty for the offence punishable U/s 138 N I Act. Hence, he stands acquitted.
32. Further, accused is directed to furnish bail bond and surety bond in the sum of Rs. 20,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon him.
Digitally signed by
33. File be consigned to Record Room after due compliance. ALKA ALKA SINGH SINGH Date:
2020.02.11 Announced in the open court 16:59:28 on 11.02.2020 +0530 (ALKA SINGH) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
(ALKA SINGH) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Mukesh Khurana vs Vishal Gupta CC NO. 10356/2017 Page 14 of 14