Delhi District Court
Cc No. 7883 Of 2021 Rakesh Kumar vs . Ayaz Usmani @ Raju Page No.1 on 16 March, 2023
CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No.: CC NI ACT/7883/2021
RAKESH KUMAR ... Complainant
Versus
AYAZ USMANI @ RAJU ...Accused
1. Name & address of the complainant: SH. RAKESH KUMAR
R/O H No. B258/1, Plot No.3,
Dharam Shala Road, Swaroop
Nagar, Delhi110042
2. Name & address of the accused : AYAZ USMANI @ RAJU
R/O H No. 83, Gali No.4, Gautam
Clinic Wali Gali, Bhalaswa
Colony, Bhalaswa Village, Jhangir
Puri, Delhi110033
3. Offence complained of :
U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 28.02.2023
6. Date of Institution of case : 09.10.2021
7. Date of decision of the case : 16.03.2023
JUDGEMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant Sh. Rakesh Kumar (hereinafter referred to as the 'complainant') against accused Sh. Ayaz Usmani @ Raju, (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that in September, 2016, the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:04:46 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.2 accused approached the complainant for availing friendly loan of Rs. 1 Lakh for 6 months, citing some urgent need for business purpose and on his request, the complainant gave him this amount of Rs. 1 lakh in cash on 24.09.2016. It is further stated that thereafter, again in January 2017, the accused approached the complainant for availing Rs. 2 lakhs as his Bhabhi was contesting MCD Election in the year 2017, and the accused assured to repay the entire amount of Rs. 3 lakhs within 2 years, thus, the complainant after arranging the amount from his brother Sh. Naresh Kumar and his wife Mrs. Lakshmi gave this amount of Rs. 2 lakh in cash to the accused. It is stated that in order to discharge his liability for the amount advanced to him by the complainant, the accused issued one cheque bearing No. 607930 dated 18.06.2021 for a sum of Rs. 3 lakhs drawn on ICICI Bank, Rohini, Sector 9 New Delhi (hereinafter referred as the 'cheque in question') in favor of the complainant. When the said cheque was presented by the complainant, the same was dishonoured for the reason "funds insufficient" vide return memo dated 21.06.2021 and 13.08.2021. The complainant thereafter, sent a legal demand notice dated 07.09.2021 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 09.10.2021 and prayed that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881 and fine equivalent to double the cheque amount be imposed upon the accused.
3. Summoning of accused: This court summoned the accused after hearing the arguments at the stage of presummoning vide order dated 18.02.2022 and the accused entered appearance in the present case on 02.09.2022 and he was admitted to bail vide same order.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2023.03.16
16:05:01 +0530
CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.3
4. Notice: The court has framed notice of accusation under Section 251 Cr.P.C. against the accused pursuant to arguments being advanced on the point of consideration thereof on 29.11.2022. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused did not plead guilty. In his defence, he stated that he had taken Rs. 1 Lakh from the complainant through one of his friend namely Sh. Rakesh Kumar around 3 years back, which he had repaid after 8 months to Mr. Rakesh Kumar and he demanded return of his cheque from his friend Mr. Rakesh Kumar who told him that the same was misplaced. He further stated that the complainant's name is also Mr. Rakesh Kumar and his friend's name is also Sh. Rakesh Kumar and his friend namely Sh. Rakesh Kumar is also resident of Swaroop Nagar. On the same date, the statement of accused for admission / denial was recorded U/S 294 Cr. P.C, wherein he admitted the correctness of dishonour memo, pursuant to which the bank witness mentioned at Sr. No. 2 & Sr. No.3 in the list of witness filed by the complainant were dropped.
6. Evidence on behalf of complainant: To prove his case, the complainant has examined himself as CW1. He has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit EX. CW1/N wherein he has averred the same facts as are averred in the complaint. To prove his claim, the complainant has filed Mark CW1/A the copy of his Aadhar Card, EX. CW1/B the original cheque in question dated 18.06.2021, EX. CW1/C the original return memo dated 21.06.2021, EX. CW1/D the original return memo dated 13.08.2021, EX. CW1/E the legal demand notice dated 07.09.2021, postal receipts EX. CW1/F & G, tracking report EX. CW1/H & EX. CW1/J, returned envelopes EX. CW1/I & EX. CW1/K, EX. CW1/L the certificate U/S 65 B of Indian Evidence Act and EX. CW1/M the original Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:05:06 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.4 complaint. Thereafter, this witness was subjected to crossexamination.
7. During his crossexamination, this witness stated that he is running a whole sale stationary shop and that he is 12 th Pass and earn around Rs. 12 lakhs per annum. He stated that he had extended loan to 12 persons in the last 56 years which he has extended in his personal capacity. He stated that he has extended the loan in the present transaction, to the accused after borrowing money from his brother and sisterinlaw (bhabhi). He stated that his brother works with him and his Bhabhi is a house wife. He stated that he knows the accused since the year 2015 through one of his friend namely Sh. Duli Chand, who is the neighbour of the accused. He stated that he has been using android phone since the year 20142015 and also using whatsapp since then and that he does not remember whether he had ever talked to the accused over whatsapp. He denied the suggestion that he never knew the accused personally or maintained any friendly relations with the accused. He stated that he knows Mr. Rakesh Kumar S/O Sh. Ami Chand who is his neighbour. He admitted that he has also filed a case U/S 138 of NI Act against said Mr. Rakesh Kumar S/o Sh. Ami Chand. He also admitted that he has also sent a recovery notice to the fatherinlaw of said Sh. Rakesh Kumar S/o Sh. Ami Chand. He stated that he had given personal loan to the said Sh. Rakesh Kumar and his fatherinlaw collectively. He again stated that he extended the loan only to Sh. Rakesh Kumar S/o Sh. Ami Chand. He denied the suggestion that the cheque in question was handed over to him by Sh. Rakesh Kumar S/O Sh. Ami Chand and not by the accused. He also denied the suggestion that he only extended loan of Rs. 1 Lakh to the accused through Sh. Rakesh Kumar S/O Sh. Ami Chand. He also denied the suggestion that he demanded a security cheque of accused from said Sh. Rakesh Kumar S/O Sh. Ami Chand. He also denied the suggestion that when Sh. Rakesh Kumar S/O Sh. Ami Chand demanded return of the security cheque of the accused, he refused to return the same Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:05:12 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.5 and told Sh. Rakesh Kumar S/O Sh. Ami Chand to clear his own liability first. He also denied the suggestion that he did not hand over any amount to the accused directly and also denied that after the receipt of the legal demand notice, the accused called him but he refused to talk to the accused and stated that he made call to the accused. He admitted that he has extended two personal loans i.e. of Rs. 1 Lakh and Rs. 2 Lakhs to the accused and that both these loan transactions with the accused were in cash. He deposed that he did not get any document signed from the accused with respect to these loan transactions. He stated that no one was present at the time of extending aforesaid two loans to the accused and that no interest was agreed to be paid. He stated that he does not remember whether he used to give interest receipts to said Sh. Rakesh Kumar S/O Sh. Ami Chand. He stated that he files Income Tax Returns but he does not remember since when he has been filing his ITR. He stated that at the relevant time when he extended said two loans to the accused, he filed his ITR and he can submit the same in the court. He stated that he has not mentioned about the said two loan transaction in his ITR. He stated that he does not have any money lending license to extend loan to persons. He denied the suggestion that when he presented the cheque there was no existing legal liability of accused towards him. He also denied the suggestion that he has misused the security cheque of the accused given to him. He admitted that he has filled the amount and date in the cheque in question. He admitted that the hand written receipt Mark CW1/D1 & CW1/D2 print out of which have been taken from the mobile phone of the accused, are in his hand writing, but he stated that these receipts pertains to the committee and the same were never given to accused. He stated that he does not remember as to whom, he had given the same. He denied the suggestion that these receipts were given by him to Sh. Rakesh Kumar S/O Sh. Ami Chand. Thereafter, CE was closed vide separate statement of the complainant.Digitally signed by AISHWARYA
AISHWARYA SHARMA
SHARMA Date:
2023.03.16
16:05:17 +0530
CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.6
8. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 06.02.2023, wherein he initially admitted that in September, 2016, he approached the complainant for availing friendly loan of Rs. 1 Lakh for 6 months, citing some urgent need for business purpose and on his request, the complainant gave him the amount of Rs. 1 lakh in cash on 24.09.2016.
Thereafter, he stated that he had taken this amount from some other person namely Sh. Rakesh Kumar S/O Sh. Ami Chand and not the complainant. He denied that in January 2017, he again approached the complainant for availing Rs. 2 lakhs as his Bhabhi was contesting MCD Election in the year 2017 with the assurance to repay the entire amount of Rs. 3 lakhs within 2 years, thus, the complainant gave this amount of Rs. 2 lakh in cash to him, after arranging the same from his brother Sh. Naresh Kumar and his wife Mrs. Lakshmi. He also denied that in order to discharge his liability, he issued the cheque in question bearing No. 607930 dated 18.06.2021 for a sum of Rs. 3 lakhs drawn on ICICI Bank, Rohini, Sector 9 New Delhi i.e. EX. CW1/B, in favor of the complainant. He stated that before March, 2017, he had returned the amount of Rs. 1 lakh to Sh. Rakesh Kumar S/O Sh. Ami Chand and he did not give the cheque in question to the complainant. He stated that he had given the same to Sh. Rakesh Kumar S/O Sh. Ami Chand. He stated that he even demanded return of his cheque from Sh. Rakesh Kumar S/O Sh. Ami Chand who assured to return him the same after taking it from Sh. Rakesh Kumar S/O Sh. Atma Prakash, i.e. the complainant as Sh. Rakesh Kumar S/O Sh. Ami Chand had given his cheque to the complainant as security as he had given the amount of Rs. 1 lakhs to the accused, after taking it from the complainant. He admitted that when the said cheque was presented by the complainant, the same was dishonoured for the reason "Funds insufficient" vide return memo dated 21.06.2021 i.e. EX. CW1/C and return memo dated 13.08.2021, EX. CW1/D. He admitted receiving of the legal demand Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:05:22 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.7 notice dated 07.09.2021 U/S 138 of the N.I. Act i.e. EX.CW1/E at address C842, Ist Floor, Jahangirpuri, Delhi 110033 and he got to know about this fact as he had received the legal demand notice from the counsel of complainant on his WhatsApp No.9873986880. He admitted his signatures on the cheque in question. He denied filling of particulars on the cheque in question. He also stated that the complainant has his own dispute with Sh. Rakesh Kumar S/O Sh. Ami Chand due to which he has filed this complaint against the accused after 2 years of issuance of cheque in question. He admitted knowing the complainant and stated that he had only met the complainant once through Sh. Rakesh Kumar S/o Sh. Ami Chand and that their meeting was regarding the loan of Rs. 1 Lakh advanced to the accused. He stated that he intends to lead defence evidence.
9. Evidence on behalf of accused: In his defence, the accused has himself as DW1 and has adopted his statement made U/S 313 Cr. P.C as his examinationin chief. Thereafter, he was subjected to cross examination. During his cross examination, he stated that he knows Sh. Rakesh Kumar S/O Sh. Ami Chand, who lives in Swaroop Nagar, since the year 2010. He stated that the complainant is a Property Dealer and is running his business from his office in Swaroop Nagar. He stated that he does not know whether complainant runs stationary shop or not. He also stated that he does not know as to since when Sh. Rakesh Kumar S/O Sh. Ami Chand, knows the complainant. He stated that his Bhabhi contested the MCD Election held in the year 2017, on the Ticket of Aam Admi Party. He stated that he is 9th pass and have been doing screen printing work since 1998 and he is having monthly income of Rs. 30,000/ to Rs. 40,000/. He stated that the distance between his house and complainant's house is 56 kms. He denied the suggestion that he was introduced to complainant through Duli Chand. He stated that he had visited the complainant's office situated at Yadav Market Road, Swaroop Nagar. He denied the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:05:26 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.8 suggestion that both loans were given to him in said office. He stated that he cannot say the month and date when he demanded first loan. He stated that he demanded back his cheque from his friend Rakesh Kumar S/O Ami Chand around February 2017. He further stated that he never visited the house of Rakesh Kumar S/O Ami Chand. He stated that his friend Rakesh Kumar S/O Ami Chand visited his house twice after filing of this case and that Rakesh Kumar S/O Ami Chand never visited his house before filing of present case. He stated that his friend Sh. Rakesh Kumar S/O Sh. Ami Chand used to visit his factory. He stated that he had neither mentioned on the front side nor on the back side of the cheque that it was being given for the security purpose. He stated that he had not demanded any written document at the time of entrusting the cheque in question to his friend Rakesh Kumar S/O Ami Chand and thus, he stated that he cannot produce any written document/ acknowledgement in regard of repayment of Rs. 1,00,000/. He stated that he has filed his income tax return till 2019 and that he had not shown the repayment of loan of Rs. 1,00,000/ in his income tax return. He stated that he had not made any complaint before any authority regarding non returning of his cheque. He stated that he had not given any instruction for stop payment of the cheque in question to his concerned banker. He stated that he did not make any complaint to any authority against the complainant regarding non returning of the cheque in question till date. He also stated that he has not filed any reply to the legal demand notice and stated that after receiving notice, he talked to the complainant once. He also stated that at the time of receiving the legal demand notice, he came to know that one case was also filed by the complainant against his friend Rakesh Kumar. He denied the suggestion that he borrowed first time Rs. 1,00,000/ and second time Rs. 2,00,000/ from the complainant and in order to discharge the said liability, he issued the cheque in question. He also denied the suggestion that he has not paid a single Rupee for repayment of said two loans.Digitally signed by AISHWARYA
AISHWARYA SHARMA
SHARMA Date:
2023.03.16
16:08:38 +0530
CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.9
10. To establish his defence, the accused has also examined his friend namely Sh. Rakesh Kumar as DW2. This witness deposed that he is residing at H.No. K 123, Gali No. 23, Swaroop Nagar, Delhi 110042 since his birth and his copy of his Aadhar Card is EX. DW2/1 (OSR). He stated that he knows the accused since the year 2010 and he is having friendly relations with the accused and that he had some financial transactions with complainant Sh. Rakesh Kumar. He stated that the accused told him that he is in need of some money, thus, he got him extended a loan of Rs. 1 lakh @ 3 % interest from the complainant. He stated that complainant asked him to give one cheque for security purpose, which was given by this him to the complainant. He stated that thereafter, the accused gave him the full payment of Rs. 1 lakh, which he handed over to the complainant in December, 2017 and thereafter, he demanded back the security cheque from the complainant upon which the complainant stated that he will return the same and that he is busy, but he did not return the same despite several demands. He stated that the complainant has also filed one case against him as they had some financial transactions. This witness had also brought two receipts and stated that the same were issued by the complainant with respect to the loan transaction of Rs. 1 Lakh and the copy of the same is EX. DW2/2 (OSR) and EX. DW2/3 (OSR).
11. During his crossexamination, this witness stated that he is 5th pass and doing trading business. He stated that he does not know the name of wife and father of the accused and also does not know the Jahangir Puri address of the accused. He stated that accused never visited his house though, he visited the house of the accused many times. He stated that accused first time demanded money in the year 2015. He stated that he does not know when he told this fact to the accused that present complainant had filed one cheque bounce case against him. He stated that the office of complainant is situated at Yadav Market road, Swaroop Nagar (Bansal Property) Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:08:42 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.10 and that there is one stationary shop adjacent to the office of the complainant but he cannot tell the name of that shop and also stated that he does not know the name of the proprietor of that shop. He denied the suggestion that the name of the owner of the said stationary shop is Raju and stated that he does not know the name of the owner of the said shop. He admitted that he took a loan from complainant and stated that he gave 4 Sahara Bonds to the complainant as security, which he has repaid. He stated that complainant made a police complaint against him once and that he also made a police complaint against the complainant. He stated that he does not have any written proof for making this complaint. He stated that he visited Swaroop Nagar police station in regard of complaint made by the complainant. He stated that no compromise was got executed by the concerned IO. He stated that he made payment of accused to complainant in December, 2017 and demanded the cheque of the accused from the complainant in JanuaryFebruary, 2018. He stated that he had not made any complaint before any authority about non returning of the cheque in question. He stated that he does not know whether the complainant runs a committee at his office in Yadav Market road, Swaroop Nagar. He stated that he did not execute any document from the complainant in regard to repayment of the loan amount. He denied the suggestion that the receipts placed by him on record pertains to committee and stated that the same pertains to interest receipts. He also denied the suggestion that he had not got extended any loan to the accused from the complainant neither he handed over any cheque of the accused to the complainant. He also denied the suggestion that he is an interested witness and falsely deposing as complainant has instituted one case against him. He also denied the suggestion that in order to settle the scores with the complainant, he in collusion with accused, is deposing falsely. He also denied the suggestion that the receipts placed by him on record were never given by complainant to him. Thereafter, DE was closed vide separate statement of the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:08:49 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.11 accused recorded on 22.02.2023.
12. Final Arguments: Learned counsel for the complainant, argued that the complainant granted friendly loan of Rs. 3 Lakhs in cash to the accused in total two installments of Rs. 1 Lakh on 24.09.2016 and remaining amount of Rs. 2 Lakhs in January, 2017 and for repayment of the same, the accused has issued the cheque in question which have been dishonoured. He further stated that the accused has failed to prove the repayment of loan amount. Learned counsel further contended that the defence of the accused has not been substantiated by any cogent evidence. He further argued that the plea of defence of the accused is far from the touchstone of preponderance of probabilities. Learned counsel asserted that the documents filed by the complainant have been duly proved and have not been impeached by the defence. Accordingly, learned counsel prayed that the accused be convicted for the offence under section 138 NI Act.
13. Per contra, learned counsel for the accused, argued that the accused owes no legal liability towards the complainant as the loan amount was already repaid by the accused to the complainant through his friend Sh. Rakesh Kumar S/O Sh. Ami Chand and thus, the cheque in question which was given as security has been misused by the complainant as the loan obtained by the complainant has already been repaid. He challenged the financial capacity of the complainant and he submitted that the complaint being a false one, the accused is entitled to be acquitted.
14. I have heard both the learned counsels, pursued the material on record and considered the submissions advanced and case laws cited.
15. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:08:54 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.12 evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
16. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
17. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
A. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:00 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.13 that account for the discharge of any legally enforceable debt or liability:
18. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has not disputed that he obtained loan from the complainant and he has also not disputed that the cheque in question was given to the complainant with respect to the loan transaction and it is drawn on an account maintained by him, however, the accused has disputed the loan amount and has claimed that he had only taken loan of Rs. 1 lakh from the complainant through his friend namely Sh. Rakesh Kumar S/O Sh. Ami Chand and he has already repaid the same, thus, his cheque in question which was given as security has been misused by the complainant.
19. However, since in the present case, the accused has admitted that loan was taken from the complainant and that the cheque was handed over to the complainant in lieu of the same loan transaction, thus, it becomes imperative to mention section 139 of The Negotiable Instruments Act, 1881 which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. With respect to these presumptions, in the case of K. N. Beena v Muniyappan, AIR 2001 SC 2895, it was observed that:
"Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable.
However, the burden of proving that a cheque had not
Digitally signed
by AISHWARYA
AISHWARYA SHARMA
SHARMA Date:
2023.03.16
16:09:04 +0530
CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.14
been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal v Bratindranath Banerjee has also taken an identical view."
20. The Hon'ble Supreme Court, in the case of Hiten P. Dalal v Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
"...Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid)..."
21. Also, in the case of K. Bhaskaran v Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"...As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability..."
22. Further, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". In Rangappa v Srimohan (2010) 11 SCC 441, the Hon'ble Supreme Court has observed:
"...Keeping in view, it is a settled position that when an accused has to rebut the presumption under Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:09 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.15 Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases, the accused may not need to adduce evidence of his/her own..."
23. Thus, as laid down in catena of decisions, it is an established law that onus lies upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumptions envisaged by Sections 118 and 139 of the NI Act.
24. In the present case, the accused has primarily taken the defence that he had taken loan of only Rs. one Lac from the complainant through his friend Rakesh Kumar S/O Ami Chand and he gave the cheque in question as security to the complainant, and the same has been misused by the complainant , as the loan amount was repaid to the complainant. With respect to the time of obtaining the loan amount, the accused during notice put U/S 251 Cr. P.C on 29.11.2022 stated that the loan of Rs. 1 lakh was obtained by him from the complainant around 3 years back, meaning thereby, this loan amount must have been given somewhere in November, 2019 and he further stated that this amount of Rs. 1 lac was repaid by him after 8 months, meaning thereby, this loan amount must have been repaid around June - July, 2020 and thereafter, the accused claimed that he demanded return of his cheque from his friend Sh. Rakesh Kumar S/O Sh. Ami Chand, who told him that the cheque was Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:15 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.16 misplaced. With respect to these facts, suggestions were put to the complainant during his cross examination, however, the complainant has denied that he had advanced loan of Rs. 1 lakh to the accused through Sh. Rakesh Kumar S/O Sh. Ami Chand and he has also denied that the cheque in question was handed over to him by Sh. Rakesh Kumar S/O Sh. Ami Chand and not by the accused, as he demanded security cheque of the accused from Sh. Rakesh Kumar S/O Sh. Ami Chand. He also denied the suggestion that the accused has returned the loan amount of Rs. 1 Lakh to him through Sh. Rakesh Kumar S/O Sh. Ami Chand. It was also suggested to the complainant that when Sh. Rakesh Kumar S/O Sh. Ami Chand, demanded return of security cheque of the accused, he refused to return the same to Sh. Rakesh Kumar S/O Sh. Ami Chand stating that Sh. Rakesh Kumar S/O Sh. Ami Chand needs to clear his own liability towards the complainant. Similar defence was also taken by the accused during his statement U/S 313 Cr. P.C. During his statement U/S 313 Cr. P.C, the accused initially admitted taking loan of Rs. 1 Lakh for 6 months from the complainant on 24.09.2016 and thereafter, stated that he had taken this amount from Sh. Rakesh Kumar S/O Sh. Ami Chand and not the complainant. However, such statement of the accused is in contradiction with his own statement made U/S 251 Cr. P. C, wherein he admitted that he had taken loan from the complainant somewhere in November, 2019 but claimed that it was taken by him from the complainant through his friend. During his statement U/S 313 Cr. P.C while answering question No. 3, the accused stated that he had returned the amount of Rs. 1 lakh to the complainant before March, 2017 and after repayment, he demanded return of his cheque from his friend Sh. Rakesh Kumar S/O Sh. Ami Chand who assured him to return the same after obtaining it from the complainant as the same was given to the complainant as security. Such statement of accused is again in contradiction with his statement U/S 251 Cr. P.C., wherein he has claimed that upon demand for return of cheque, his Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:20 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.17 friend Sh. Rakesh Kumar S/O Sh. Ami Chand, told him that the cheque has been misplaced. Further, while answering question No.8 during his statement U/S 313 Cr. P.C, the accused stated that the complainant has filed this case against him due to his own dispute with Sh. Rakesh Kumar S/O Sh. Ami Chand and it has been filed after 2 years of the issuance of cheque in question. It is pertinent to point out that this case has been filed on 09.10.2021 and as per the version of the accused during his deposition made before the court, the cheque in question was handed over as security at the time of advancing of loan and it was repaid before March, 2017. Had the loan been repaid by March, 2017, there was no reason for the accused to hand over the cheque in question as security in the year 2019. Further, what makes this defence of the accused improbable is that the accused has claimed to have made the repayment of entire loan amount in the year 2017, however, the cheque in question has been dishonoured for the first time after gap of more than 3 years on 21.06.2021 and for the second time on 13.08.2021 with remarks "funds Insufficient" and if the accused would have made payment of entire amount in the year 2017, he must have taken some action against the complainant or his own friend seeking return of his cheque and accused or his friend would have made complaint with bank or police authorities, to prevent the misuse of the cheque in question, if the loan would have been repaid in 2017 . However, admittedly neither the accused nor DW2 Sh. Rakesh Kumar S/O Sh. Ami Chand, made any complaint against the complainant before any authority and did not even take any action seeking return of the cheque in question. If the accused, would have repaid the loan amount, he must have at least given stop payment instructions to his bank to prevent the misuse of his cheque, specifically when as per the version of the accused, the loan amount was repaid even before March, 2017 and the cheque in question has been presented and dishonoured twice in June, 2021 and August, 2021 and, thus, there was sufficient time for the accused to Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:27 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.18 give 'stop payment' instructions to his bank or to give complaint to authorities to prevent misuse of his cheque after it's dishonor for the first time. What makes the defence of the accused all the more improbable is that even DW2 did not support the version of the accused that the loan amount was repaid by the accused prior to March, 2017 and then the accused demanded return of the cheque in question from him, as DW2 deposed that he gave the loan amount repaid by the accused to the complainant in December, 2017 and he demanded the cheque of the accused from the complainant in January February, 2018. Thus, there is gap of almost period of 1 year when as per the version of the accused and as per DW2, the demand for return of cheque was made by DW1 and DW2. Further, regarding repayment of the amount, the accused has failed to produce any written document / acknowledgement/ receipt and admittedly, he has not even shown repayment of loan in his Income Tax Return and even DW2 did not mention any date on which the loan amount was repaid to the complainant and he has only stated that the amount was repaid in December, 2017 and even this version of DW2 is in contradiction with the version of the accused who stated that the loan amount was repaid before March, 2017. Thus, as discussed above, there are major contradictions and inconsistencies in the version of the accused and DW2 regarding the alleged time of payment of loan and demand for return of the cheque.
25. DW2 has also filed some documents i.e. EX. DW2/2 and EX. DW2/3 to establish some payment of interest made in favor of the complainant, however, the complainant has claimed that these pertains to committee transaction between the parties and neither DW1 nor DW2 have mentioned anything about the rate of interest charged, which suggests that the version of defence is not correct. Further, entry in these documents against the name of the accused are of SeptemberOctober, 2017 , whereas, the accused has at one place claimed that the entire loan amount was Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:32 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.19 repaid in March, 2017, thus, it can not be believed that these documents pertains to the loan transaction.
26. In the present case, the accused has not denied obtaining loan from the complainant, in fact the accused has accepted obtaining the loan but he has questioned the quantum of loan and claimed that the loan was of Rs. 1 Lakhs and not Rs. 3 Lakhs as alleged by the complaint and the accused has claimed that he has returned the said loan of Rs. 1 Lakh. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides. Thus, as per this provision, in the present case, the onus to prove that the accused has returned the said loan and nothing remains to be paid to the complainant rests on the accused. The only recourse Accused took to prove his case is by examining Sh. Rakesh Kumar S/O Sh. Ami Chand as DW2, however, as pointed out above, there are major contradictions in the testimony of these witnesses regarding the time of repayment and regarding the time of demand of return of cheque after such repayment. Further, both the DW's have failed to produce on record any receipt to establish the factum of repayment of loan amount and the accused has failed to take any action seeking return of his cheque and to prevent misuse of his cheque. Thus, it will be utter disregard to the established principles of evidence, if this court accepts this oral evidence of accused devoid of any documentary evidence to concretize the proof. The story of accused, in the absence of any credible evidence, cannot be taken as a gospel truth. Accordingly, the defence of the accused that he has repaid the loan amount and his cheque in question which was given as security has been misused stands not proved.
27. In the present case, the accused has also tried to dispute the loan transaction by objecting to the financial potentiality of the complainant to advance the loan in question to the accused, however, the accused himself has admitted that he has Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:37 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.20 received loan of Rs. one lac from the complainant and the complainant has deposed before this court that his annual income is Rs. 12 Lakhs and he had given loan of Rs. 2 lakhs to the accused for the second time after borrowing the same from his brother Sh. Naresh Kumar and his wife Smt. Laxmi. Thus, in view of admission of accused regarding receipt of Rs. one lac from the complainant and statement of the complainant regarding advancement of remaining Rs. two lac after borrowing from his relatives, the version of the accused that the complainant did not have financial capacity to advance the loan amount to the complainant cannot be relied upon. The accused has also tried to dispute the loan transaction by stating that despite being an income tax payee, the complainant has not reflected the loan transaction in his ITR.
In the present case, admittedly, the complainant did not disclose the factum of advancement of loan in question in his ITR yet such factor alone cannot be enslaving enough to defeat the prosecution story, specifically when the accused has himself admitted receiving part of the loan amount from the complainant. In the present case, it is not the case of the accused that the complainant obtained his signatures on the cheque in question under duress or by exerting undue influence. It is further not the case of accused that the complainant did not advance any loan to the accused. The claim of the accused is that the loan was advanced by the complainant, but the loan amount was Rs. 1 Lakh and not Rs. 3 Lakhs and also that he has paid the loan so advanced and nothing as such remains to be given to complainant. The burden lied heavily on the accused to have probablised the factum of repayment of the loan, however, at the cost of repetition, it will be pertinent to mention again, that accused has failed miserably to prove by any means the defences claimed.
28. In the present case, the accused has also disputed his liability for the dishonor of the cheque in question by claiming that he has only signed the impugned cheque and not filled it's particulars. However, even if this submission of the accused Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:41 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.21 is taken to be true, the fact that accused gave a blank signed cheque to the complainant and the particulars were not filled by him does not dilute the liability of the accused as the legal position on inchoate instruments is well settled. Section 20 of the NI Act provides that if a person signs and delivers a paper stamped in accordance with the loan and either wholly blank or have written thereon an incomplete negotiable instrument, such person thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. In Ravi Chopra v. State and others, 2008 (102) DRJ 147, the Hon'ble High Court of Delhi has been held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date. Also, in the case of K. Bhaskaran v Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
29. As discussed above, in the present case, all the defences taken by the accused stands beseeched. Now coming to the version of the complainant, the complainant's story is that he granted friendly loan of Rs. 1 Lakh in cash to the accused on 24.09.2016 for his business needs and thereafter, Rs. 2 lakhs in cash in January, 2017, after borrowing the same from his brother Sh. Naresh Kumar and his wife Smt. Laxmi as the accused required the loan for the second time as his Bhabhi was contesting Delhi Municipal Corporation election in the year 2017. To dispute the loan transaction, suggestions have been given to the complainant during hiscross Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:46 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.22 examination that he did not have friendly relationship with the accused, however, the complainant denied the same and stated that he knew the accused since the year 2015 through one of his friend namely Sh. Duli Chand, who is the neighbor of the accused. Though the accused has initially denied having any relationship with the complainant, however, during his statement U/S 313 Cr. P.C, he admitted meeting with the accused through Sh. Rakesh Kumar S/O Sh. Ami Chand for obtaining loan of Rs.1 Lakh and in his testimony, he admitted that the complainant is a property dealer running his business from his office in Swaroop Nagar and he has even admitted visiting the office of the complainant at Yadav Market Road, Swaroop Nagar and he even stated that the distance between his house and complainant's house is 56 km. All these facts suggests that the parties knew each other and suggests the possibility of advancement of friendly loan of Rs. 3 Lacs by the complainant to the accused specifically as the accused has admitted that that his Bhabhi contested MCD Election in the year 2017 from Aam Admi Party and the complainant has stated that for election of Bhabhi of accused only, he granted loan to the accused for the second time. Throughout the trial, the accused has not disputed receiving of loan of Rs. one lac from the complainant and he has even admitted that the cheque in question was handed over to the complainant after affixing signature, in lieu of this loan transaction. The complainant has claimed that the accused has issued the impugned cheque in his favour to repay the said loan. The record complainant has brought to substantiate his point are the Cheque in question, EX. CW1/B, bearing the signatures of accused along with the cheque retuning memo, EX. CW1/C which further establishes the facts so claimed by the complained. The accused did not bring any evidence to impeach the credibility of the said document, rather accused agreed on the point of having signed the Cheque voluntarily and the fact that loan was indeed taken though not for the amount as claimed by the Complainant. It is matter of Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:09:50 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.23 the fact that complainant has not build up his theory by bringing any other documentary proof, apart from the cheque in question and cheque return memo along with legal notice of advancing loan to the accused but the fact that accused in his defence, has accepted the factum of loan advanced by the complainant provides pillar to the story of the complainant. To rebut the case of the complainant, the accused had to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given, however, as discussed above, the accused has failed to prove the same.
30. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant and lastly, that the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of section 138 NI Act stands assembled.
B. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
31. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question, EX. CW1/B dated 18.06.2021 and the return memos Ex CW1/C & EX. CW1/D which are dated 21.06.2021 and 13.08.2021 respectively, thus, being presented within prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same. C. That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank: Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:54 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.24
32. In the present case, the cheque in question has been dishonored due to insufficient funds and the accused has not disputed correctness of dishonor memo throughout the trial, rather, he has admitted it's correctness during his statement of admission and denial recorded U/S 294 of CrPC. Further, Section 146 of The Negotiable Instruments Act, 1881, in this regard also comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. At the cost of repetition, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled. D. The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid:
33. In the present case, the accused has admitted that the legal demand notice was sent at his correct address. Though, the accused has denied the receipt of such notice through speed post, however, the tracking report placed on record EX.CW1/H shows that the legal demand notice has been received back on 11.09.2021 by the complainant with remarks "addressee left without instructions".From perusal of record, it is evident that the address mentioned in the legal notice is identical to one informed by the accused during framing of notice wherein the accused has admitted that the legal demand notice was sent at his correct address. Furthermore, section 27 of the General Clauses Act provides that service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document unless the contrary is proved. A like Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.03.16 16:09:59 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.25 presumption is also carved out under section 114 Indian Evidence Act, 1872 which when applied to communications sent by post, enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Since these presumptions have also not been rebutted by the accused, the same stand and go in favour of the complainant. In this regard, reliance can be placed on the judgment passed by the Hon'ble Apex Court in Alavi Haji v. Palapetty Muhammad (2007) 6 SCC 555 wherein it has been held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business."
It was further held that:
"A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act".
34. Further, in the present case, the accused has admitted that the legal demand notice has been served upon him, through whatsapp and e mail, thus, the fourth condition, to entail liability under section 138 of the Negotiable Instruments Act, 1881, in light of the above cited law and judgments, is fulfilled.
E. The drawer of such cheque fails to make payment of the said amount Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.03.16 16:10:03 +0530 CC No. 7883 of 2021 Rakesh Kumar vs. Ayaz Usmani @ Raju Page No.26
of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice:
35. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within fifteen days on the pretext that he owes no liability towards the complainant. However, he has miserably failed to prove the said assertion. Thus, the last limb of what will entail the liability against the accused is also structured.
36. Ratio: Since in the instant case, the accused has failed to lead any convincing evidence to aid him in discharge of his onus to rebut the presumption of law existing in favor of the complainant and the complainant has successfully proved all the essential ingredients of Section 138 of the Act. Accordingly, this Court finds accused Ayaz Usmani @ Raju guilty and he is hereby, convicted for the offence under section 138 of the NI Act. Let he be heard on the point of sentence separately.
37. Let the copy of this judgment be given to the convict free of cost and the same be also uploaded on LAYERS and CIS forthwith.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date:
2023.03.16
16:10:08 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 16th day of March, 2023 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi