Delhi District Court
Sandeep Gupta vs Amit Aggarwal on 29 September, 2018
IN THE COURT OF MS. PARIDHI GUPTA
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
New CC No. : 49996388/2016
Sandeep Gupta versus Amit Aggarwal
Under Section: 138, The Negotiable Instruments Act, 1881
1. Name & address of the complainant : Sandeep Gupta,
S/o Sh. Subhash Chand
Gupta,
R/o Flat No. 3902, Sanchar,
Vihar, Plot No. 15, Sector 4,
Dwarka, New Delhi110075.
2. Name & address of the accused : Amit Aggarwal,
S/o Sh. Subhash Aggarwal,
R/o RZF 41/11A, Gali No.
41, Sadh Nagar II, Palam,
Colony, New Delhi 110045.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final order : Convicted.
6. Date of such order : 29.09.2018
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7. Date of Institution of case : 30.05.2014
8. Date of decision of the case : 29.09.2018
JUDGEMENT
1. Vide this judgement, I shall dispose of the aforementioned complaint case filed by the complainant, Sandeep Gupta (hereinafter referred to as the 'complainant') against accused, Amit Aggarwal (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case, bereft of unnecessary details, is that the accused approached the complainant for advancement of a friendly loan of Rs. 4,00,000/ in the month of October 2013. The complainant, considering their relations, advanced a loan of Rs. 4,00,000/ to the accused. The accused promised to repay the said loan in the first week of March, 2014.
3. To discharge the aforesaid liability, the accused tendered a cheque amounting to Rs. 4,00,000/ bearing number 117628 dated 04.03.2014 drawn on Oriental Bank Of Commerce, Building No 59, Village and Post Office Palam, Najafgarh, New Delhi 110045 (hereinafter referred to as the 'cheque in question') New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 in favour of the complainant with the assurance that the same will be honoured. Upon presentation whereof, however, the same got dishonoured and was returned to the complainant vide return memo dated 25.03.2014 with the remarks "Funds Insufficient". The complainant thereafter, sent a legal demand notice dated 16.04.2014 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof. The complainant has claimed that the said legal notice was duly served at the correct address of the accused through speed post.
4. 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 30.05.2014.
5. The complainant has averred that the complaint is within the period of limitation as is prescribed under section 138 read with section 142 of The Negotiable Instruments Act, 1881 and the same falls within the territorial limits of this Court; thus, being tenable at law.
6. Prayed for: As relief, the complainant has sought that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881 and that the complainant be granted adequate compensation.
7. Presummoning evidence: To prove his case prima facie, the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 complainant led the presummoning evidence under section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/1 wherein the complainant avouched the same facts as are averred in the complaint.
8. Documentary evidence: To pillar and reinforce the above claims, the complainant has filed the cheque in question which is Ex. CW1/A while the cheque return memo in respect of the cheque in question is Ex. CW1/B. The legal demand notice sent to the accused by the complainant and the postal receipt qua the same are Ex. CW1/C and Ex. CW1/D (colly) respectively. Reply to the legal demand notice is Ex. CW1/E. The undertaking given by the accused is Ex. CW1/F. Ex. CW1/G is the depositing slip qua the cheque in question. Lastly, document showing that the complainant maintains a joint bank account with his wife issued by the concerned bank is Ex. CW1/H.
9. Summoning of accused and chain of subsequent events: The court summoned the accused after hearing the arguments at the stage of presummoning vide order dated 31.05.2014 and accused entered appearance in the present case on 28.07.2014. He was admitted to bail vide the same order.
10. Notice under section 251 Cr.P.C. was framed against the accused pursuant to arguments being advanced on the point of consideration thereof by the court on 11.08.2014. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 recorded his plea.
11. Plea of the accused: The accused pleaded not guilty and claimed trial. He stated in his defence that he had issued only blank signed cheque to the father of the complainant at the time of taking a loan of Rs. 50,000/ from him on 22/23.08.2013.
12. Evidence of the complainant: The complainant adopted his pre summoning evidence as his postsummoning evidence and got himself examined as CW1. He was subjected to crossexamination wherein he inter alia deposed that he is a property dealer by profession since the last three years and that he also rents his own properties. The complainant testified that he earns a sum of Rs. 1,00,000/ per month. He voluntarily clarified that the same may differ from month to month starting from Rs. 10,000/ to Rs. 1,00,000/.
13. The complainant avouched that he had given the loan to the accused in good faith and that he has known him for the last eight to ten years. He avowed that he did not receive any security in respect thereof. The complainant deposed that he could not tell as to what is his household expenditures and voluntarily asserted that the same varies depending on his income. He further avouched that he also cannot tell as to what are his savings per year. The complainant claimed that he had given the entire loan in question to the accused in cash which was lying with him at that time. The complainant further claimed ignorance about the fact whether the accused New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 had also taken a loan of Rs. 4,00,000/ from his father or not.
14. Upon being recalled for further crossexamination, the complainant testified that he did not file ITR for the relevant financial year. He deposed that he is not aware about any complaint filed by the accused regarding Ex. CW1/F.
15. The complainant closed his evidence on 17.09.2014 without calling and examining any further witness.
16. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C on 27.08.2018 wherein he inter alia stated that he had borrowed a sum of Rs. 50,000/ in August 2013 from the father of the complainant at an interest rate of 10% and no loan was taken from the complainant. The accused further asserted that he was regularly paying the interest but had not paid the principle amount of Rs. 50,000/ to the father of the complainant. The accused clarified that he had issued a blank signed cheque in favour of the father of the complainant. Qua Ex. CW1/F, the accused stated that the same has been written by him but that he was forced to write the same. The accused admitted to receiving the legal demand notice and the fact that he did not make payment despite service of the notice.
17. Defence Evidence: The accused got himself examined as a witness under section 315 Cr.P.C. and inter alia deposed in his examinationinchief that he New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 had borrowed a loan of Rs. 50,000/ from the father of the complainant and that, at the time of availing the said loan, he had give a blank signed cheque to him. The accused avouched that the said loan was taken at an interest rate of 10% per month and that he had paid interest for a period of 5 to 6 months to him.
18. The accused testified that owing to financial problems he could not pay the amount of interest and one day, while he was going to his home, the complainant forcibly took him to his residence in an under constructed building where the former made him execute Ex. CW1/F forcibly.
19. The accused lastly deposed that a telephonic conversation took place between him, his father and his younger brother on one side and the complainant and his father on the other side wherein, the father of the complainant affirmed that he had given the loan to him and that the said conversation was recorded by them.
20. The accused was subjected to crossexamination wherein, he inter alia deposed that he did not remember the cheque in question or its number. He avouched that he did not maintain the cheque leaf record. He affirmed that Ex.CW1/F bears his signature and writing. The accused voluntarily clarified that the said document was executed and written by him coercively as the complainant was present along with three to four other persons and that the contents of the said document were dictated and spelled by the complainant to him.
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21. The accused further avowed that he cannot understand English language but that he signs in English. The accused claimed ignorance about the contents of Ex.CW1/F and stated that he cannot read the said document. The accused deposed that the place where the same was executed is situated three hundred meters away from the Police Station. The accused stated that he did not go to the Police Station as he was scared. He avouched that he went to the Police Station only after the receipt of the legal demand notice but the Police informed him that nothing could be done as the matter is already pending before the Court. The accused stated that he cannot produce any other witness who could support his testimony and that he cannot disclose the date when he went to the Police. The accused further testified that he did not make any written complaint to the Police.
22. The accused asserted that he has known the complainant for the last 20 years. He deposed that at the relevant time, he was running a printing press and that he used to receive work both in English and Hindi. The accused asserted that he used to work both in English and Hindi and that he worked alone. He further avouched that the customers used to provide details/ printing particulars to him in English. The accused denied the suggestion that he is conversant with English language.
23. Testimony of DW2, Sh. Subhash Aggarwal, (father of the accused): He deposed in his examinationinchief that the complainant is his New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 neighbour and that his son never took any money from him. The witness stated that his son took 50,000/ from the father of the complainant and as per his knowledge, the said loan has already been repaid along with interest.
24. DW2 avouched that after receiving the legal demand notice, he called the father of the complainant and told him that his son (the accused herein) took a sum of Rs. 1,00,000/ from him on interest and that there exists a total liability of Rs.1,75,000/ which includes Rs. 50,000/ as litigation expenses. The witness further deposed that the father of the complainant had told him that the former had withdrawn a sum of Rs. 1,00,000/ from Punjab National Bank and that the said conversation was recorded.
25. The witness was subjected to crossexamination wherein he inter alia deposed that he became aware about the present proceedings in the month of July, 2014. He asserted that as per his knowledge, the present case is pertaining to a sum of Rs. 50,000/ and that the cheque in question amounts to Rs.4,00,000/.
26. When the attention of the witness was drawn to Ex. CW1/F, he admitted that as per the said document the accused admitted his liability to the extent of Rs. 4,00,000/. The witness avouched that the signatures of the accused were forcibly taken by the complainant and his associates. He stated that all the aforementioned were informed to him by the accused and that he did not see the scuffle himself.
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27. DW2 avowed that he and his son did not get any complaint registered with the Police against the complainant and his associates. He admitted that the loan of Rs. 50,000/ as alleged was not taken by the accused in his presence and that the said fact was informed to him by the accused. He affirmed that no monetary transaction took place in his presence between his son or the complainant or the father of the complainant.
28. The witness testified that he did not remember the exact date of the conversation between him and the father of the complainant. The record of the said conversation is Ex. DW2/A1 and the transcript thereof is Mark A1. He avowed that the mobile phone wherein, the said conversation was recorded got damaged and the same has been disposed of. He asserted that he got the conversation transferred into a compact disk from a local mobile vendor. He claimed ignorance about the details of the said vendor and added that he cannot produce the said vendor.
29. The witness testified that he made a call to the father of the complainant from the mobile phone of his son. He stated that he cannot produce any documentary proof to demonstrate that he made any call to the father of the complainant. He further deposed that he did not know the model or the brand of the phone wherein, the recording was made.
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30. Testimony of DW3, Sh. Subhash Chand Gupta (father of the complainant): The father of the complainant turned hostile and testified in favour of the accused. His testimony is not reproduced herein as the same is not pertinent for the adjudication of this case.
31. Testimony of DW4, Sh. Deepak Jain: The witness in his examinationinchief deposed that the father of the accused had given him a Compact Disk, which is Ex. DW2/A1 and the same contains audio clips. He stated that he prepared the transcript thereof which is Ex. DW3/1 (colly). The witness testified that the same bears his stamp and signature at the bottom of the each page thereof.
32. The witness, upon being crossexamined, inter alia stated that he has not undertaken any professional course in the field of transcription. He voluntarily clarified that there is no such course. He avouched that he cannot testify as to the hundred percent accuracy of the said aforementioned transcript. He admitted that he had prepared the said transcript without verifying the source of the audio clip.
33. Final Arguments: Final arguments were advanced on behalf of both the parties. Learned counsel for the complainant, Mr. Shivam Bajaj, argued that the accused has admitted his signatures on the impugned cheque and that the legal notice has been duly served upon the accused despite which the accused failed to New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 make the payment. He further argued that it has not been proved that the cheque was not given to the complainant and that the accused has failed to lead any effective evidence to rebut the presumption. Ld. Counsel contended that the acknowledgment placed on record reeks of culpability on the part of the accused. Since, no misuse has been proved by the accused, learned counsel for the complainant submitted that the complainant has successfully proved his case beyond reasonable doubt and hence, the accused is liable to be convicted. Written submissions were also filed.
34. Per contra, learned counsel for the accused, Mr. Sanjay Singh, argued that the complainant has failed to prove his case as the receipt placed on record is a forged and fabricated document and that the same was obtained from the accused forcibly. He challenged the financial capacity of the complainant and further contended that the complainant has not filed any documents pertaining to his financial capacity and has also failed to disclose the factum of advancement of the loan in question in his ITR. He heavily relied on the tape recorded conversation placed on record and navigated the attention of the court to various assertions in made in alleged conversation. Having argued the above, learned counsel submitted that the complaint is a false one and hence, the accused is entitled to be acquitted of the offence complained of. Written submissions were also filed.
35. I have heard learned counsel; pursued the material on record and considered the submissions advanced.
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36. 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.
37. 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 evidence adduced by the complainant, viz,
1. 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;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid, either because 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;
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4. The payee or the holder in due course of the cheque makes 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;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
38. 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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
39. That said, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has 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.
40. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. 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, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has 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 (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
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41. 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.
42. 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 denied issuing the cheque in question in favour of the complainant asserting that the same was given to the father of the complainant as security in respect of a loan of Rs. 50,000/ taken by him.
43. The accused, throughout the journey of the trial has taken two different defences in an attempt to rebut the presumptions carved in favour of the complainant. While in his reply to the legal demand notice he has challenged the quantification of liability as alleged by the complainant, at the time of framing of notice under section 251 Cr.P.C., he has denied the issuance of the impugned cheque in favour of the complainant altogether. However, relevantly, he has not disputed the fact that the cheque is drawn on his bank account and that the same bears his signature. Let us examine the potency of the defences! The impressiveness of the same are as feeble as a bubble and the same bursts on the premise that the accused has failed to prove any of the assertions to cement his defences.
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44. First fact A loan of Rs. 50,000/ was taken by the accused from the father of the complainant. The accused has brought forth not even an iota of evidence to stand up for and bolster this claim. He has failed to substantiate the factum of grant of such loan either by documentary evidence or by oral testimony of any witness who may have seen him either approach the father of the complainant or the latter advancing him the loan or him issuing the impugned cheque in his favour. As far as the deposition of DW2 is concerned qua the said fact, the same falls under the umbrella of hearsay and hence, is inadmissible by virtue of section
60. In the absence of any such evidence to pillar the assertion, the word of the accused cannot be taken as a gospel truth.
45. Second fact The accused repaid the amount regularly in installments till April 2014 to the complainant. This fact finds mention in the reply to the legal demand notice, Ex. CW1/E. If the accused allegedly repaid some amounts in installments towards the loan of Rs. 50,000/, he must prudently be in possession of some receipts issued by the complainant acknowledging the repayments. However, the accused failed to corroborate the factum of repayments allegedly made by him for the lack of which, his unsubstantiated version floats in a vacuum without merit.
46. Third Fact The cheque in question was given merely as a security and not for the purpose of discharging any lawful debt. Even if the cheque was presumably given as security, the same will not fall out of the purview of section New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 138 NI Act and liability shall entail against the accused in case all other attending circumstances are proved against him. This view has been endorsed by the Hon'ble High Court of Delhi in Credential Leasing & Credits Ltd. Vs. Shruti Investments and Another, CRL. L. P. 558/2014.
""Property etc. deposited or pledged by or on behalf of a person as a guarantee of the fulfillment of an obligation (as an appearance in court or the payment of a debt) and liable to forfeit in the event of default". (Emphasis supplied) It has been further held that:
"61. Thus, in my view, it makes no difference whether, or not, there is an express understanding between the parties that the security may be enforced in the event of failure of the debtor to pay the debt or discharge other liability on the due date. Even if there is no such express agreement, the mere fact that the debtor has given a security in the form of a post dated cheque or a current cheque with the agreement that it is a security for fulfillment of an obligation to be discharged on a future date itself, is sufficient to read into the arrangement, an agreement that in case of failure of the debtor to make payment on the due date, the security cheque may be presented for payment, i.e. for New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 recovery of the due debt. If that were not so, there would be no purpose of obtaining a security cheque from the debtor. A security cheque is issued by the debtor so that the same may be presented for payment. Otherwise, it would not be a security cheque."
47. Further, for the sake of argument if one were to assume that the cheque in question was given as security, as alleged by the accused, then two pertinent questions may take birth out of reasonability one, why did the accused not demand, by way of a written notice, the cheque in question back from the complainant or his father which he alleges to have given as security. Merely stating that the cheque was given as security shall not suffice either to obscure the story put forth by the prosecution or to magically cause the probabilities to lie in one's favour. The second question that would surface from the womb of reasonability is that why did the accused not file any complaint either with his bank or with the police in order to ensure that the cheque was not misused?!
48. The failure to lodge/file any complaint further causes dubiety to lurk around the story of the defence. An adverse inference can safely be drawn against the accused who has otherwise failed to adduce any affirmative evidence to show that he indeed did everything within his power and control, as a prudent man would do, to ensure that the cheque tendered by him, allegedly as security, was not misused. Failure of the accused to prevent such alleged misuse in light of the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 attending circumstances of the case materially ejects plausibility out of the defence version.
49. Reliance can safely be placed on the judgment pronounced by the Hon'ble Parent High Court in V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
50. Fourth Fact: The impugned cheque was given as a blank signed one and the same has been presented by the complainant without prior information. The said asseveration is also spelled in the reply to statutory notice. Now, in such a scenario, section 20 of The Negotiable Instruments Act comes into play which provides that when a person signs a negotiable instrument and delivers the same to another either wholly blank or after partially filling the same, he gives an authority to the holder thereof to write the same and becomes liable for the amount mentioned therein provided the said amount does not exceed than the amount which the holder is liable to recover from the drawer. Thus, though the accused allegedly gave an inchoate negotiable instruments to the complainant to discharge a legally enforceable debt, he will nonetheless be liable in view of the aforementioned provision. Also, the law does not impose any duty on the complainant to intimate and obtain the consent of the accused prior to presenting the cheque.
51. Fifth Fact The alleged telephonic conversations between the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 accused and the father of the complainant and parties themselves wherein the father of the complainant has affirmed the factum of grant of loan to the accused. A cloud of doubt hovers over the admissibility of the tape recorded conversation on the edifice that primarily, it has not been proved by the defence that the alleged voice is that of the father of the complainant and the complainant in light of the fact that the same has been disputed. Since the complainant has denied having any conversation with the accused as alleged, onus rested on the defence to prove that the voice therein belonged to the complainant and his father. Secondly, the expert witness, DW4 has himself testified before the court that he did not verify the source of the audio clip whereof the transcript was prepared by him.
52. Furthermore, the compact disk, Ex. DW2/A1 being secondary evidence of the contents therein is inadmissible in evidence by virtue of section 65 B of the Indian Evidence Act, 1872 which is reproduced herein below:
"Section 65B. Admissibility of electronic records (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--
New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
53. Interestingly, the certificate placed on record has been filed by the accused wherein it has been stated that he had written the compact disk placed on record. The said certificate is in stark contrast with the testimony of the father of the accused who avouched that he approached a local vendor to get the CD written. Thus, the certificate is not found to be reliable as either the accused has stated untrue facts therein or the father of the accused falsely deposed before the court.
54. The testimony of the father of the accused, DW2 further renders the tape recorded conversation suspicious, amplifying the inkling of mistrust in the version put forth by the defence. DW2 failed to produce the primary evidence before the court and conveniently, avouched that the same has been damaged and disposed of. He further testified that he got the compact disk written by a local vendor whose details he did not know. In the same breath he stated that he cannot even produce him without even putting in any reasonable efforts to procure his attendance. Lastly and in fact, appallingly, he claimed ignorance about the device whereby he recorded the alleged conversation.
55. Refuge can be taken under the provision enunciated in section 114 of New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 the Indian Evidence Act, 1872 to pillar the same presumption providing that the court may presume the existence of any fact which it thinks likely to have happened having regard to the human conduct etc. in their relation to the facts of a particular case. One of the illustrations appended to the section provides that the court may presume that the evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it.
56. The above facts are material and disquieting enough to cause any reasonable man to infer that murkiness fogs the veracity of Ex. DW2/A1 and Ex. DW3/1 and the same are exceedingly unsafe to rely upon. Implausibility finds safe residence in the fact that DW2 did not even know the make and model of the device which he used, possessed and carried to a vendor. Thus, it is reasonable to probablise that the defence failed to adduce evidence which was otherwise easily procurable for it was unfavourable.
57. Law enunciated in the judgment titled as Ram Singh and Ors. Col. Ram Singh 1986 AIR (SC) 3 pronounced by the Hon'ble Apex Court deserves to be mentioned in this regard. The Hon'ble court relied on the judgment in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra (1975) Supp SCR 28 wherein it was held that:
"We think that the High Court was quite right in holding that the tape records of speeches were New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 'documents', as defined by section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to the rules of relevancy found in the Evidence Act.
(d) Record cassette must be carefully sealed and kept in safe custody
(e) The voice of the speaker should be clearly audible and not lost or distorted by other sound or disturbances."
58. Now that the defences taken by the accused stand beseeched, let us examine the potentiality of the case of the prosecution! For any prosecution case to New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 stand on its own legs, it must pass through the stringent test of compelling cogency, plausibility and lucidity. The entire premise of a complaint under section 138 is the cheque in question. It must be borne in mind that the possession of the cheque and the execution thereof are two different aspects. While the court can presume that the cheque may have been in the possession of the complainant, shall not compel the court to presume that the same was in fact executed. The prosecution has to establish the fact that the cheque was drawn by the accused to discharge a legally enforceable debt. Mere possession thereof or an admission of signatures thereon shall not liberate the complainant from his onus to prove that the accused had drawn a cheque in his favour.
59. The unpretentious claim of the complainant is that he gave a friendly loan of Rs. 4,00,000/ to the accused which the accused promised to repay within six months and the said debt was sought to be discharged by the accused when he tendered the impugned cheque to the complainant. Now, the factum of approaching the complainant for grant of a friendly loan has been affirmed by the accused in Ex. CW1/E. However, he has challenged the quantification of the loan advanced by the former.
60. The accused contradictorily asserted that the loan was actually taken from the father of the complainant, this contradiction itself emits a stench of falsity from the otherwise feeble defence of the accused. The accused has not furnished any reasonable explanation as to why alleged untrue facts were spelled in his reply to New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 legal demand notice. It is profoundly unnerving that the accused went as far as mentioning the factum of alleged repayments in the said reply whereas he inconsistently, stated during the course of trial that he has not paid any amount towards the alleged debt of Rs. 50,000/ except some unquantified interest. For the sake of argument, even if one presumes that the mention of the complainant as the creditor was an inadvertence in the above mentioned reply, by no stretch of imagination can the stating of factum of repayments be connoted as inadvertence.
61. Adverting to the claim of the complainant, the same has been proved by a handwritten acknowledgment Ex. CW1/F. During his examination under section 313 Cr.P.C., the accused admitted his signature and handwriting on the said document but stated that the complainant obtained the same under duress. However, amusingly, the accused did not take any legal recourse to get the document annulled or file any criminal complaint against the complainant for as grave offences as abduction and extortion to prevent the misuse of the document, if at all. The only reason furnished by the accused is that he was scared which is anything but convenient and desperate.
62. The accused has attempted to demonstrate his prudence by asserting that he went to the police station pursuant to receiving the legal demand notice. However, the same prudent accused failed to promptly take any steps to ensure that Ex. CW1/F was not misused by the complainant allegedly when the accused was made to write and sign the same. A person cannot be prudent proportionately! He is New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 either prudent or imprudent. In the present case, the accused has failed to show that he exercised any caution or circumspection which could portray his bona fides. In the absence of any diligence on the part of the accused, it can be safely concluded that the assertion of the accused that he approached the police after receiving the legal notice, Ex. CW1/C seems to be an afterthought which is not even mildly substantiated by him.
63. Failure to disclose the date when he allegedly approached the police, to file a copy of complaint, if any before the court and to produce any witness to vouch for his story, makes the narration of the accused highly inconceivable for any reasonable mind to pose faith in him. There is no cogent reason which has surfaced on record to doubt the creditworthiness of Ex. CW1/F. The defence has miserably failed to impeach the veracity thereof and the same unimpeachably substantiates the version of the complainant.
64. Although 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 shroud the prosecution story with a fog of murkiness. Only an adverse inference can be drawn against the complainant if he has not disclosed the said fact in his ITR but if the attending circumstances are of such a nature as would unflinchingly incriminate the accused, then the prosecution case shall not collapse merely because the complainant has not disclosed the factum of loan advanced in his ITR. Also, the complainant shall face the music if an action is taken by the Income Tax department New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 but it shall not be a factor disentitling the complainant to a relief he has claimed in the present case.
65. Challenge to the financial capacity of the complainant to advance the loan in question is also not tenable in light of Ex. CW1/F , the maker whereof is the accused himself. Moreover, merely asking the complainant about his earning per month shall not tantamount to a challenge to his financial potentiality. The defence did not even mildly suggest to the complainant during his crossexamination that he did not have the requisite financial capacity to advance the loan in question. Bricked by presumption and fortified by the documentary evidencee, the claim of the complainant has passed a test of cogency, consistency and reliability.
66. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the failure of the accused to put forth any reasonable and believable defence, admission of the accused that the signature on the cheque in question belongs to him and compelling documentary evidence placed on record, the first element of section 138 NI Act stands assembled.
67. As for the second condition qua the presentation of the cheque within three months, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/A dated 04.03.2014 while the return memo Ex CW1/B which is dated 25.03.2014, thus, being presented within prescribed period of limitation of three months. The defence did not to adduce any evidence whatsoever to contradict the New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 same.
68. The third condition pertains to the return of the cheque as unpaid owing to it being dishonoured. Section 146 of The Negotiable Instruments Act, 1881, in this regard 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.
69. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the same, Ex. CW1/C, to the accused who has admitted to receiving the same during his examination under section 313 Cr.P.C. Also, he duly replied to the same which is Ex. CW1/E, thus, implying the satisfaction of the fourth condition.
70. 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 contending that he owes no legal liability to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove that said assertion and thus, the last limb of what will entail the liability against the accused, is also New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36 structured.
71. Ratio: Finally, having considered the totality of the facts and circumstances of the case, the presumption spelled under section 139, the law enunciated under section 138 and the judgments cited at bar, the offence under section 138 of The Negotiable Instruments Act, 1881 is made out against the accused, Amit Aggarwal. The weight of the evidence adduced by the complainant to prove his case against the accused is sufficient enough to impute criminality on him. The complainant has discharged his burden to prove his case against the accused beyond all reasonable doubt under section 138 NI Act. The accused is accordingly, convicted of the said offence.
72. Let the copy of this judgment be given to the convict free of cost.
Announced in the open court today i.e. 29.09.2018.
Paridhi Gupta MM/N.I.Act02/South West Dwarka, Delhi Digitally signed by PARIDHI PARIDHI GUPTA GUPTA Date:
2018.10.05 17:00:49 +0530 New CC No. : 49996388/2016 Sandeep Gupta versus Amit Aggarwal 3/36