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Delhi District Court

Complainant vs Umesh Kumar Malik @ Umesh Malik on 24 January, 2020

DLST020090232016




                                         Presented on    :08.10.2019
                                         Registered on   :14.10.2016
                                         Decided on      :24.01.2020
                                         Duration        :Convicted

                            IN THE COURT OF
                          Metropolitan Magistrate
                        AT SOUTH DELHI, SAKET
                      (Presided Over by VINIK JAIN)

                             CT Cases/474030/2016


Mukesh Kumar Choudhary
son of Late Mr.Sodan Singh
r/o C­99, 1st Floor,
Inderpuri, New Delhi.
                                                    .........Complainant

                                        VERSUS

Umesh Kumar Malik @ Umesh Malik
son of Mr.Gyaneder Singh Malik
r/o Mayapuri Colony, Ward No.18,
Gali No.2, Near Dada, Kaithal,
Karnal Road, Haryana.                               ............. Accused

CC No. 474030/2016
Mukesh Kumar Choudhary v. Umesh Malik                                  Page 1 of 20
 Offence punishable under : 138 of Negotiable Instruments Act

                                    JUDGMENT

1. Briefly stated, case of the complainant is that in the first week of January 2016, the accused along with his wife Ms. Isha Malik approached the complainant for a friendly loan of Rs.6 lakhs for construction/renovation and for business/other work. On 11.01.2016, the complainant had given a friendly loan of Rs.6 lakhs to the accused and the accused had given in writing a promissory note dated 11.01.2016 promising that the accused will pay the entire amount and his wife also gave in writing a guarantee letter that in case her husband i.e. accused fails to repay the amount then she will pay the entire amount. In view of his aforesaid liability, the accused had issued one cheque bearing number 000006 dated 11.08.2016 for a sum of Rs.6,00,000/­drawn on HDFC Bank, Kaithal (hereinafter referred to as the 'cheque in question') in favor of the complainant. Thereafter, the complainant presented the said cheque for encashment and the same was returned unpaid upon presentation on account of "funds insufficient" vide return memo dated 17.09.2016.

CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 2 of 20

That a legal notice dated 20.09.2014 was duly sent by the complainant to the accused in this regard, but to no avail. That the accused failed to pay the cheque amount within the prescribed period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'N I Act')is filed.

2. Upon service of summons, the accused entered an appearance on 22.12.2018 and was admitted to bail on 10.01.2019. Notice under Section 251 Cr.PC was served upon the accused on 11.02.2019, to which he pleaded not guilty and claimed trial. In his statement of defence, accused stated that the cheque in question has been signed by him and except the name of payee and date, rest of the details are in his handwriting. Accused has further deposed that he is separately living from his wife and the complainant is the husband of the elder sister of his wife. Accused deposed that the complainant could have got hold of the cheque in question as the cheque in question could have been left by him at his home.

3. The the accused was thereafter allowed to cross examine the CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 3 of 20 complainant under Section 145 (2) of NI Act. After closing of complainant evidence, matter was fixed for recording of statement of the accused under Section 313 Cr.PC. In the said statement recorded on 19.07.2019 the accused stated that he knows the complainant and he has neither issued the cheque in question to the complainant nor he have issued any promissory note to the complainant. Accused further stated that he used to keep blank signed documents and blank signed cheques at his home.

4. Matter was thereafter fixed for defence evidence. Defence evidence was closed on 24.09.2019 and the matter was fixed for final arguments.

Evidence:

5. In order to support his case, complainant examined three witnesses to support his case as CW­2 complainant himself, CW­3 Isha Malik and CW­4 Mr.Sandeep Saini.

CW­2 (complainant) tendered his affidavit Ex.CW1/A into evidence wherein averments made in the complaint were reiterated. He also relied upon various documents such as CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 4 of 20 Ex.CW1/1 which is cheque in question dated 11.08.2016, Ex.CW1/2 which is return memo dated 17.09.2016, Ex.CW1/3 which is the legal notice dated 20.09.2016, Ex.CW1/4 (colly), Ex.CW1/5 & Ex.CW1/6 which are postal receipts, envelopes and tracking report, Ex.CW1/7 (OSR) which is promissory note and Ex.CW1/8 (OSR) which is handwritten note.

CW­3 Ms.Isha Malik tendered his evidence and deposed that he alongwith her husband had approached to the complainant with respect to the advancing the loan earlier. CW­3 further deposed that her husband after taking the loan amount had asked her to write a promissory note on his behalf and thereafter she has also written a guarantee note in favour of the complainant at his residence.

CW­4 Mr.Sandeep Saini tendered his evidence and deposed that on 11.01.2016 he handed over a cash of Rs.2 lakhs to the complainant and the complainant handed over the loan amount of Rs.2 lakhs in front of me to the accused. CW­4 also deposed that the accused asked his wife to write a CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 5 of 20 promissory note on his behalf as his handwriting is not clear. Thereafter, complainant evidence was closed.

6. Accused, on the other hand examined two witnesses in his defence. Accused himself as DW­1 and Mr.Dinesh Malik as DW­2.

Accused himself tendered his evidence as DW­1 and deposed that his relation with his wife since 2009 has been estranged and on 11.01.2016 he went to the house of his brother in Faridabad. DW­1 further deposed that his brother had to purchase some property for which he needed money and he agreed to but the house at Kaithal from his brother. DW­1 also deposed that he had left a signed cheque of Rs.6 lakhs alongwith some blank/white paper to be used for the same purpose by his brother as he had to travel out of Kaithal. DW­1 further deposed that he informed to his brother in the month of July­August 2016 that he could not arrange the money and thereafter the said paper and the cheque were misused by his wife in connivance with her relatives.

CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 6 of 20

DW­2 Mr.Dinesh Malik tendered his evidence and deposed that he had asked his brother to purchase the property as he wanted to purchase another property . DW­2 further deposed that his brother told him that he is arraigning the money for the same and he will be leaving a cheque of Rs.6 lakhs. DW­ 2 also deposed that thereafter the accused called him and told him that he cannot arrange the money.

The law applicable:

7. I have heard the submissions made on behalf of the parties and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles, relevant for adjudication of complaint under Section 138 of NI Act.

Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491at page 422 held as follows :

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 7 of 20 debt or other liability.

(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

The Hon'ble Delhi High Court has held in Satish Kumar vs State NCT Of Delhi & Anr on 1 August 2013 (DHC) that if CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 8 of 20 the accused rebuts the presumption raised under Section 139 and 118 of NI Act by adducing probable defence, then the leverage of presumption in the favour of the complainant vanishes and then the complainant has to prove the case on the touchstone of beyond the reasonable doubt like a regular criminal trial.

Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 : (2007) 3 SCC (Cri) 236 at page 565 held that : " A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act ".

Arguments and appreciation of evidence:

8. Counsel for the complainant through written submissions that all the requirements of Section 138 N I Act have been met with in the present case and hence, the accused be CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 9 of 20 convicted. Counsel for the accused through written submissions has, on the other hand, argued that the cheque in question were not issued in discharge of legal liability and the same has been misused by the complainant and hence, the present case deserves to be dismissed. The following points of determination are to be decided in the present case:

1. Whether the complainant is successful in raising the presumptions under Section 118 read with Section 139 of NI Act?

2. If yes, whether the accused have been successful in raising a probable defence?

POINT OF DETERMINATION NO.1

9. The signatures on the cheque in question bearing Ex.CW1/1 is not disputed by the accused. The aforesaid cheque in question was returned vide return memo bearing Ex.CW1/2. The counsel for the accused has submitted that the aforesaid return memo is not valid. On perusal of Ex.CW1/2, it is clear that it is stamped and signed by the Bank Official and as per CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 10 of 20 Section 146 of NI Act presumption can be raised that the cheque has been dishonored and the accused has not tendered any evidence to rebut this presumption.

10.The legal notice bearing Ex.CW1/3 was sent to the accused vide postal acknowledgments bearing Ex.CW1/4 (colly) and appears to have been served vide tracking report bearing Ex.CW1/6 (colly). The accused has denied that he has received the legal notice. The legal notice bears four addresses of the accused person and one of the address is of Kaithal. The accused (DW­1) in his cross­examination has admitted that till January 2016 he used to live in Kaithal. The transactions pertain to year 2016 only and therefore it was the last known address with the complainant and the legal notice has been sent on that address also. Thus, presumption under section 27 of General Clauses Act may be taken that the legal notice being sent on the correct address was served to the accused.

11.Thus, presumption under Section 139 and 118 NI Act can be raised that the cheque in question was for a legally CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 11 of 20 recoverable debt and for a valid consideration. The point of determination no.1 is decided in affirmative.

POINT OF DETERMINATION NO.2

12.The complainant has strongly relied on two documents which bear Ex.CW1/7 (OSR) & Ex.CW1/8 (OSR). Ex.CW1/7 (OSR) & Ex.CW1/8 (OSR) clearly states that the accused on 11.01.2016 has taken a loan of Rs.6 lakhs from the complainant. The accused has admitted his signature from point A to A on Ex.CW1/7 (OSR). Counsel for the accused has strongly disputed the genuineness of these documents on several grounds which are inter alia that Ex.CW1/7 (OSR)is not in the handwriting of the accused although accused knows to read and write , accused has not signed on the stamp affixed on Ex.CW1/7 (OSR), Ex.CW1/8 (OSR) does not bears the signature of the accused, there is cutting on the document, the wife of the accused has signed Ex.CW17 (OSR) at two places which was not required etc.

13.The accused in his explanation to the signatures on CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 12 of 20 Ex.CW1/7 (OSR) has stated that he had left the blank signed documents at his home which were misplaced by his wife with whom he is having estranged relationship. On the close scrutiny of Ex.CW1/7 (OSR), it comes out that Ex.CW1/7 (OSR) has been written by the wife of the accused Isha Malik and this same fact has been admitted by the complainant himself. The complainant (CW­2) has also deposed that the accused is competent in reading and writing and when the complainant was asked by the counsel for the accused in his cross­examination as to why Ex.CW1/7 (OSR) was not written by the accused himself to which the complainant replied that the handwriting of the accused is not clear and therefore, the wife of the accused volunteered to write the promissory note. The explanation given by the complainant appears to be satisfactory. As far as the question of not signing the revenue stamp by the accused is concerned it does not lead to any inference that the accused had signed the blank document. Both the witnesses to the document Ex.CW1/7 (OSR) i.e. Isha Malik and Sandeep Saini have been called as complainant witnesses. Isha Malik (CW­3) in his examination in chief deposed that the loan of Rs.6 lakhs CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 13 of 20 was given on 11.01.2016 by the complainant to the accused in her presence and thereafter she wrote a promissory note and guarantee note in favour of the complainant at his residence. The witness in her cross­examination has admitted that the relation between her and the accused were strange since June­July 2016. The said witness has also denied the suggestion that Ex.CW1/7 (OSR) and Ex.CW1/8 (OSR) has not been executed at the instance of the accused by her. Nothing has come in her cross­examination which would suggest that she will go to the extent of falsely implicating the accused by fraudulently executing Ex.CW1/7 (OSR) & Ex.CW1/8 (OSR). In the same way, Mr. Sandeep Saini(CW­4) has also deposed that the promissory note was written in his presence by the wife of the accused at the instance of the accused as the handwriting of the accused is not clear.

14.The execution of documents as alleged by the accused has to be seen in the perspective of the defences raised by the accused during the course of trial. While stating his defence at the stage of 251 Cr.PC, the accused has not stated CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 14 of 20 anything regarding the document but only stated that the complainant could have got hold of the cheque in question as the cheque in question could have been left by him at his home. While the recording the statement of the accused under Section 313 Cr.PC, the accused stated that he used to keep blank signed documents and blank signed cheques at his home and further stated that his wife and complainant who are relatives have connived together to institute a false case against him. At the stage of defense evidence, the accused stepped into the witness box and altogether deposed an improved story building on his earlier defences as stated above. The accused (DW­1) deposed that on 11.01.2016, he went to the house of his brother at 10.00 am in the morning and in the evening he met with his brother and on the next morning he left the home of his brother. Thus, the accused is trying to take the plea of alibi here by testifying that the day on which the complainant is alleging that the loan was given and the documents like Ex.CW1/7 (OSR) were executed, the accused was not present in Delhi. Also during the examination in chief, the accused improved the story regarding the blank documents and blank signed cheques.

CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 15 of 20

The accused (DW­1) testified that when he went to the home of his brother on 11.01.2016, his brother told him that he wants to purchase some property for which he needed money and his brother offered him to buy his property at Kaithal. It is further deposed that he told him that he is willing to purchase the property and left a cheque of Rs.6 lakhs which was signed and also left some blank/white paper for the aforesaid purpose. Thereafter, the accused deposed that despite his best efforts he could not arrange the money and later on the cheque and the blank documents were misused by his wife.

15.The testimony of DW­1 could not be relied as there are several inconsistencies in the testimony of DW­1. The aforesaid plea of alibi has been for the first time raised by the accused when he stepped into the witness box. The accused had several opportunities to raise this defence earlier also but the same was not done. In fact, in the application under Section 145 (2) of NI Act, the accused has not revealed anything as to the aforesaid new facts which has been stated by the accused during his examination in chief.

CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 16 of 20

Even for the sake of arguments, if it is believed that the accused on 11.01.2016 went to the house of his brother, still during the whole day the accused had time to travel to Inderpuri and execute those documents and obtained loan as alleged by the complainant because as per the accused himself he reached at the home of his brother in the morning and met his brother in the evening so he had the full day to travel to Inderpuri and make the return trip which would have taken him around 3 to 4 hours in total. As far as the leaving of the blank documents and the cheque, from the whole reading of the examination in chief it evinces that the accused is trying to give an impression that these documents and cheque were left by the accused at the home of his brother in Faridabad. If they were left at the home of his brother in Faridabad, how the wife of the accused had the opportunity to take away those documents and misuse them when it has come on record that she used to reside with the accused at the house situated in Kaithal. Thus, the accused himself has not been able to explain and corroborate his defence by convincing evidences and these all inconsistencies give rise to an inference that the defence led CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 17 of 20 up by the accused is an after thought and a desperate attempt to fill up the lacuna. The accused also called his brother namely Dinesh Malik as DW­2 who has also deposed on the same line as the accused had. But as the testimony of DW­1 is unreliable, no trust can be reposed in the testimony of DW­2 also who appears to be an interested witness.

16.It is argued by the counsel for the accused that the complainant does not have the capacity to advance the loan as the same has not been reflected by him in his ITR. The complainant (CW­2) in his cross­examination has testified that out of Rs.6 lakhs, Rs.2 lakhs was obtained from his friend i.e. Sanjay Saini, Rs.1 lakh was obtained from his wife and rest of the amount was obtained from his saving. CW­4 has affirmed that he has given a loan of Rs.2 lakhs to the complainant so that it could be forwarded to the accused. Counsel for the accused has relied on the judgment of Hon'ble Supreme Court in Sanjay Mishra v. Kaniska Kapoor @ Nikki Crl.LJ 3777 wherein it was held that where there was unaccounted cash amount and it was not disclosed in ITR, the presumption under Section 139 of NI Act can be CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 18 of 20 rebutted. In this regard, it is necessary to point out that the complainant has shown the source of money from where he has advanced the loan. There is no evidence on record which goes on to show that the loan in question was unaccounted money. Although, the accused has admitted that he has not reflected the loan in question in his ITR but in my opinion the same is also not mandatory. Reliance can be placed on this point on the judgment of Hon'ble Delhi High Court in Sheela Sharma v. Mahendra Pal 2016 [3] JCC [NI] 148 wherein it was held that the non­reflection of loan in ITR is irrelevant when the case is supported by other documentary evidences. There are sufficient documents to corroborate the story put forth by the complainant and therefore non reflection of the loan in question in ITR is irrelevant.

Conclusion

17.In view of the above discussion, I am of the considered opinion that the complainant has established his case beyond reasonable doubt by proving all the ingredients under Section 138 N I Act by leading cogent evidence and the CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 19 of 20 accused has failed to probabilize his defence. Accused is hereby convicted for offence punishable under Section 138 N I Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.

Announced in the Open Court on this 24th January 2020. This Judgment consists of 20 signed pages.

                                                Digitally signed
                                        VINIK   by VINIK JAIN
                                                Date:
                                        JAIN    2020.01.24
                                                16:18:05 +0530


                                        (VINIK JAIN)

Metropolitan Magistrate­03 (South), NI Act Saket/New Delhi/24.01.2020 CC No. 474030/2016 Mukesh Kumar Choudhary v. Umesh Malik Page 20 of 20