Delhi District Court
Sector 24 vs . on 19 January, 2011
IN THE COURT OF SH. VIPIN KHARB
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI
Case No. : 13062/09
State Bank of India. ... Complainant.
Sector 24, Rohini, Delhi 110085
Vs.
Mrs. Poonam.
W/o Sh. Ashok Kumar
R/o Janta Flat No. 500
Pocket I, Sec A6,
North Side Central Park,
Narela, Delhi 110040 ... Accused.
Date of Institution : 13.03.2009
Date of Reserving Judgment : 30.11.2010
Date of Judgment : 19.01.2011
Case No. : 13062/09 1 / 16
:: JUDGMENT ::
BRIEF FACTS AND REASONS FOR DECISION OF THE
CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant SBI Bank through its representative Sh. Krishan Lal, Branch Manager, SBI Bank, Sector 24, Rohni against the accused Ms. Poonam W/o Sh. Ashok Kumar.
2. The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, the accused had sought payment of Rs. 1.50 lacs for the purpose of payment of earnest money while applying for the allotment of flat under DDA 2008 Scheme. Towards the repayment of aforesaid loan of Rs. 1.50 lacs accused has issued the cheque bearing no. 170126 dated 28.01.2009 for a sum of Rs. 1,50,000/ drawn on HDFC Bank, Narela, New Delhi in favour of the complainant. However, on presentation of the same it was dishonoured vide cheque returning memo dated 02.02.2009 with remarks "Funds Insufficient". The complainant has thereafter given a Case No. : 13062/09 2 / 16 legal notice of demand dated 07.02.2009 to the accused which was sent by speed post on 09.02.2009 and RPAD thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
3. After the complaint was filed, the Authorized Representative of the complainant led his presummoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 11.07.2009 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 25.08.2010 was given to the accused to which has pleaded not guilty and claimed trial.
4. In order to prove the case, Sh. Krishan Lal, Authorized Representative of the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before this court and Case No. : 13062/09 3 / 16 filed an affidavit in evidence which is Ex. CW1/A. He got exhibited original cheque before the court as Ex. CW1/6 and the cheque returning memo as Ex. CW1/7, the legal notice of demand dated 07.02.2009 as Ex. CW1/8 and speed post receipt vide which the aforesaid notice was sent as Ex. CW1/9 and Acknowledgment Card of Registered post duly received by the accused Ms. Poonam which is Ex.CW1/10. Sh. Krishal Lal was crossexamined by Ld. Counsel for the accused. Thereafter, the complaint evidence was closed at request.
5. After that the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused Ms. Poonam in which she admitted that he had taken a loan of Rs.1,50,000/ from the complainant for financing the flat in DDA Scheme in 2008. She has further stated that the cheque in question which is Ex.CW1/6 was given by her to the complainant in blank at the time of taking loan. She has neither admitted nor denied the receipt of legal notice of demand from the complainant in her statement U/s 313 Cr.PC. Thereafter the case was fixed for Defence Evidence.
Case No. : 13062/09 4 / 16
6. Accused submits that she does not wish to lead defence evidence. Statement to that effect recorded separately. Thereafter, the case was fixed for Final Arguments.
7. I have heard Ld. counsels for both the parties and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
8. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the Case No. : 13062/09 5 / 16 period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
9. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheque in question which Case No. : 13062/09 6 / 16 is Exhibit CW1/6 is dated 28.01.2009 which got dishonoured vide cheque returning memo which is Exhibit CW1/7 dated 02.02.2009 which is not disputed by the accused clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque.
10. DISHONOUR OF CHEQUE IN QUESTION In the instant case Sh. Krishal Lal who has appeared as complainant witness has got exhibited the cheque returning memo which is Ex. CW1/7. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused.
Therefore considering the entire evidence on record it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 02.02.2009 which is Ex. CW1/7 with the reason " Funds Insufficient".
11. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Sh. Krishan Lal who has appeared as Case No. : 13062/09 7 / 16 complainant's witness has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 07.02.2009 which is Ex. CW1/8 and it was sent to the accused vide Speed Post receipt which is Ex. CW1/9 and Acknoledgment Card duly received by the accused which is Ex.CW1/10. The accused submitted that she could not remember whether she received legal notice of demand or not, thereby did not disputed the service of legal notice of demand.
I have perused the legal notice of demand, it bears the correct address of the accused and Acknowledgment Card of RPAD sent on the same address was duly received and signed by the accused.
Considering the evidence on record, I am of the considered opinion that the legal notice of demand was served upon the accused.
12. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, the accused had applied for DDA Housing Scheme 2008 (Ex. CW1/3) and had sought Credit Limit Vide Loan application (Ex. CW1/4) of Rs. 1.50 lacs for the purpose of payment Case No. : 13062/09 8 / 16 of earnest money while applying for the allotment of a flat.
Accordingly, the loan was granted and Arrangement Letter (Ex. CW1/5) was executed between the parties. As per the arrangement between the parties, the accused had to give 3 undated duly filled in cheques, one for loan amount & 2 cheques for interest, before the disbursement of loan amount. The accused complied with all conditions of loan application & accordingly complainant sanctioned the loan.
The above facts are admitted by both the parties. It is the case of the complainant that when flat was not allotted by DDA to the accused under DDA Housing Scheme 2008, it presented the cheque bearing no. 170126 for repayment of loan amount. So, as per complainant, at the time when cheque in question was presented, it was the legal liability of the accused to repay the loan.
On the contrary, it is the case of the accused that, at the time when cheque in question was presented, it was the legal liability of DDA to repay the loan and not her's.
Therefore the bone of contention between the parties is, whether it was the liability of DDA or of accused to repay the loan, at the time Case No. : 13062/09 9 / 16 of presentation of cheque?
Arrangement Letter (Ex. CW1/5) executed between the parties mentions the terms of repayment of loan as follows: In case of allotment: In the event of allotment of flat by DDA, the entire outstanding amount along with interest, cost & charges etc. is required to be adjusted within 15 days from the date of allotment through draw by the DDA. The successful allotee of houses may also opt to repay this loan from the proceed of housing loan if availed. In case of non allotment: The loan will be adjusted from the refund of earnest money by the DDA in the event of non allotment of Flat by the DDA. In case of other contingencies: In case application is rejected/cancelled on account of any reason, whatsoever, including due to non eligibility as per the laid down conditions in the DDA Housing Scheme2008 or due to the reason that false documents/certificates etc. were produced/attached and the DDA forfeit any amount it shall be made good to the Bank by accused.
So, as per arrangement letter, liability to repay the loan would Case No. : 13062/09 10 / 16 be of :
1. DDA If flat is not alloted.
2. Accused If flat is alloted or application was rejected/cancelled for any reason & DDA forfeits the amount.
The fact that flat was not alloted to the accused by DDA under DDA Housing Scheme 2008, is admitted by both the parties. As flat was not alloted as per arrangement letter, it is liability of DDA to refund the loan amount & liability was not that of accused.
Also, it is admitted by AR in his cross - examination that if the accused would be unsuccessful in allotment of the flat, the DDA was to refund the money financed directly to the bank.
Now the question is whether loan was subsisting or not. Arrangement Letter (Ex. CW1/5) executed between both the parties mentions that "the maximum tenure of loan not to exceed 12 months from the date of disbursement of the loan."
Arrangement Letter no where mentions about the tenure of loan except that it not to exceed 12 months from the date of disbursement of the loan. AR in his cross - examination states that tenure of loan was for 3 months but fails to support it with any document. Case No. : 13062/09 11 / 16
Therefore, this court is of the opinion that tenure of loan was for 12 months.
When cheque in question was issued for encashment i.e on 28.01.2009 (within 4 months of entering into loan agreement), the loan tenure was still subsisting. As the loan tenure was still subsisting and flat was not alloted to the accused, in terms of the arrangement letter between the parties, the complainant was to get refund directly from the DDA.
There might be a delay on the part of DDA to refund the loan amount but DDA never refused to refund the amount, as there is nothing on the record to suggest that DDA has ever refused to refund the amount. Rather, AR has admitted in his cross - examination that complainant has received a sum of Rs. 1,45,000/ from DDA in April 2009.
Loan tenure was still subsisting between the parties and flat was not alloted to the accused, therefore, as per arrangement letter, DDA was to refund the loan amount directly to the complainant and DDA never refused to do so.
In the lights of above discussion & appraisal of evidence & facts this court is of the opinion that when the cheque in question was issued i.e. on 28/01/2009, on that date DDA had the liability to pay the Case No. : 13062/09 12 / 16 cheque amount.
In view of above discussion, this court is of the opinion that when cheque in question was presented, at that time there was no legally enforceable debt or liability against the accused.
Further, the complainant has admitted in cross - examination that it has received a sum of Rs. 1, 45,000/ from DDA in April 2009 & accused has paid the sum of Rs. 5,000/ to it. It has received the entire financed amount of Rs. 1,50,000/.
In the light of this admission, at present, there is no liability of accused with respect to cheque in question.
The complainant in it cross examination has admitted that a sum of Rs. 12,701/ is still pending & recoverable from the accused towards the interest & legal charges.
At the time of final arguments counsel for the complainant Sh. Pardeep Bhasin submitted before the court that complainant is not seeking the cheque amount with respect to loan sanctioned but only seeking interest on loan which is caused due to delay in repayment of loan alongwith litigation charges which amounts to Rs. 12,701/ only. The AR in its cross - examination has admitted that complainant has taken another cheque bearing no. 170127 from the accused in blank Case No. : 13062/09 13 / 16 because in case the DDA does not refund the money within time & the interest is more than agreed amount then the same cheque may be used by filling the requisite amount of interest therein.
This admission of AR and submissions of counsel is corroborated by Loan Application Form (Ex. CW1/4), where at no. 7 of Check List Documents, a tick mark is present. It shows that complainant has received 3 cheques, one for loan amount i.e cheque no. 170126 & two cheques for interest, one of them is cheque no. 170127. Therefore, it is part of agreement between both the parties that the cheque no. 170126 can be used only for recovery of loan amount & other cheque i.e cheque no. 170127 will be used for recovery of interest.
Therefore, as per agreement of parties, now complainant cannot use cheque no. 170123 to recover the interest, as it will be a breach of agreement between them.
In view of the evidence on record, I am of the opinion that the accused has discharged his burden and the complainant has, therefore, failed to prove his case beyond the shadow of reasonable doubts. Complainant has failed to prove that the accused had any legal enforceable liability at the time when the cheque in question was Case No. : 13062/09 14 / 16 issued.
13. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE Once it has been established that the cheque was not issued by the accused in discharge of his legal liability mere non payment of the cheque amount within 15 days of the receipt of legal notice of demand is not sufficient to fasten any liability upon the accused U/s 138 Negotiable Instruments Act.
14. As mentioned before, In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
The offence complained of is U/s 138 of Negotiable Instruments Act and one of main ingredients of Section 138 of Negotiable Instruments Act is that "The cheque has been issued in discharge of any legal debt or other liability".
The complainant has failed to prove this essential ingredient of Case No. : 13062/09 15 / 16 Section 138 of Negotiable Instruments Act, therefore, it cannot be proved that accused has committed the alleged offence.
15. In view of the aforesaid discussion, I am of the considered opinion that the complainant has failed to prove his case against the accused beyond reasonable doubts. Accordingly, accused Ms. Poonam W/o Sh. Ashok Kumar is hereby acquitted of the offence u/s 138 Negotiable Instruments Act.
File be consigned to record room after necessary compliance. Announced in the open court today i.e. 19.01.2011. (VIPIN KHARB) MM: DWARKA : 19.01.2011.
Case No. : 13062/09 16 / 16