Delhi District Court
Ram Kumar vs Prakash Kaur (Since Expired) on 8 March, 2022
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE :
SOUTH WEST DISTRICT DWARKA COURTS :
NEW DELHI
CA No. 124/2020
CNR No. DLSW01-002783-2020
Ram Kumar
S/o Sh. Banwari Lal,
R/o H No. E-39,
Nanhey Park,
E-Block, Matiyala
Uttam Ngar, Delhi 110059
.....Appellant
Versus
Prakash Kaur (since expired)
W/o Late Dharambir Singh Gahlawat
Through her Legal Heirs
1. Pramod Kumar Gahlawat
2. Praveen Kumar
Both residents of
R/o New T-139, Sunday Market,
Uttam Nagar,
New Delhi 110059
3. Smt Poonam
R/o 62, Gali Gugan Singh Haveli,
Pooth Kala Village,
Delhi 110086
.....Respondents
Date of Institution : 07.03.2020
Date of Arguments : 28.02.2022
Date of pronouncement of Decision : 08.03.2022
Argued by: Sh. Harsh Behl, counsel for the appellant.
Sh. Vinay Gupta, counsel for the respondent.
CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 1 of 8
JUDGMENT:
1. Present appeal is directed against judgment of conviction dated 29.01.2020 and order on sentence dated 06.02.2020, vide which the appellant has been convicted for the offence under Section 138 N I Act and sentenced to pay compensation for an amount of Rs. 15 lacs along with interest @ 9% w.e.f 07.12.2017, i.e the date of issuance of cheque within 30 days and in default of payment of compensation, to undergo SI for a period of 3 months.
2.1 Briefly stated as per the case of complainant, she had given an amount of Rs. 15 lacs, as loan, to the accused for starting a new business in August, 2017. Accused had assured to repay said amount by December, 2017. Towards discharge of his liability, accused issued the cheque in question, for an amount of Rs. 15 lacs. On the assurance of the accused that the cheque would be honoured, complainant presented the same to the bank. However, the same was returned unpaid, vide memo dated 16.12.2017 for the reasons of 'insufficiency of funds'. A notice of demand dated 27.12.2017 was issued to the accused. However, despite service of the same, appellant/accused failed to make the payment of cheque amount within 15 days of receipt of the same. Therefore, complaint was preferred by complainant.
2.2 Ld. Trial court took cognizance of the offence under Section 138 Negotiable Instruments Act and summoned accused. On appearance of accused, trial court served him with notice U/s 251 Cr.P.C. In response to said notice, accused took the stand that he CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 2 of 8 had not taken any loan of Rs. 15 lacs from the complainant. He had instead taken a loan of Rs. 50,000/- from the son of the complainant namely Pramod, 3-4 years earlier, which he had repaid. Three blank signed cheques had been taken by said Pramod as security and the cheque in question was one of those cheques. Liability of the accused towards the complainant was denied. He also stated that Pramod had also taken original property documents qua his property no. E-35, Nanhe Park, Matiala, Uttam Nagar, New Delhi.
2.3 Complainant in support of her case, examined herself as the sole witness whereas accused examined himself as well as his son as defence witnesses.
2.4 On the basis of evidence, and material on record, Ld. Trial court vide the impugned judgment, held the appellant guilty, employing the presumptions under Section 118/139 of the Negotiable Instruments Act. Trial court took the view that it was the accused, who had to prove his innocence, either by adducing his evidence or by punching holes in the case of the complainant. Rejecting the defence taken, trial court held the appellant guilty.
3. Aggrieved by the judgment of conviction, present appeal has been preferred.
4. It is pertinent to mention that during the pendency of appeal, respondent Prakash Kaur passed away and on an application being moved by counsel for respondent, her LR's were impleaded.
5. Sh. Harsh Behl, Counsel for the appellant has argued CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 3 of 8 that trial court has taken an absolutely incorrect view, as the alleged amount of loan, as huge, as 15 lacs is stated to have been paid by the complainant in cash. There is no receipt executed for the said amount. The alleged eye-witness, before whom the money was exchanged namely Subhash has not been examined by the complainant. It is next argued that duration of the alleged loan i.e August, 2017 to December, 2017 and the purpose of loan statedly for starting a new business, do not make corroboration. Loan for such a huge amount for starting a new business, would not be payable within a period of three months. Morevoer, no date for alleged payment has been pleaded or proved. It is next argued that the complainant and her sons over a period from 2008 to 2018 have taken two properties of the appellant/accused bearing No. E-39 and E-35, Nanhe Park, Matiala, Uttam Nagar, New Delhi and also three cheques, which raise a presumption that the complainant party is in the business of money lending without any licence or permission. Accused, who is a poor vegetable seller, has been falsely involved by the complainant and her sons. He is being victimized along with his family. Several litigations have been commenced by the complainant and her sons against the accused and his family members. It was merely a loan for an amount of Rs. 50,000/-, which had been taken by the appellant, from the son of complainant, for which the documents were created and are being misused by the complainant. The said amount already stands repaid. Admittedly, the cheque was blank inasmuch as only the signatures were made by the accused. Rest of the body, is not filled in by him. It is also argued by Sh. Behl that the cheque was invalid inasmuch it was valid only for 'Rs. 10,00,000/- and under' as has been endorsed on the body of the cheque. The cheque drawn for Rs. 15 lacs was beyond the amount CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 4 of 8 of its validity and therefore, the same is an invalid cheque and case would not proceed thereon.
6. Sh. Vinay Gupta, counsel for the LR's of respondent/complainant has strongly opposed the appeal. It is argued that complainant had discharged her liability of establishing the case as the signatures on the cheque in question have been admitted by the accused. The presumption of correctness of the cheque and the same having been issued in discharge of legally enforceable debt have been rightly invoked by the trial court. Appellant miserably failed to rebut the presumption and has been rightly convicted and sentenced.
7. I have heard the Ld. Counsels and with their assistance perused the trial court record as well as the impugned order.
8.1 On the first principles, the presumption under Section 118/139 N I Act, seems to have been rightly invoked by the trial court, as the signatures on the cheque have been admitted by the appellant/accused. However, a little deeper scrutiny of the documents and the evidence would rebut the superficially raised presumption in the facts of the present case. What escaped the attention of Trial court is that the amount involved is fairly large and the transaction as per the case of complainant is in cash. Appellant/accused, who is a vegetable vendor is alleged to have taken a loan of Rs. 15 lacs for starting a new business in August, 2017 repayable within three months. Admittedly, complainant has not stated or proved any specific day or date on which the amount was advanced. It has only been said that in the month of August, CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 5 of 8 2017, loan was advanced. Loan advanced for starting a new business and repayable within a period of three months itself, raises first doubt for the alleged transaction.
8.2 The next doubt that comes to the mind of this court is of transaction being in cash of an amount as large as 15 lacs by a person, who has not disclosed her sources of income or the availability of such funds in cash. During cross-examination, she deposed that she has an income of Rs. 12,000/- per month from the pension of her deceased husband. She has also stated that there are two mobile towers installed at her house and she is deriving monthly rent from the same but stated that she was not maintaining any records of the receipt of the money. She also stated that she was receiving some money from her sons and daughters-in-law. However, she was not maintaining any records. She stated that she was not filing any Income Tax returns. She did not remember the denomination of the currency notes, which constituted Rs. 15 lacs. Therefore, on the facts as noticed above, this court is of the opinion that the availability of funds as large as Rs. 15 lacs, in cash with the complainant, who was not in regular employment is a doubtful fact. Compounded with the fact that no record of availability of funds was available with her or maintained by her; she was not filing income tax returns and the fact that there was no documentary receipt executed for the loan extended, this court finds the initial transaction itself, to be doubtful.
8.3 On further cross-examination, complainant deposed that the amount was advanced in the presence of one Subhash. However, no such Subhash has been examined by the complainant CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 6 of 8 to establish the payment of money.
9.1 To further confound the complainant's case, appellant in his evidence through his son DW-1 and through himself as DW-2 has deposed about couple of property documents having been taken by the sons of complainant from the family of accused. The property bearing No. E-35, Nanhe park and a property bearing No. E-39, Nanhe Park are both claimed by the sons of complainant to have been transferred by family of accused in their respective favours. It seems to be a conventional case of money lender misusing and squeezing its economic and social power over a family lacking the same; which is evidently being victimized by the complainant's family.
9.2 Another factor, which has escaped the attention of Ld. Trial court is that the cheque in question was not valid for the amount for which it was drawn. Body of the cheque specifically mentions that the same is valid for amount '10 lacs and under', whereas the cheque had been drawn for an amount of Rs. 15 lacs. Thus, the cheque being itself invalid, no presumption as envisaged under Section 118/139 of the N I Act can be drawn in its favour. This fact can be looked at from another angle as well. If the appellant had issued the cheque for the amount it evidently seems to have been drawn for i.e Rs. 15 lacs, when legend on the cheque reflects it to be valid only upto Rs. 10 lacs; a prudent complainant would not have accepted such an invalid cheque.
10. Therefore, this court is of the opinion that appellant/accused has rebutted the presumptions and the CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 7 of 8 complainant has failed to discharge the onus of proving that the cheque had been issued in discharge of legally enforceable debt.
11. For the reasons stated above, this court is of the opinion that the judgment of conviction dated 29.01.2020 as well as order on sentence dated 06.02.2020 cannot be upheld. Same are, therefore, set aside.
12. Appeal stands allowed. Appellant is acquitted of the offence under Section 138 Negotiable Instruments Act. Bail bonds are cancelled. Surety is discharged.
13. Trial Court Record be sent back along with copy of this judgment.
14. Appeal file be consigned to record room.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL
Announced in open court
KAUSHAL Date: 2022.03.08
on 08.03.2022 16:43:58 +0530
(Narottam Kaushal)
Principal District & Sessions Judge:
South West District
Dwarka Courts/Delhi
CA No. 124/2020 Ram Kumar Vs. Prakash Kaur through LRs Page 8 of 8