Delhi District Court
Ccno. 409/2022 Manav Kapoor vs . Veer Bahadur Prajapati Page No. 1 on 31 January, 2023
CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT-02,
SOUTH-EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No.: CC NI ACT/409/2022
MANAV KAPOOR ...Complainant
Versus
VEER BAHADUR PRAJAPATI ... Accused
1. Name & address of the complainant:Mr. MANAV KAPOOR S/O Sh.
JSWANT KAPOOR
R/O 4/57, 3RD FLOOR, GEETA
COLONY, DELHI, 110031 AND
ALSO AT:
HOUSE NO.22/5, PANT NAGAR,
JANGPURA EXTENSION,SOUTH
DELHI 110014.
2. Name & address of the accused: Sh. VEER BAHADUR PRAJAPATI
S/O RAM ASEES TRIPATHI
R/O H. NO. 118, VINAY NAGAR,
GALI NO. 4, NEAR GOLDEN INDIA
PUBLIC SCHOOL FARIDABAD,
HARYANA-121006
ALSO AT:
M-29 (DEEPAK GUEST HOUSE)
GREATER KAILASH PART-I,
M BLOCK MARKET, NEW DELHI-
110048.
3. Offence complained of : U/S 138 of The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 24.01.2023
6. Date of Institution of case : 14.01.2022
7. Date of decision of the case : 31.01.2023
JUDGEMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant Mr. Manav Kapoor (hereinafter referred to as the 'complainant') Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:49:51 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 2 against accused, Sh. Veer Bahadur Prajapati (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that he was having friendly relationship with the accused for many years and thus, on request of accused he gave loan of Rs. 7 Lakhs to the accused on 01.03.2019 for a period of one year for expansion of business of the accused. However, the accused did not return the amount in time and after repeated requests of the complainant for repayment of the amount, on 26.09.2021, the accused gave Rs. 20,000/- in cash to the complainant and had issued two cheques of Rs. 3,40,000/- each for payment of the remaining amount. Thereafter, the accused transferred Rs. 3,40,000/- through RTGS in the bank account of the complainant, pursuant to which the complainant returned one of the cheques to the accused and retained the cheque bearing No. 052105 dated 29.09.2021 for a sum of Rs. 3,40,000/- each drawn on Central Bank of India, Baital Pur Branch, Deoria 274201 (hereinafter referred to as the 'cheque in question'). When the complainant presented the cheque in question with it's banker, the same was dishonoured for the reason "payment stopped by drawer" vide return memo dated 23.11.2021. Thereafter, the complainant issued the legal demand notice dated 06.12.2021 to the accused through speed post on 07.12.2021, calling upon him to make the payment of the remaining amount within 15 days. The legal demand notice from one of the address of the accused was received back unserved with remarks "left without address" and upon the other address of the accused, it was delivered but the accused failed to make the payment despite delivery of the legal demand notice. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 14.01.2022 and prayed that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881and he be also directed to pay compensation to the complainant.
3. Summoning of accused: The court summoned the accused after hearing the arguments at the stage of pre- summoning vide order dated 17.02.2022 and the accused entered appearance in the present case on 18.04.2022.
Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:50:03 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 3
4. Notice: The court has framed notice of accusation under Section 251 Cr.P.C. against the accused on 28.04.2022. 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 pleaded not guilty and claimed trial. The accused admitted his signatures on the cheque in question and he also admitted filling all the particulars of the cheque in question. The accused admitted that he received the legal demand notice from the complainant. In his defence, the accused stated that he had taken loan of Rs. 3 Lakhs from the complainant in November, 2019 on account of illness of his wife and it was interest free loan, however, the complainant later on demanded interest from him, pursuant to which, he had transferred Rs. 3,40,000/- by way of RTGS in the account of complainant. He further stated that he had given the cheque in question as security on 29.09.2021 towards repayment of the loan amount and thus, upon transfer of Rs. 3,40,000/- in the account of the complainant, he demanded return of the cheque but the complainant did not return the same and threatened him, pursuant to which he gave stop payment instructions against the cheque in question. He further stated that the complainant has misused his cheque. On the same date, the statement of accused was recorded U/S 294 Cr. P.C wherein he admitted the correctness of dishonor memo and postal/ courier receipt pursuant to which the bank witnesses mentioned at Sr.No. 2 in the list of the witness of the complainant was dropped.
6. Evidence on behalf of complainant: To prove it's case prima facie, the complainant has examined himself as CW-1 and has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit which is CW-1/A bearing his signatures at point A & B, wherein he has reiterated the averments made in the complaint. The complainant has also relied upon EX. CW1/1 the original cheque in question dated 29.09.2021, EX. CW1/2 the original return memo dated 23.11.2021, EX.CW1/3 the legal demand notice dated 06.12.2021, along with it's postal receipt EX. CW1/4 and it's returned envelope EX. CW1/5 and tracking report EX. CW1/6 (Colly), EX. CW1/7 the reply to the legal demand notice dated 20.12.2021 and EX. CW1/8 the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:50:36 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 4 original hand written letter of the accused. Thereafter, the complainant was subjected to cross examination.
7. During his cross examination, the complainant stated that he knows the accused for approximately 12-15 years and stated that he works as a freelancer in real estate. He deposed that the accused approached him somewhere in Jan-Feb, 2019 for obtaining loan amount and accused was not accompanied by anyone at that time and no written document was executed at the time of advancement of loan of Rs. 7 Lakh as he had advanced this amount to the accused in good faith. He admitted that though he files Income Tax Return, he has not reflected the loan amount in his ITR for the relevant assessment year. He stated that at the time of advancement of loan, he did not obtain any cheque from the accused as he had advanced him loan in good faith and further stated that when the accused could not repay him the loan amount, the accused had given Rs. 20,000/- in cash on 26.09.2021 and for repayment of the remaining loan amount, the accused had given him two cheques including the cheque in question for Rs.3,40,000/- each on 29.09.2021. He stated that he had not given any receiving to the accused at time of obtaining the cheque in question. The complainant was shown the copy of the cheque in question i.e. Mark A and asked whether he has affixed his signatures on this document to which the witness answered in affirmative. He denied the suggestion that he had advanced only Rs. 3 Lakh to the accused and stated that he had given him Rs. 7 Lakh in two installments of Rs. 4 lakhs and Rs. 3 Lakhs in cash. He denied the suggestion that except the cheque in question, the accused has not given him any other cheque and stated that the accused gave him one more cheque which he had returned upon receiving of payment of Rs. 3,40,000/- from the accused through RTGS. He also deposed that the accused had handed him over the cheque in question after filling all it's particulars. He stated that he does not remember the cheque number of the other cheque handed over by the accused, which he has already returned. He admitted that no document was executed qua return of the other cheque. He deposed that he had accepted two cheques of Rs. 3,40,000/- each from the accused towards repayment of the loan of Rs. 7 Lakhs as the accused has already given him Rs. 20,000/- towards repayment of the loan on Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:51:02 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 5 26.09.2021. He deposed that he had advanced the loan amount for 1 year and when the same was not repaid, he had approached the accused post Covid for repayment. He admitted that the accused had made him some payment even before Covid time but stated that this payment was towards the other transactions that they had with each other, as the accused used to take small amount from him several times and he also used to return the same. This witness admitted that he has received payments as reflected in the document Mark B (Colly) from the accused. He denied the suggestion that he had presented the cheque in question and misused the same despite repayment of complete amount by the accused. He admitted that though the accused has written EX. CW1/8 in his presence and at the relevant point of time, the two witnesses whose name are written in the agreement were also present, however, he has not affixed his signatures anywhere in this document. He admitted that it is nowhere mentioned in the said document that he had advanced Rs. 7 lakh to the accused and stated that he had initially given Rs. 6,50,000/- to the accused and thereafter, given him Rs. 50,000/-. He denied the suggestion that he has compelled the accused to put signatures on EX. CW1/8. He denied the suggestion that he has not advanced loan of Rs. 7 Lakhs to the accused. He also denied the suggestion that he had advanced loan of Rs. 3 lakh to the accused and against the same, he had already received Rs. 3,40,000/- from the accused.
8. Examination of the accused under section 313 Cr.P.C: The accused was examined under section 313 Cr.P.C. on 18.05.2022, wherein the accused denied that he took friendly loan of Rs. 7 lakhs without interest from the complainant for one year for his business expansion and stated that he had taken Rs. 3 Lakh from the complainant in November - December, 2019. He also denied that the he did not repay the loan amount within the prescribed period and stated that he has already returned the entire loan amount of Rs. 3 lakh to the complainant including interest of Rs. 40,000/- as the complainant started fighting with him at his shop for repayment. He denied that towards the repayment of loan amount, he had given cash of Rs. 20,000/- to the complainant on 26.09.2021 and for payment of remaining amount, he had also issued two cheques including the cheque in question bearing No. 052105 i.e. EX.
Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:51:12 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 6
CW1/1 dated 29.09.2021 and stated that he had given the cheque in question as security against which he has already transferred Rs. 3,40,000/- to the complainant through RTGS but the complainant did not return his cheque, so he gave stop payment instructions to his bank. He admitted that the cheque in question upon presentation was dishonoured for the reason "Payment stopped by drawer" vide return memo dated 23.11.2021 i.e. EX. CW1/2. He admitted that he received legal demand notice dated 06.12.2021 U/S 138 of the N.I. Act i.e. EX. CW1/3 (corresponding postal receipts i.e. Ex. CW1/4, Ex. CW1/5 is returned envelope and it's tracking report is Ex.CW1/6) from the complainant and stated that he has also filed reply to the said legal demand notice i.e. EX. CW1/7. He admitted his signatures on the cheque in question. He also admitted to have filled all the particulars on the cheque in question including the date and the name of the payee. He admitted knowing the complainant. He stated that he had already return the loan amount to the complainant and he also obtained receiving from the complainant regarding the same while handing over the cheque in question to the complainant. He stated that document i.e. EX. CW1/8 was written by him as he was threatened by the complainant to do so. He stated that this document was written by him at gun point after he was locked in one basement. He further stated that complainant has threatened to kill him several times and also threaten to not let him run his shop. He stated that he intends to lead defence evidence.
9. Evidence on behalf of Accused: In his defence, the Accused has examined himself as DW-1 on 02.07.2022 whereby he adopted his statement recorded U/S 313 Cr. P.C as his examination-in-chief. He further stated that he had taken Rs. 3 Lakhs from the complainant in the year 2019 for delivery of his wife. He stated that the complainant is engaged in business of advancement of loan in GK and he became acquainted with the complainant there only and that the amount of Rs. 3 Lakh was advanced by the complainant without any interest and that no written agreement was executed by the complainant regarding the same. He stated that later on, the complainant started demanding interest 1-2 months after the advancement of loan. He stated that he had started returning the part of the loan amount since December, 2019 Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:51:25 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 7 as reflected in Mark B (Colly) which is now EX. DW1/A (Colly). He stated that against the loan of Rs. 3 Lakh advanced by the complainant; he has already returned Rs. 3,40,000/- at once by RTGS on 05.10.2021, Rs. 20,000/- second time in cash on 26.09.2021 and approximately Rs. 1,56,000/- or Rs. 1,57,000/- in several installments third time to the complainant. He stated that he had given this much of amount against the loan of Rs. 3 Lakhs as the complainant told him that he had adjusted the amount of Rs. Rs.1,56,000/- or Rs. 1,57,000/- paid by the him in several installments towards interest. He stated that he had given the cheque in question to the complainant on 26.09.2021 when he started quarreling with him at his shop for repayment of loan amount and that the complainant assured to return his cheque upon receiving the payment through RTGS. He also stated that he had also taken receiving from the complainant when he had given the cheque in question to him, which is part of record as Mark A now EX. DW1/B. He stated that after transferring the payment of Rs. 3,40,000/- to the complainant by way of RTGS, he demanded return of his cheque from him, however, he did not return the same and started threatening him and thereafter, he gave stop payment instructions to his bank against the said cheque. He stated that the the complainant had also obtained his signatures on EX. CW1/8 by threatening to do away with his life. He admitted receiving the legal demand notice from the complainant and stated that he had also replied to the same which is part of record as EX. CW1/7.
10. During his cross-examination, he stated that he was doing work of selling sweet potato and corn. He stated that he is only 5 th pass and only knows how to affix signature otherwise he is illiterate. He stated that he knows the complainant for 8-10 years and he is in money landing business. He stated that he has no personal relationship or acquaintance with the complainant. He stated that he met with complainant at his shop as he has approached him and told him that he is in money landing business and also told him to tell about any person who needs money on interest. He stated that he used to meet with complainant after gap of every 2-3 years. He stated that the complainant has no shop or office from where he runs his business and that Complainant has never given any visiting card of his business to him. He Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:51:48 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 8 stated that he is unable to produce any document or evidence to show that the complainant is in money landing business. He stated that he had taken loan of Rs.3,00,000/- in cash without interest however, later on, the complainant started demanding interest @10% however, he does not remember the date and time when the complainant started demanding interest. He stated that there was no fixed time for repayment of this amount. He stated that he does not remember the time when he started repayment of the loan amount. He stated that on 26.09.2021, the complainant fought with him at his shop for repayment of the loan amount. He admitted that he has not filed any police complaint regarding this incident so far and sated that he did not file any police complaint as he was threatened by complaint not to file complaint. He stated that on 26.09.2021 he had given the cheque in question to the complainant as security. He stated that the complainant along with 4-5 persons took him to one basement and compelled him to write one hand written note admitting liability for Rs. 6 to Rs. 7 Lakh in lieu of loan of Rs. 3 Lakhs, otherwise they threatened to do away with his life and that when he told the complainant that he has already repaid Rs.1,68,000/-(approximately) to him, then complainant said that he has adjusted that amount towards interest. He stated that on that day, he had also given Rs. 20,000/- in cash to the complainant. He stated that on the cheque, he had written date of 29.08.2021 or 29.09.2021. He stated the he does not remember the cheque number however, it's last digit was '5' and it was of Central Bank of India, Baitalpur, Deoria Uttar Pradesh, branch. He admitted to have filled all the particulars of the cheque himself. He stated that he had given the same to the accused as security and that as on 26.09.2021, he had outstanding liability of approximately Rs. 1 Lakh towards the complainant. He stated that he cannot tell the rate of interest charged by the complainant and that he had returned him Rs. 3,40,000/- against the loan amount of Rs. 3 lakh. He further stated that apart from Rs.3,40,000/-, he had also given Rs. 20,000/- as interest to the complainant on 26.09.2021 as the complainant had threatened to kill him with pistol in his hand. He denied the suggestion that he had taken loan of Rs. 7 lakhs from the complainant and also that he had not given Rs. 20,000/- as interest but towards the part payment of the loan amount. He stated that Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:51:57 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 9 after this incident on 01st day of either September or October, 2021, the complainant told him that he will return the security cheques and he can transfer him Rs. 3,40,000/- by way of RTGS and that thereafter, on 07th day September or October, 2021, he had given transferred Rs. 3,40,000/- by way of account transfer to the complainant. He stated that thereafter, he demanded return of his cheque from the complainant on 5th or 6th day of either September or October 2021 verbally, after RTGS, however, the complainant refused to return the same and told that he will file case on the basis of this cheque. He stated that thereafter, he gave stop payment instructions to his bank on 7th day of either September or October, 2021. He denied the suggestion that the cheque was duly returned by the complainant to him after the said RTGS and the same was destroyed. He stated that hand written note was EX. CW1/8 written on 26.09.2021 which is prior to the date of drawl of cheque. He identified his hand writing and signatures in Column A on hand written note EX. CW1/8 and stated that he had written this note at the instructions of the complainant as he compelled him to do the same. He stated that he does not remember as to how many days prior to handing over of cheque in question, he had written hand written note EX. CW1/8. He admitted that there was gap of some days in between writing this hand note and handing over of the cheque in question and that he had not filed any police complaint in the meantime, though he could have filed the same. He stated that he did not file the police complaint as he was threatened by the complainant not to do so. He admitted that in reply to the legal demand notice he have written that the complainant is engaged in the business of money landing, though he himself have claimed that the complainant had given him loan without any interest. He stated that he had taken loan for delivery of his wife and that she delivered a baby girl in June, 2021, however, he does not remember the expenses incurred on his wife's delivery. He deposed that the medical bills and prescriptions to show expenses incurred on his wife's delivery which are EX.DW1/C (Colly)(OSR.) (Total 43 pages). He stated that he does not have any other bill to rely upon apart from the same which has been filed or tendered by him in the court. He stated that he does not remember the date when he had taken money from the complainant. He Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:52:06 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 10 admitted that he mentioned in para No.3 of reply to the legal demand notice of the complainant that he has taken money from the complainant in November, 2019 for his wife's operation. He admitted that he has brought bills for total amount of approximately Rs.12,000/- to 13,000/- and stated that he could not locate remaining bills regarding treatment of his wife namely Ms. Geeta Prajapati. He admitted that all the medical bills filed by him are from September 2018 to 22 nd June 2019 which is much prior to the time of advancement of loan and that he has not produced any bill of November, 2019 regarding delivery/ operation of his wife. He stated that he does not remember the amount of the installment which was supposed to be paid by him to the complainant qua the return of the loan amount and stated that he has started repayment of the loan amount from 26.12.2019 and record of the same is Mark B(Colly). When Mark B (Colly) was shown to the witness, he denied that he has made any payment prior to 26.12.2019 and after 06.10.2021 and stated that all the payments made by him to complainant are reflected in Mark B (Colly). He admitted that as per the bank statement of complainant of HDFC Bank from 31.03.2018 to 28.02.2021 which is EX.CW1/9 (Colly) containing total 6 pages, he has transferred Rs.6,000/- to the complainant on 06.08.2019, Rs.2,500/- on 28.07.2019, Rs.4,000/- on 07.11.2019, Rs.5,000/- on 22.11.2019, Rs.4,500/- on 07.12.2019 and Rs.5,000/- on 14.12.2019. He denied the suggestion that document Mark B is incorrect as he has not reflected the above mentioned admitted payment in document Mark B. He admitted that even prior to November, 2019, he had other financial transactions with the complainant. He stated that he had taken small amount from the complainant on previous occasions and had returned the same. He denied the suggestion that he had taken Rs.7 Lakh from the complainant and also denied that out of this amount, he had only returned total Rs.3,60,000/- and not entire loan amount. He also denied the suggestion that the Paytm transaction as reflected as Mark B (Colly) are not pertaining to the loan transaction in question and these pertains to other small transactions between the parties. He also denied the suggestion that he has outstanding liability for payment of Rs.3,40,000/- towards the complainant. He also denied the suggestion that he has not paid any interest amount to the complainant Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:52:15 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 11 regarding the loan transaction in question.
11. In support of his defence, the accused has also examined Mr. Satish Singh who is one of the signatory of EX. CW1/8 as DW-2 who deposed that he knows the accused since last 20 years and that Accused is running a business of sale of sweet potatoes and corn at New Delhi. He stated that he knows the complainant since last 10 years and that the complainant is engaged in business of money landing. He stated that in August, 2021, he visited the shop of accused being a regular customer and saw that the accused and complainant were fighting with each other. He stated that when he inquired about the same from the accused, then the accused informed him that he had taken the amount of Rs. 3 Lakhs from the complainant. He stated that he told the accused to return the money of the complainant and the accused assured to return the said amount and sought time for the same and the dispute was closed. He stated that after one week, of the said incident, the accused had given the cheque of Rs. 3,40,000/- to the complainant in presence of this witness in August, 2021 but the complainant was not ready to accept the cheque without any security.
He stated that thereafter, the complainant called a meeting of 4-5 persons after few days and this witness was also called by the accused in the said meeting held at Paan Shop nearby GK-I where the accused was running his business. He stated that he reached there after 15 minutes of starting of meeting and saw that the complainant was threatening the accused in one basement and the complainant forced the accused to execute a hand written document regarding the repayment of the said loan. He stated that he also signed on the said document as the complainant asked him to do so. He stated that he was told that the accused and complainant have reached to an amicable settlement. He stated that he did not read the said document. He stated that the accused told him that he had taken loan of Rs. 3 Lakhs from the complainant and in lieu of the same, he had given one cheque of Rs. 3,40,000/-towards repayment of this loan amount of Rs. 3 Lakhs. He stated that no written document was executed at the time of handing over of the cheque.
12. During his cross examination, he stated that he works in shop of gift items/ magazine for last 32 years and he knows the accused for last 20 years and Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:52:27 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 12 complainant for last 10 years. He stated that in August, 2021, both the parties were fighting with each other, however, he does not remember the exact date of incident.4 He stated that he asked the accused to return Rs. 3 Lakhs to the complainant and in lieu of the loan transactions between the parties, the accused had given one cheque of Rs. 3,40,000/- to the complainant in the presence of this witness in August, 2021, after few days of the incident. He stated that the complainant was not present at that point of time and the accused did not hand over the cheque of Rs. 3,40,000/- to the complainant in his presence. He stated that after 1 week of the same, the complainant had called one meeting along with 4-5 persons in one basement, however, he does not know name of these 4-5 persons. He stated that he only knows one of them who is the owner of Prince Pan Chat Bhandar. He stated that he reached there after some time and when he reached there, he saw that out of these 4-5 persons, one person whose name, he does not know was threatening the accused that he will extract money from the accused. Thereafter, the owner of Prince Pan Chat Bhandar, asked this witness to affix his signatures on one already hand written note/ document EX. CW1/8 in Column B. He stated that he does not know the name of owner of Prince Pan Chat Bhandar. He also stated that he does not know as to who had written this document EX. CW1/8 and that he did not read document EX. CW1/8 and affixed his signatures on the same without reading the same. He stated that he is not aware about the contents of the documents. He stated that at the time of affixing his signatures on EX. CW1/8, he was not aware about the outstanding liability of accused towards the complainant. He stated that he was not threatened or pressurized to affix his signatures on EX.CW1/8. He stated that before affixing his signatures, he did not inquire about the contents of the document EX.CW1/8. He stated that this incident is of evening at about 7 PM and that before writing this document EX. CW1/8, the accused had already given one cheque of Rs. 3,40,000/- to the complainant on some other date. He stated that the accused did not hand over any amount to the complainant in his presence. He stated that he does not know as to who had threatened the accused while executing the hand written note EX. CW1/8. He stated that after the execution of hand written note EX.CW1/8, the accused did not tell that Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:52:35 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 13 he was threatened by anyone. He admitted that he or the accused did not file any police complaint regarding this incident. He stated that he did not see that any one was having gun in the basement. He admitted that accused was not beaten up by anyone and that no one threatened the accused to do away with his life in his presence. He also admitted that he has never suggested accused to lodge police complaint till date. He denied the suggestion that the accused was having outstanding liability of Rs. 7 Lakh towards the complainant and that the accused was not threatened while executing hand written note EX.CW1/8. After examination of this witness, DE was closed vide separate statement of the accused recorded on 03.09.2022 and the matter was kept for final arguments.
13. Final Arguments: Learned counsel for the complainant with the help of Section 118 (a) and Section 139 of the Act argued that complainant has successfully proved guilt of accused for the commission of offence punishable under Section 138 of the Act by way of ocular as well as documentary evidence on record. He further argued that though the accused has claimed that the purpose of advancement of loan was not towards his business expansion but it was for treatment of his wife, however, he has failed to establish the same. He further stated that though the accused has claimed that he had repaid the entire loan amount by transferring Rs. 3,40,000/- by way of RTGS, in favour of the complainant as he had only taken loan of Rs. 3 Lakhs from the complainant, however, this version of accused is not in consonance with contents of EX. CW1/8, execution of which has been admitted by the accused.
14. On the other hand, Learned counsel for the accused argued that complainant has failed to establish the guilt of accused for the commission of offence under Section 138 of the Act as the security cheque given by accused to the complainant has been misused by the complainant, as admittedly the accused had made payment of Rs. 3,40,000/- to the complainant by way of bank transfer and the loan amount advanced was only Rs. 3 lakhs, thus, the complaint itself is not maintainable as the amount mentioned in the cheque in question was not due on the date of it's presentation. In support of his submissions, he has placed reliance upon judgment in Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:52:45 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 14 the case titled as Dashrathbhai Trikambhai Patel v Hitesh Mahendrabhai Patel & Anr. , Criminal Appeal No. 1497 of 2022. He has also argued that the complainant has failed to prove the advancement of loan in favour of the accused as admittedly he has not reflected the same in his ITR. In support of his submissions, Ld. Counsel for accused has relied upon the judgement of Hon'ble Delhi High court in Vipul Kumar Gupta v Vipin Gupta, decided on 24.08.2012. Ld. Counsel for accused further argued that the complainant has even failed to establish his financial capacity to advance the loan amount, thus, this fact cannot be relied upon that the complainant advanced loan of Rs. 7 Lakhs in favour of the complainant. In support of such submissions, Ld. Counsel for complainant has relied upon Rajaram S/o Sriramulu Naidu (Since Deceased) through LRs v. Maruthachalam (Since Deceased) Through LRs., in Crl. Appeal No. 1978 of 2013. Thus, Ld. Counsel for accused has prayed that the accused be acquitted.
15. I have heard both the learned counsels, pursued the material on record and considered the submissions advanced.
16. Appreciation of evidence and finding: Coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque. To bring home the 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,
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; Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:52:59 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 15
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.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
17. Thus, for securing conviction under section 138 of NIA following points are required to be proved:
a) The cheque was issued by the drawer in discharge of any debt or other liability.
b) It must be legally enforceable debt or liability.
c) The cheque must be presented by payee within period of 3 months or it's
validity whichever is earlier.
d) The cheque is dishonoured because of insufficient funds or it exceeds the
arrangement.
e) A legal notice in writing demanding the payment of cheque is issued
within 30 days of the receipt of information from the bank.
f) There is default by the drawer to make the payment within 15 days from the date of the receipt of notice.
g) The complaint is filed within 30 days from the date of cause of action.
18. 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. 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. AISHWARYA by Digitally signed AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:53:08 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 16
19. In the present case, this fact is not in dispute that the accused has handed over the cheque in question to the complainant, after affixing his signatures and after filling all it's particulars. It is also an admitted fact that the cheque in question has been presented within it's validity period and it has been dishonoured with remarks 'payment stopped by drawer', vide return memo dated 23.11.2021. This fact is also not in dispute that the legal demand notice was sent by the complainant within limitation and it was received by the accused. It is also an admitted fact that despite receiving the legal demand notice and filing reply to the said legal demand notice, the accused did not make any payment. Further, thereafter, this complaint has been filed within limitation. Thus, all the abovementioned ingredients from point (c) to (g) are satisfied.
20. Thus, the only question left to be determined is whether the cheque in question has been issued in discharge of any existing legally enforceable debt or liability or not. The case of the complainant is that on 01.03.2019, he had given friendly and interest free loan of Rs. 7 Lakhs to the complainant for one year and when the accused did not make the payment of the same after expiry of one year, after several follow ups, on 26.09.2021, the accused gave Rs.20,000/- in cash to the complainant and for payment of remaining amount , the accused had given the cheque in question for Rs. 3,40,000/- along with another cheque of same amount, in lieu of which the accused later on transferred Rs.3,40,000/- in the bank account of the complainant and thus, the other cheque was returned to the accused. However, the cheque in question dated 29.09.2021 upon presentation was dishonoured for the reason "payment stopped by drawer" vide return memo dated 23.11.2021, which led to filing of this complaint. Per contra, the version of the accused as stated during notice framed U/S 251 Cr.P.C is that he had taken interest free loan of Rs. 3 lakhs from the complainant in November, 2019 and in lieu of the same, he had transferred Rs. 3,40,000/- to the complainant and his cheque in question which was given as security was not returned by the complainant despite demand, due to which he gave stop payment instruction to his bank. Further, in reply to the legal demand notice i.e. EX. CW1/7 dated 20.12.2021, the accused has stated that though the accused initially told Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:53:16 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 17 him that the loan was interest free, later on he demanded interest and adjusted Rs. 1,47,000/- given by the accused through bank transfer in payment of interest along with another Rs.20,000/- which was given in cash and demanded approximately Rs. 3,50,000/- against the loan of Rs. 3 lakhs, pursuant to which the parties entered into settlement and the accused gave the cheque in question dated 29.09.2021 for a sum of Rs. 3,40,000/-, as security with the assurance to give cash against this amount and later on accused transferred this amount of Rs. 3,40,000/- by way of RTGS to the complainant and demanded return of his cheque, but the same was not returned by the complainant. In reply to the legal demand notice, the accused has nowhere stated that he was threatened to execute any document/ settlement by the complainant, however, during his statement U/S 313 Cr.P.C for the first time accused stated that he wrote document EX. CW1/8 as he was threatened by the complainant along with 4-5 bouncers at gun point. Similar version the accused has also given during his deposition made before this court on 02.07.2022 and to prove this fact that he was threatened to execute this document, the accused has also examined DW-2 Sh. Satish Singh.
21. Ld. Counsel for the accused during final arguments has tried to dispute the loan transaction by arguing that the complainant did not have financial capacity to advance the loan amount and has relied upon judgment in case titles as Rajaram S/o Sriramulu Naidu (Since Deceased) through LRs v. Maruthachalam (Since Deceased) Through LRs., in Crl. Appeal No. 1978 of 2013 in support of his submissions, however, this judgment is not applicable in the present facts, as in the present case, the accused has himself admitted that he received loan of Rs. 3 lakhs from the complainant and also stated that on prior occasions also, he has received loan from the accused. Thus, the financial capacity of the complainant to advance the loan amount is established. However, it is pertinent to point out that through the trial, the accused has disputed the fact that the complainant has advanced him amount of Rs. 7 lakhs on 01.03.2019 as stated in the complaint and has claimed that he has only received loan of Rs. 3 lakhs from the complainant in November, 2019. With respect to the time of advancement of loan and amount advanced, the complainant during his Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:53:27 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 18 testimony stated that the accused approached him for obtaining loan amount in January- February, 2019 and amount of Rs. 7 lakh was advanced on 01.03.2019 and at the time of advancement of this loan of Rs. 7 Lakhs, no written document was executed. The complainant has claimed that he advanced this amount to the accused without charging any interest as he was having friendly relations with the accused, however, the accused has denied this fact and rather has claimed that the complainant is a moneylender and he charged high interest from him. However, despite such submission of the accused, the complainant has not led any evidence to show that he was having such friendly relationship with accused that he could advance such huge amount to the accused without charging any interest, without any security and without execution of any written document/obtaining any receipt. Though, the complainant admitted that he files income tax return, however, he stated that he has not reflected this amount in his ITR. The complainant has not given any explanation as to why he did not mention the same in his ITR if he has advanced such huge loan amount to the accused in cash. The only explanation could be that it was a friendly loan given on account of friendly relationship between the parties. However, the accused throughout the trial has denied the fact and has claimed that the complainant is a private Financer who advances loan on very high rate of interest and he has obtained interest of approximately Rs. 1,47,000/- and Rs. 20,000/- in cash against the loan of Rs. 3 Lakhs given to him and also received Rs. 3,40,000/- by way of RTGS against the said loan. Despite all these facts having been mentioned in the reply to legal demand notice EX. CW1/7, the complainant has not lead any evidence to show that he had friendly relationship with the accused or that he did not advance the loan amount to the accused on interest. The accused has stated that he has started making repayment of the loan amount in parts to the complainant since December, 2019 by way of account transfer and he made these payments till March, 2021, which is also reflected in EX. DW1/A (Colly). The complainant has admitted these payments, however, stated that these payments are with respect to other transactions between the parties. If after the advancement of loan in question, the complainant was receiving payments from the accused with respect to other transactions between the parties, it Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:53:38 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 19 was imperative upon the complainant to disclose the same in the complaint and evidence, however, for the reasons best known to him, the complainant has not mentioned about any such previous transactions between the parties either in the complaint or in his testimony before this court. The complainant has nowhere mentioned the time of advancement, amount advanced and whether the previous loans given on prior occasions have been repaid or not, so that the court could determine if the complainant has received payments as reflected in EX. DW1/A (Colly) with respect to this transaction or other transactions between the parties.
22. It is also pertinent to point out that the complainant has not specified any date of advancement of loan in his testimony before the court, though in the complaint, it is stated that the entire loan amount of Rs. 7 Lakh was advanced on 01.03.2019. In his cross-examination, the complainant initially stated that he has given amount of Rs. 7 Lakhs to the accused after his demand in January-February, 2019, however, later on, he stated that he had given this amount to the accused in two instalments of Rs.4 lakhs and Rs. 3 Lakhs in cash. Later on, when the complainant was questioned regarding document EX. CW1/8, he stated that he had initially given Rs. 6,50,000/- to the accused and thereafter, he gave him Rs.50,000/-. Thus, there are material contradictions in the statement of complainant regarding the number of instalments and the amount of instalments vide which the loan was advanced. It is also pertinent to point out that in the entire complaint, the complainant has nowhere stated that he has advanced the amount to the accused in instalments, which creates doubt in the story of the complainant that loan of Rs. 7 lakh was advanced by the complainant to the accused on 01.03.2019.
23. To establish the transaction between the parties, the complainant has primarily relied upon the document EX. CW1/8. Though the accused has admitted his handwriting and signature on this document, however, he has claimed that he was threatened at gun point to write this document. To support this fact, the accused has also examined DW-2 Satish Singh, however, DW-2 has nowhere stated that the accused was threatened at gun point to execute this document and he also stated that the accused was not beaten up by anyone for executing this document. Further, Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:53:46 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 20 admittedly DW-1 and DW-2 did not file any police complaint regarding such alleged incident and the accused has also not mentioned anything about such incident in reply to the legal demand notice, thus, the accused has failed to prove that he was compelled to execute this document EX. CW1/8 and thus, this document can be read in support of the case of the complainant. However, in this document EX. CW1/8, it is not mentioned anywhere that the complainant advanced amount of Rs. 7 lakhs to the accused, rather it suggests that the amount of Rs. 6,50,000/- was to be repaid by the accused to the complainant from August, 2021, which further creates dent in the story of the complainant. As according to the version of the complainant, this document was executed in September, 2021 and had that been the case, the accused could not have agreed to make payment of any amount from August, 2021 vide some undertaking executed in September, 2021.
24. Further, admittedly, against the loan transaction, the complainant has received Rs. 3,40,000/- by way of RTGS and Rs. 20,000/- in cash thus, even going by the contents of EX. CW1/8, the outstanding liability of accused could not have been more than Rs.2,90,000/- whereas the cheque in question has been presented for Rs. 3,40,000/-, thus, it cannot be said to have been issued in discharge of any existing legally enforceable debt or liability. Although, there is presumption regarding the cheque having been issued by the drawer in favour of the drawee as per Section 139 of NI Act, however, this presumption is a rebuttable presumption. To rebut the presumption, the accused is required to prove that the cheque in question has not been issued by him in discharge of any existing liability or legally recoverable debt, the burden of proof being preponderance of probabilities. 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. 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 Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:53:56 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 21 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 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..."
25. In the present case, as discussed above during his testimony, the complainant has failed to specify any date or month of advancement of loan to the accused. Admittedly, the complaint has failed to produce any loan agreement or receipt to show that the amount of Rs. 7 lakhs was advanced by him in cash to the accused. The amount of loan has also not been reflected by the complainant in his ITR, though he states that he is an income tax payee. An amount of Rs. 7 Lakhs cannot be said to be a small amount which an ordinary person would not reflect in his income tax return, in case the same has been lent to a person. Further, regarding the advancement of amount of Rs. 7 Lakhs on 01.03.2019, the complainant himself has contradicted his story by stating in his cross-examination that this amount was given in two Digitally signed AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:54:02 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 22 instalments of Rs. 3 Lakhs and rs. 4 Lakhs in cash at one place and at other place, by stating that it has been given in instalments of Rs. 6,50,000/- and thereafter, in instalments of Rs. 50,000/-. Both these versions of the complainant are contrary to his own averments made in the complaint as per which the entire amount of Rs. 7 lakhs was advanced on 01.03.2019. Admittedly, as per the averments made in the complainant against the alleged loan transaction, the complainant has already received Rs. 3,40,000/- by RTGS and Rs. 20,000/- in cash from the accused and even the document relied upon by the complainant itself i.e. Ex.CW1/8 do not show that the outstanding liability of the accused was more than Rs. 6,50,000/-, thus, the cheque in question which has been presented on 23.11.2021 for a sum of Rs. 3,40,000/- cannot be said to have been issued in discharge of any existing debt or liability, especially when the complainant has received several payments from the accused even after advancement of alleged loan in question as reflected in EX. CW1/D (Colly) regarding which the complainant has not given any cogent explanation. Though the complainant has stated that he has received Rs. 3,40,000/- from the complainant qua another cheque given by the accused to him with respect to same loan transaction, however, the complainant has failed to disclose particulars of any such other cheque and he has not even filed copy of any such cheque on record to substantiate his story, despite specific submission of the accused that he has only received Rs. 3 lacs, which he has repaid by transferring Rs. 3,40,000/- by way of RTGS in October, 2021 and despite that the complainant did not return his cheque given for same amount as security for this payment. All these facts, supports the defence of the accused that he did not have liability for payment of cheque amount towards the complainant and the sum of rupees 3,40,000/- represented on the cheque which has been presented on 23.11.2021, was not the 'legally enforceable debt' on the date of it's maturity as the offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed. On this point, it is relevant to refer to the judgment of Hon'ble Apex Court in Dashrathbhai Trikambhai Patel v Hitesh Mahendrabhai Patel & Anr. , Criminal Appeal No. 1497 of 2022 , wherein it has Digitally signed been held that- by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2023.01.31 16:54:10 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 23 "...30. In view of the discussion above, we summarise our findings below:
(i) For the commission of an offence under Sec-
tion 138, the cheque that is dishonoured must rep-
resent a legally enforceable debt on the date of maturity or presentation;
(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the bal-
ance, if any. If the cheque that is endorsed is dis-
honoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;
(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity.
Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said amount of money' has been interpreted by judgments of this Court to mean the cheque amount.
The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section
138..."
26. In view of discussion made above, it becomes clear that in the present case, the complainant has failed to establish that he advanced the loan of Rs.7 Lakhs to the accused on 01.03.2019 and the outstanding liability of the accused towards the complainant on the date of presentation of the cheque i.e. 23.12.2021 was Rs. 3,40,000/-. Thus, it cannot be said that the amount of Rs. 3,40,000/- for which the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2023.01.31 16:54:36 +0530 CCNo. 409/2022 Manav Kapoor Vs. Veer Bahadur Prajapati Page No. 24 cheque was presented by the complainant on 29.09.2021, is covered under the expression "legally enforceable debt' U/S 138 NI Act, which further suggests that the accused has rightly issued stop payment instructions to his banker against the cheque in question.
27. In view of discussion made above, it becomes clear that in the present case, the complainant has failed to establish the first ingredient of the offence U/S 138 NI Act i.e. the issuance of the cheque in question in discharge of any legally enforceable debt or any other liability, as the complainant has failed to establish the advancement of loan of Rs. 7 lakhs in favour of the accused on 01.03.2019. Accordingly, I have no hesitation to hold that the complainant has failed to establish the liability of the accused under Section 138 of the Negotiable Instruments Act, thus, accused Sh. Veer Bahadur Prajapati stands acquitted for the commission of offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS and Layers forthwith.
Digitally signed
AISHWARYA by AISHWARYA
SHARMA
SHARMA Date: 2023.01.31
16:54:50 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 31.01.2023 MM (N.I. ACT)Digital Court-02/SED,
Saket Courts, New Delhi