Punjab-Haryana High Court
Sameer Nagpal vs Raj Kumar Mittal on 26 August, 2014
CRM - A - 708 - MA of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA,
AT CHANDIGARH
-.-
CRM - A - 708 - MA of 2013 (O&M)
Decided on : August 26, 2014
Sameer Nagpal ... Appellant
Versus
Raj Kumar Mittal ... Respondent
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr. Gaurav Sethi, Advocate, for the appellant.
Mahavir S. Chauhan, J. (Oral)
Crl. Misc. No. 39052 of 2013 For the reasons stated in the application, delay of 89 days in filing the appeal is condoned and the application is disposed of. CRM-A-708-MA of 2013 Sameer Nagpal, appellant here-in, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') against the respondent on the allegations that:-.
"the accused had friendly relations with the complainant and the accused asked the complainant to lend a friendly loan of Rs.5,00,000/- to him as the accused was in need of the same for domestic purposes. The accused undertook to repay the said TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 708 - MA of 2013 -2- amount after some time. The complainant believing the accused advanced the loan of Rs.5,00,000/- to the accused during the month of December 2009 and thereafter the accused did not return the said amount as agreed. The complainant visited accused several times and requested him to return the said loan amount, but the accused delayed the matter on one pretext or the other and ultimately the accused issued a cheque bearing No. 030882 dated 25.01.2010 from his account account No. 304010100014678 of UTI Bank Ltd., situated at 1- 2, Caliber Market, Rajpura, District Patiala, in favour of the complainant. At the time of issuing the cheque, the accused assured the complainant the said cheque will be honoured as and when the same will be presented in the bank for encashment. On 27.01.2010, the complainant presented the cheque in his account No.16221 (Present A/c No.1395695969) with his banck i.e. Central Bank of India, Rajpura Town, Gurudwara Road, Rajpura for clearance. The said cheque was returned back by the bankers of the accused vide memo dated 28.01.2010 with the remarks "Insufficient Funds" and the same was returned back to the complainant. The complainant approached the accused and requested the accused to pay the amount in cash as the cheque issued by the accused has been dishonoured. Then the accused assured the complainant that TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 708 - MA of 2013 -3- the cheque may be presented again and this time the cheque shall be honoured. On the asking of the accused, on 20.02.2010, the complainant again presented the cheque with his bank i.e Central Bank of India, Rajpura Town, Gurudwara Road, Rajpura for clearance. The said cheque was returned back by the bankers of the accused vide memo dated 22.02.2010 with the remarks "Insufficient Funds" and the same was returned back to the complainant. The complainant again approached the accused and requested the accused to pay the amount in cash as the cheque issued by the accused has been dischonoured. Then the accused assured the complainant that the cheque shall be honoured this time. On 19.04.2010, the complainant again presented the cheque with his bank i.e. Central Bank of India, Rajpura Town, Gurudwara Road, Rajpura for clearance. The said cheque was again returned back by the bankers of the accused vide memo dated 20.04.2010 with the remarks "Insufficient Funds" and the same was returned back to the complainant. Thereafter, the complainant asked the accused verbally to pay the amount of cheque but the accused flatly refused to do so. The complainant got served a Regd. Legal notice dated 30.04.2010 upon the accused through registered AD requesting him to pay back the loan amount within the stipulated period. But the TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 708 - MA of 2013 -4- accused intentionally did not receive the said legal notice, which was received back by the counsel of complainant as unclaimed. The accused failed to make the payment of legally enforceable debt inspite of the legal notice given to him, which was intentionally not claimed by him."
After pre-summoning evidence, respondent was served a notice of accusation, to which he pleaded not guilty and claimed trial. Complainant examined material witnesses and respondent was examined under Section 313 of the Code of Criminal Procedure, 1973 . No evidence in defence was led by the respondent.
After hearing both the sides, learned Judicial Magistrate, Ist Class, Patiala ('trial Court' for short) dismissed the complaint vide judgment dated 12.03.2013, by observing as under:-
"The complainant has himself stepped into the witness box as CW1. He has reiterated, on oath, the facts stated by him in his complaint and has proved the documents i.e cheque as Ex.C1, memos as Ex.C2, Ex.C3 and Ex.C4, copy of legal notice as Ex.C5, postal receipt as Ex.C6, unclaimed register cover as Ex.C7, AD as Ex.C8, counter slips as Ex.C9, Ex.C10 and Ex.C11. However, the complainant in his cross-examination, has admitted that he did not meet Raj Kumar after 2009. So, if the complainant did not meet Raj Kumar after 2009, how would accused issue the cheque in question in the year 2010 in TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 708 - MA of 2013 -5- favour of the complainant to discharge his debt. He also admitted that the cheque was blank. Besides, accused has placed on file his Income Tax Returns for the year 2008-2009 and 2009-2010 in which he has shown his income to be Rs.1,15,000/- and Rs.107149 respectively. It can not be believed that a person who is showing Rs.1,15,000/- and Rs.107149 as his income would lend an amount of Rs.5 lacs to the accused and that too without any documentation. No documentary proof/evidence has been placed on file by the complainant to show such advancement by the complainant to the accused. More so, when the accused does not admit his friendly relations with the complainant.
All these factors create a doubt in the mind of the Court regarding the fact that the accused issued the cheque in question to the complainant to discharge his liability/debt of Rs.5 lacs given to him by the complaint and giving benefit of doubt to the accused, the accused is acquitted of notice of the accusation served upon him. Bail bonds and surety bonds are discharged. File be consigned to the record room."
The appellant seeks grant of leave to appeal against the aforesaid judgment.
I have heard learned counsel for the appellant on merits. Learned counsel for the appellant has not been able to rebut the TRIPTI SAINI 2014.08.29 10:10 I attest to the accuracy and integrity of this document CRM - A - 708 - MA of 2013 -6- observations of the trial Court. It is very candidly admitted by learned counsel that the amount of Rs.5,00,000/- stated to have been lent as a friendly loan, was not reflected in the income tax returns of the appellant.
In view of these circumstances, application for grant of leave to appeal fails and is dismissed, accordingly.
[ Mahavir S. Chauhan ]
August 26, 2014 Judge
tripti
TRIPTI SAINI
2014.08.29 10:10
I attest to the accuracy and
integrity of this document