Delhi District Court
Complainant vs Madhav Verma on 23 January, 2019
IN THE COURT OF MR. VINIK JAIN
METROPOLITAN MAGISTRATE (SOUTH) 03,
N I ACT, SAKET COURTS : NEW DELHI
CC No.344/2016
RAM RIKH
Son of Late Mr.Jail Lal
R/o H.No.81C, Village,
Katwaria Sarai, New Delhi.
.........Complainant
Versus
MADHAV VERMA
Son of Mr.Lokendra Singh
R/o H.No.92, Navjiwan Vihar,
Malviya Nagar, New Delhi.
............. Accused
Offence Complained of or proved : Under section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 21.12.2016
Date of Institution : 23.12.2016
Date of reserving judgment/order : 16.01.2019
Final Order/Judgment : Acquitted
Date of pronouncement : 23.01.2019
CC No. 344/2016
Ram Rikh v. Madhav Verma Page 1 to 15
Judgment:
1.Briefly stated, case of the complainant is that in the second week of May 2016 accused had taken a friendly loan of Rs.3 lakhs in cash from the complainant for a period of 2 months repayable with interest at the bank rate. That in view of his aforesaid liability, accused had issued cheque bearing number 315959 dated 05.08.2016 for a sum of Rs.1,50,000/ drawn on your bank account maintained at PNB, Geetanjali Enclave, New Delhi and cheque bearing number 713041 dated 22.08.2016 for a sum of Rs.1,50,000/ drawn on the bank account of your proprietorship firm M/s Techayuda at Axis Bank Ltd., Malviya Nagar, New Delhi drawn in favour of the complainant (hereinafter referred to as the 'cheques in question'). That thereafter, the complainant presented the said cheques for encashment and the same was returned unpaid upon presentation on account of "funds insufficient"
vide return memos dated 26.10.2016. That a legal notice dated 21.11.2016 was duly sent by the complainant to the accused in this regard, but to no avail. That accused failed to pay the cheque amount within the prescribed period. Hence, the present complaint under Section 138 of Negotiable CC No. 344/2016 Ram Rikh v. Madhav Verma Page 2 to 15 Instruments Act, 1881 (hereinafter referred to as 'N I Act').
2. Upon service of summons, accused entered an appearance on 26.09.2017 and was admitted to bail on 26.09.2017. Notice under Section 251 Cr.PC was served upon the accused on 06.01.2018, to which he pleaded not guilty and claimed trial. In his statement of defence, accused stated that cheques in question were never issued by him but the same were signed by him however, the same were given by him to the son of the complainant as security cheques after filing in the amount in figures only as he was sharing business relation with the son of the complainant namely Sudhanshu. Accused was thereafter allowed to cross examine the complainant under Section 145 (2) NI Act. After closing of complainant evidence, matter was fixed for recording statement of the accused under Section 313 Cr.PC. In the said statement recorded on 04.06.2018, accused that he had never availed any loan from the complainant as such, he did not owe any liability towards the complainant. Accused further deposed that the cheques in question were given by him to one Sudhanshu Sansanwal who is the son of the complainant and he had business dealings with the son of the complainant and CC No. 344/2016 Ram Rikh v. Madhav Verma Page 3 to 15 the cheques in question were given as security cheques with the amount in figures mentioned therein in his handwriting. Accused also deposed that the remaining particulars i.e. date, and name of payee . Matter was thereafter fixed for defence evidence. Defence evidence was closed on 06.09.2018 and the matter was fixed for final arguments.
Evidence:
3. In order to support his case, complainant examined himself as CW1 and tendered his affidavit Ex.CW1/1 into evidence wherein averments made in the complaint were reiterated.
He also relied upon various documents such as Ex.CW1/2 & Ex.CW1/3 which are cheques in question, Ex.CW/4 & Ex.CW1/5 which are return memos, Ex.CW1/6 which is the legal notice, Ex.CW1/7 to Ex.CW1/8 which are postal receipts and service report. Thereafter, complainant evidence was closed.
4. Accused, on the other hand, examined himself as DW1 who deposed that he had taken a link of payment gateway Tech CC No. 344/2016 Ram Rikh v. Madhav Verma Page 4 to 15 Cureo from his uncle and started hiring the link of gateway. Mr.Sudhanshu Sansanwal had accordingly taken his gateway link on hire and thereafter transactions between him and Sudhanshu Sansanwal started through emails. The said emails consisting of 29 pages alongwith certificate under Section 65B of Indian Evidence Act Ex.DW1/A (colly). DW1 further deposed that none of the particulars of Ex.CW1/2 & Ex.CW1/3 except the signatures and amount in number are in his handwriting. DW1 also deposed that he had given two blank signed cheques with his signatures and amount mentioned in numbers to Sudhanshu Sansanwal as security in JuneJuly 2016 at the time of commencement of their business relation. DW1 further deposed that after stoppage of access of his payment gateway by him, Sudhanshu Sansanwal had got the aforesaid cheques dishonoured. DW1 deposed that he was not knowing the father of the Sudhanshu who is the complainant in the present case.
Thereafter, defence evidence was closed by the accused.
CC No. 344/2016Ram Rikh v. Madhav Verma Page 5 to 15
The law applicable:
5. 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, laid down in several judgments of Hon'ble Supreme Court of India and of various High Court including our own High Court. In my considered opinion, it is now well settled that in case the accused admits his signatures on the cheque in question, there arises a presumption in terms of Sections 118(a) and 139 of the NI Act to the effect that the same was issued by him for valid consideration and in discharge of legally enforceable debt or liability towards the complainant. Though a Division Bench of Hon'ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 has observed that the presumption under Section 139 of the NI Act does not go to the extent of presuming the existence of a legally recoverable debt, however in a later judgment titled as Rangappa v. Sri Mohan, (2010) 11 SCC CC No. 344/2016 Ram Rikh v. Madhav Verma Page 6 to 15 441 a larger Bench of Hon'ble Supreme Court has expressed its disagreement with the aforesaid view holding that there is also an initial presumption regarding the existence of legally recoverable liability under Section 139 of the NI Act. Further, it has been held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as the accused can rebut the same by placing reliance on the material brought on record by the complainant. It is also well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. The aforesaid propositions of law have been laid down by Hon'ble Supreme Court in M/s Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (1999) 3 SCC 35, Krishna Janardhan Bhat's case (Supra) and Rangappa v. Sri Mohan's case (Supra). It is further well settled in the aforesaid judgments that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts.
CC No. 344/2016Ram Rikh v. Madhav Verma Page 7 to 15 Arguments and appreciation of evidence:
6. Counsel for the complainant has argued that all the requirements of Section 138 N I Act have been met with in the present case and hence, the accused be convicted. Counsel for the accused has, on the other hand, argued that the cheques 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.
7. The accused has relied on the following judgments i.e. Pushpa Devi v. Sushila 2018 (3) JCC (NI 177, Manjula G v. Manjula BT 2018 (2) Crimes 580 (karn.), Rosa Maria Fernandes v. Nauso N Kepkar 2010 (4) civil court cases 288 (Bombay), Santosh Manikrao Gundale v. Rameshwar Wamanrao Tak & Anr. IV (2007) BC 211, Vijay v. Laxman & Anr. 2013 (2) JCC (NI) 103, Ghanshyamdas Lalchand Chandak v. Sheikh Hamid Sheikh Gulab 2018 (2) Crimes 11 (Bom.), Vipul Kumar Gupta v. Vipin Gupta 2012 (4) JCC (NI) 248 and Devender Kumar v. Khem Chand 223 (2015) Delhi Law Times 419. I have perused all CC No. 344/2016 Ram Rikh v. Madhav Verma Page 8 to 15 the judgments thoroughly.
8. The specific submissions placed by the counsels will be dealt accordingly, during the course of the judgment; the following issues 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?
As Issue No.1:
9. The cheques in question bearing Ex.CW1/2 and CW 1/3 are admitted to be signed by the accused. The legal notice was sent within the limitation period and as per the tracking report bearing Ex.CW1/9, the same is shown to be delivered. The accused has stated whilst his examination under section 313 Cr.PC and also under section 251 that the legal notice CC No. 344/2016 Ram Rikh v. Madhav Verma Page 9 to 15 was not delivered to them. Whilst examination under s 313 Cr.PC, the same address is mentioned by the accused which is mentioned in the legal notice. Thus, in view of section 27 General Clauses Act, presumption can be taken that the legal notice was duly delivered to them.
Accordingly, the issue is decided in affirmative.
As to Issue No.2:
10.It is submitted by the counsel for the accused that the complainant does not have the sound financial capacity to tender the loan in question. On the perusal of the cross examination of the complainant Ram Rikh, appearing as CW1, it is clear that the witness has deposed that he is not engaged in any other business and his sole source of income is rent. The afore said witness has further deposed that he got issued an income certificate from SDM Mehrauli in the year 2011 as his monthly income was merely Rs 5000/ per month. The witness has also deposed that in year 2016 he was not doing anything. It would be fruitful to mention here that as per the complaint, the loan was advanced in May CC No. 344/2016 Ram Rikh v. Madhav Verma Page 10 to 15 2016. On the other hand, the counsel for the complainant has submitted that the income certificate was of 1 year. It is pertinent to mention here that even though the income certificate was of 1 year but still the accused has failed to show that his income thereafter was sufficient enough to tender the loan in question. A person who was earning Rs 5000/ per month in the year 2011 and in pursuance of which he obtained the income certificate from SDM, it would be difficult to believe that he will have the capacity to furnish the loan in question. The complainant has not properly disclosed what was the amount of rent he used to earn and from where. It is also admitted by the complainant that the loan in question was not reflected in ITR. In this regard the judgment of Hon'ble Delhi High Court in Sheela Sharma V Mahendra Pal 2016 [3] JCC [NI] 148 can be taken into consideration. Also, per complaint, the loan in question was given at some interest to the accused but the complainant has nowhere specified the rate of interest. Thus, these facts degrades the trustworthiness of the complaint.
11.The counsel of the complainant has also diverted the CC No. 344/2016 Ram Rikh v. Madhav Verma Page 11 to 15 attention of this Court to various discrepancies subsisting in the whole complaint. The complainant in the legal notice bearing Ex.CW1 /6 in para 1 has stated that the accused has approached the complainant for the loan in question through a common friend but the complainant has not divulged the name of the common friend neither in his complaint nor in his affidavit. Further, as per the case of the complainant, the reason for the advancement of the loan to the accused is due to friendship. When the complainant entered in the witness box as CW1, he was confronted with some questions like the name of the father, mother of the accused, the mobile number of the accused, whether the accused is married or not etc. But in none of the questions, the complainant gave satisfactory answers. It creates doubt as to the averments of the complainant that the accused and the complainant were friends. It is also not the case of the complainant that both the parties were having professional relations, had it been so even if the complainant was not aware of the family details of the accused or personal details of the accused, it would have been selfexplanatory. The counsel for the complainant on the other hand has said common friend not being the CC No. 344/2016 Ram Rikh v. Madhav Verma Page 12 to 15 surety to the loan need not be examined. I do not agree with this argument.
12.It is further submitted by the counsel for the complainant that the name of the payee in the two cheques in question are of different handwriting. From the perusal of the two cheques in question bearing Ex.CW1/2 and Ex.CW1/3, the name of the payee is written as 'Ram Rikh'. From the bare perusal of the two aforesaid cheques in question, the name of the payee in the two cheques are in different handwriting.
The complainant has failed to give any explanation for such discrepancy. On this point the accused has relied on the judgment of Hon'ble High Court Of Delhi Smt. Pushpa Devi v. Smt. Sushila 2018 [3]JCC [NI]177.
13. The substratum of the defence of the accused is that the cheques in question were given by the accused to the son of the complainant as the son of the complainant i.e. Sudhanshu Sansanwal took gateway link from the complainant. It is further submitted by the accused that the cheques in question were given as security cheques after signing the cheques in CC No. 344/2016 Ram Rikh v. Madhav Verma Page 13 to 15 question and after filling in the amount in words and figures. For proving the same the accused himself has stepped into witness box and has relied on certain emails exchanged between the accused and the son of the complainant. It is an admitted fact that Mr. Sudhanshu Sansanwal is the son of the complainant. The complainant has also admitted that his son knows the accused to some extent.
14.On the perusal of the emails bearing Ex.DW1/A (colly) 29 pages, it appears that the accused and the son of the complainant were having business transactions with each other. The emails bearing Ex.DW1/A (colly) are not expressly denied by the complainant. Also no evidence has been brought forward to impeach the credibility of the emails bearing Ex.DW1/A (colly). Thus, the emails bearing Ex.DW1/A (colly) clearly supports the story placed by the defence.
15.In light of the aforesaid discussion, the accused has been successful in establishing his defense on the canons of preponderance of probabilities. It is a settled law that once CC No. 344/2016 Ram Rikh v. Madhav Verma Page 14 to 15 the accused probablise his defence, the onus of proving the case on the anvil of beyond reasonable doubt, lies on the complainant, which the complainant has been unsuccessful to do.
Conclusion
16.In view of the above discussion, I am of the considered opinion that the complainant has failed to establish his case beyond reasonable doubt by proving all the ingredients under Section 138 N I Act and accused has successfully rebutted the presumptions arising against him under provisions of NI Act. Accused is hereby acquitted for the offence punishable under Section 138 N I Act. Case stands dismissed.
Announced in the Open Court on this 23rd day of January, 2019. This Judgment consists of 15 signed pages.
VINIK Digitally signed
by VINIK JAIN
JAIN Date: 2019.01.23
16:47:52 +0530
(VINIK JAIN)
Metropolitan Magistrate03 (South), NI Act Saket/New Delhi/23.01.2019 CC No. 344/2016 Ram Rikh v. Madhav Verma Page 15 to 15