Delhi District Court
Magistrate:Dwarka Courts:New Delhi vs Adarsh Kumar on 2 August, 2011
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO: 481/10
Unique Case ID No: 02405RO421692010
M/s Citi Financial Consumer Finance India Ltd.,
(formerly known as "Associates India Financial Services Ltd.")
having its registered office at
3 L.S.C. Pushp Vihar, New Delhi110062.
...............Complainant
Versus
Adarsh Kumar
S/o Late Shri Bhudev Singh,
R/o V290, Arvind Nagar,
East Ghonda,
Delhi110053.
................Accused
Offence Complained of or proved : Under section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 16.02.2010
Date of Institution : 22.02.2010
Date of reserving judgment/order : 19.07.2010
Final Order/Judgment : Acquitted.
Date of pronouncement : 02.08.2011
CC No:481/10 dated 02.08.2011
M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 1 of 27
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act filed by the complainant against the accused.
2. The case of the complainant as per complaint EX.CW1/6 is that the accused has taken a personal loan from the complainant vide agreement no. 13588601 and in partial discharge of aforesaid liability, issued the cheque bearing no. 366717 in sum of Rs. 1,50,000/ dated 23.12.2009, which on presentation for payment was returned unpaid by the payee bank vide return memo dated 28.12.2009 for the reasons "Funds Insufficient" and despite service of the legal demand notice dated 15.01.2010, by speed post dated 16.01.2010 upon the accused, the accused has failed to make the payment towards cheque in question within the statutory period of 15 days and accordingly, the present complaint is filed by the complainant through Mr. Sanjeev Sharma, who has been authorised by the complainant vide Power of Attorney dated 04.08.2009, which is EX.CW1/1.
3. The accused was summoned vide order dated 22.02.2010, CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 2 of 27 whereupon the accused entered his appearance on 20.04.2010. Thereafter, on 28.05.2010, separate notice u/s 251 Cr.P.C. explaining accusation against the accused u/s 138 of the NI Act was issued to the accused, to which he did not plead guilty and claimed trial.
4. The complainant has tendered the evidence by way of affidavit which is EX.CW1/X of Shri Sanjeev Sharma, AR of the complainant, in support of submissions made in the complaint and relied upon the following documents: EX.CW1/1 : Special Power of Attorney in favour of AR of the complainant.
EX.CW1/2 : original cheque bearing no. 366717 dated 23.12.2009 for Rs. 1,50,000/.
EX.CW1/3 : cheque return memo dated 28.12.2009. EX.CW1/4 : legal notice dated 15.01.2010.
EX.CW1/5 : Speed Post receipt dated 16.01.2010. EX.CW1/6 : Complaint u/s 138 of the NI Act.
Statement of accused u/s 313 Cr.P.C. was recorded on 04.08.2010 and the matter was fixed for defence evidence.
5. The accused has examined himself as DW1 with the permission of this Court u/s 315 of the Cr.P.C. and has relied on three receipts reflecting the payment of installments , which are CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 3 of 27 EX.DW1/X1 to EX.DW1/X3. Accused has further relied on the settlement letter purportedly issued by the complainant bank which is EX.DW1/A alongwith the receipt EX.DW1/B. Accused has also placed on record copy of identity card of Mr Rajbeer Kasana which is mark A, who has represented himself to be the officer of the complainant bank.
6. Final arguments in the case were heard on 19.07.2011. Written submissions have been filed on behalf of the complainant by its Counsel Shri Anand Singh.
It has been contended by Ld. Counsel for the complainant that complainant has proved the case against the accused u/s 138 of the NI Act beyond reasonable doubts. It is further contended by him that the complainant has proved beyond reasonable doubts that the cheque had been issued by the accused in discharge of part of legally recoverable debt, which was presented in the bank within its period of validity and was returned unpaid by the bank due to the reasons of insufficiency of funds and despite the payee making a demand within thirty days of receipt of the dishonoured cheque, the accused failed to make the payment towards the dishonoured cheque within fifteen days of receipt of legal notice and hence the accused is liable to be convicted u/s 138 of the NI Act. Ld. Counsel for the complainant has relied on CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 4 of 27 the admissions of the accused regarding availing the loan and regarding the terms of repayment of the same. Moreover Ld. Counsel for the complainant has further relied on admission of the accused of his signatures on the cheque Ex. CW1/2. According to Ld. Counsel for the complainant, once the accused has admitted of having obtained the loan facility, terms of its repayment and his signatures on the cheque, nothing further is required to be proved by the complainant and even otherwise in view of presumptions under Section 139 and 118 (a) of the NI Act, once the signatures on cheque are admitted by the accused the complainant is not even required to adduce any further evidence for proving the liability of the accused. In support of his submissions, Ld. Counsel for the complainant has relied on the following judgments: K.Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897 Ravi Chopra v. State & Another Lillykutty v. Lawrance 2003 (2) DCR 610 Madhukar V. Dessai v. Shaikh Abdul Riyaz 2007 (5) RCR (Criminal) 817 Satish J. Shah v. Pankaj Mushroomwal 1996 (3) RCR (Criminal) 720 CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 5 of 27 I.C.D.S. Ltd. V. Beena Shabeer & Anr. AIR 2002 SC 3014 C.C.Alavi Haji v. Palapett Muhammad & Anr.
On the other hand, it is submitted on behalf of the accused that the complainant has utterly failed to prove that the cheque EX.CW1/2 was issued by the accused in discharge of any legally recoverable debt or liability. It is submitted by Ld. Counsel for the accused that the complainant has not placed on record the loan agreement as well as the statement of account of the accused in order to establish the liability of the accused for the amount mentioned in cheque EX.CW1/2. It is further submitted by him that even if the accused has admitted that he had availed the loan from the complainant as alleged, still the complainant was required to prove the exact liability to the tune of cheque amount in question as on the date of presentation of the cheque. It is submitted by him that since the accused had already settled the aforesaid loan account with the complainant on 30.06.2008 by making the entire payment towards the aforesaid settlement reflected in EX.DW1/A, vide receipt EX.DW1/B, there was no liability existing as on the date mentioned in the cheque EX.CW1/2 and hence, the cheque having not been issued in discharge of any liability, the present complaint against the accused is not maintainable. It is further submitted by Ld. Counsel for the accused CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 6 of 27 that accused has placed on record the copy of settlement letter and receipt Ex. DW1/A and Ex. DW1/B alongwith copy of Identity card of the representative of the complainant bank during the cross examination of the AR of complainant, however the witness did not dispute the aforesaid documents. Moreover, according to him, mandatory legal notice in terms of proviso (b) to Section 138 has never been served on the accused and in the absence of the same the complaint is liable to be dismissed.
7. In view of the aforesaid submissions made by both the parties the following points arise for determination by this court viz.:
a) Whether the legal notice was duly served on the accused?
b) Whether the cheque in question was issued in discharge of any legally enforceable debt or liability?
I will consider both these issues one by one.
a) Whether the legal notice was duly served on the accused?
8. So far as the first issue regarding the service of legal notice is concerned, the case of the complainant is that after the cheque was returned unpaid vide cheque returning memo dated 28.12.2009, the complainant has sent a legal notice dated 15.01.2010 to the accused, office copy of which is EX.CW1/4, through its Counsel by speed post. AR of the complainant has exhibited the aforesaid postal receipt CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 7 of 27 dated 16.01.2010 as EX.CW1/5. It is further submitted by Ld. Counsel for the complainant that the accused appeared on receipt of summons from this court which were sent to the accused on the same address to which the legal notice Ex. CW1/4 was sent by the complainant. Accordingly Ld. Counsel for the complainant submits that since the legal notice was sent to the accused through prepaid speed post on the correct address, in view of Section 27 of the General Clauses Act it must be presumed that the legal notice was duly served on the accused. Ld. Counsel for the complainant has referred to the judgment of Hon'ble Supreme Court in C.C.Alavi Haji v. Palapett Muhammad & Anr.(supra). On the other hand, It is submitted by Ld. Counsel for the accused that the accused has never received the aforesaid legal notice as the same has been sent to the address which never belonged to the accused.
9. I have considered the rival submissions made on behalf of both the parties and have also perused the material available on record. It is true that once the letter has been addressed to the correct address of the addressee and the postage is prepaid there arises a presumption in favour of service of the letter on the addressee under Section 27 of General Clauses Act and under Section 114 of the Evidence Act. But this presumption is a rebuttable presumption. It is settled law that a presumption can be rebutted either by leading positive evidence or by CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 8 of 27 cross examination of complainant's witness or else on the basis of admitted documents which form part of the record. In the present case, web Track report of the aforesaid speed post article bearing reference number ED143821726IN vide which the legal notice Ex. CW1/4 is alleged have been mailed to the accused, has been placed on record by the complainant himself. A perusal of the aforesaid web track report shows that the speed post article sent through reference number ED143821726IN was undelivered at Seelampur and was delivered at Mayapuri while the address of the accused is of Ghonda. In the present case in view of the web track report regarding the delivery of legal notice which is placed on record by the complainant himself there is no scope for raising the presumption under Section 27 of the GC Act since the presumption cannot have the effect of destroying the positive evidence rather it is the other way round. Even otherwise the basis for raising the aforesaid presumption has not been made out by the complaint since in the postal receipt Ex. CW1/5 the complete address of the accused is not mentioned. The observations made in the judgment of Hon'ble Supreme Court in C.C.Alavi Haji's case (supra), with utmost respect, cannot be said to be applicable to cases where there is positive proof of nonservice of the legal notice. In fact in a recent judgment dated 13.04.2009 in M.D.Thomas v. P.S.Jaleel and Ors. CRIMINAL APPEAL NO.711 OF 2009, which has been CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 9 of 27 delivered after the judgment in C.C.Alavi Haji's case, Hon'ble Supreme Court has observed as follows:
"Section 138 deals with the dishonour of cheque for insufficiency, etc., of funds in the accounts of the person who draws the cheque and lays down that such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Proviso to Section 138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainantrespondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant's case. Therefore, the conviction of the appellant cannot be sustained."
Thus in view of the aforesaid facts and circumstances of the case it cannot be held that the legal notice was duly served on the accused and hence the question (a) is answered in the negative. CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 10 of 27
10. Now, before adverting to the second point for determination it would be pertinent to reproduce the relevant provisions of Section 138, 139 and section 118(a) of the Negotiable Instruments Act for ready reference, which reads as follows:
138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
and CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 11 of 27
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation : For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability."
139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
118. Presumption as to negotiable instrumentsUntil the contrary is proved,the following presumptions shall be made:
(a) of considerationthat every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
11. Issue regarding the scope of presumptions u/s 118(a) and u/s 139 of the NI Act has come up for consideration before the Hon'ble Supreme Court in a number of cases. It is no longer resintegra that in order to rebut the aforesaid presumption accused is not liable to step in to the witness box and the aforesaid presumption can be rebutted even by cross examination of the complainant's witnesses. The CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 12 of 27 Hon'ble Supreme Court in Kundan Lal Rala Ram V. Custodian Evaccue Property, reported as AIR 1961 SC 1316 has laid down the proposition of law to the effect that in case of rebuttable presumptions burden of proof may be shifted on the presumption of law or the fact and presumption of law or presumption of fact may be rebutted not only by direct or circumstantial evidence but also by presumption of law or fact.(Emphasis mine) The aforesaid observations have been quoted with approval by Hon'ble Supreme Court in its recent decision reported as M.S. Narayana Manon V. State of Kerala & Another AIR 2006 SC 3366. In the judgment of Kundan Ram Rala Ram Case (supra) the Hon'ble Supreme Court has observed as follows: "8. Now let us apply this legal position to the facts of this case. In this case the appellant gave evidence before the Deputy Custodian. His evidence discloses the following facts : the appellant was doing business in radios and gramophones in Karachi in partnership with one Sarup Singh; he transferred his shop to his friend Iqbal Hussain with the consent of the landlord without consideration and the stockintrade for consideration to Abdul Satar CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 13 of 27 Ahmedbhoy; he did not remember the name of the landlord whose permission he took before transferring the shop to Iqbal Hussain; he sold all his goods to Abdul Satar Ahmedbhoy who was a stranger to him and took from him a sum of Rs. 9610 in cash and took from him an endorsement in his favour of the promissory note for Rs. 37,000/ executed by another who was also a stranger to him; he prepared a list of articles in the shop at the time of valuation, but the list was not produced; he admitted that he had accounts and that they might be in Delhi, but did not produce them; he stated that the whole business was managed by his partner, Sarup Singh, and though the partner is alive and in India, he did not examine him as a witness. The aforesaid evidence discloses the circumstances under which the stockintrade of the appellant was transferred to Abdul Satar Ahmedbhoy and the promissory note was endorsed in his favour. It also establishes that the appellant had documentary evidence as well as oral evidence to prove that consideration passed but he wilfully withheld them. The said circumstantial evidence and the wilful withholding of the material evidence in the case would be legal evidence on the basis of which the custodianGeneral held that the presumption raised under s. 118 of the Negotiable Instruments Act was rebutted. The CustodianGeneral stated in his order as follows :
"It cannot be denied that prima facie a negotiable instrument which had been endorsed shall be taken to have been drawn for consideration. But if there is evidence to prove that there was no consideration for the endorsement then there can be no presumption to that effect. As I have set out above the evidence and the circumstances of the case negative the fact that CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 14 of 27 the promissory note was endorsed for consideration."
9. The proposition of law enunciated by the Custodian General is correct and on the basis of the relevant legal evidence he held that the presumption was rebutted. The order of the CustodianGeneral is, therefore, correct both in law and in fact." (Emphasis mine)
12. In the present case, it is submitted by Ld. Counsel for the complainant that once the accused has admitted his signatures on Ex. CW1/2 and once he has admitted the fact regarding taking of loan from the complainant, which was repayable in 48 EMIs of RS. 4,750/ each, it must be presumed that the aforesaid cheque was issued by him in discharge of legally enforceable debt and liability and it was not for the complainant to adduce any further evidence in support of existence of any such liability on the part of the accused. It is further submitted by him that the accused has failed to rebut the aforesaid presumption arising in favour of the complainant. Ld. Counsel for the complainant further submits that it is not even the case of the accused that the cheque EX.CW1/2 was not issued by him and the only defence taken by CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 15 of 27 the accused is that prior to date mentioned in EX.CW1/2 the accused had already settled the loan account with the complainant vide alleged settlement letter EX.DW1/A and he had made the entire payment in terms of the aforesaid settlement vide alleged receipts EX.DW1/B. It is submitted by him that the accused has failed to properly prove the documents EX.DW1/A and EX.DW1/B and it was for the accused to prove the aforesaid documents in view of presumptions u/s 118 and 139 of the NI Act in favour of the complainant. According to him a perusal of the alleged settlement letter shows that the same is undated and even the actual outstanding as on the date of settlement has not been reflected in the aforesaid settlement letter. Thus, according to him, even a perusal of the aforesaid letter will show that the same is forged and fabricated. It is further submitted by him that the conduct of the accused in demanding the identity card of the alleged representative of the complainant prior to handing over of the alleged payment on 30.06.2008 to him itself shows that CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 16 of 27 accused was himself doubtful about the genuineness of EX.DW1/A and EX.DW1/B. However, despite that the accused had not bothered to verify as to whether the alleged representative of the complainant is actually sent by the complainant's bank or not particularly when the accused was aware of the situation of the complainant's office at Pushp Vihar. Moreover, according to him, conduct of the accused in not obtaining the NOC from the complainant bank despite the alleged settlement and payment itself creates serious doubts about the truthfulness of the defence raised by the accused. Thus, according to him, independent of the alleged settlement and the alleged payment as aforesaid the accused has not disputed his liability towards the loan amount taken by him and the fact regarding issuance of cheque EX.CW1/2. It is finally submitted by him that since the accused has failed to discharge the aforesaid burden for rebuttal of the presumptions arising against him, he is liable to be convicted under Section 138 of the CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 17 of 27 Negotiable Instruments Act since the complainant has proved all the ingredients of the aforesaid offence.
13. It is true that in cases under Section 138 of the NI Act, usually the burden is on the accused to rebut the presumptions under Section 139 and 118(a) of the NI Act, once the necessary facts for raising the aforesaid presumptions i.e. the facts regarding the drawing of the cheque by the accused have been established by the complainant, but it is also well settled that the burden on the accused is not of the same degree as is imposed on the prosecution in criminal matters but the accused has to rebut the presumptions by proving his defence by preponderance of probabilities. Moreover the accused even need not step into the witness box and he can rebut the presumptions by cross examination of the complainant's witnesses.
14. In the present case, since the very beginning accused has disputed his liability as on the date mentioned in the cheque or as CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 18 of 27 on the date of presentation of the cheque. On the very first day when he entered his appearance in the court the accused had taken a stand that he had already settled all the claims of the complainant arising out of the loan transaction in question and had also placed on record a copy of settlement letter with the receipt, alongwith the copy of identity card of the representative of the complainant bank who had issued the settlement letter as well as the receipt. Despite the fact that the accused had disputed his liability as on the date of the cheque from the very beginning the complainant had failed to place on record even the statement of account of the accused. In fact in the cross examination of AR of the complainant, Ld. Counsel for the accused had put a specific suggestion regarding the fact that accused had already settled the matter with the complainant on 30.06.2008 for an amount of Rs. 72,704/ which was not denied by the AR of the complainant and the AR had answered that he does not know whether the accused had settled the matter with the bank as CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 19 of 27 aforesaid. Similarly the suggestion regarding accused having made the payment in terms of settlement was also not denied by the AR who stated that he does not remember whether the payment as alleged has been made by the accused or not. Thereafter the settlement letter, receipt and the copy of Identity card of the representative of complainant were placed on record by the accused and the same were marked as Ex. DW1/A and EX. DW1/B and mark "A" respectively and were not disputed by the AR at that stage. Moreover, AR of the complainant had even failed to respond to even the basic question regarding the actual liability of the accused on the date of filing of the complaint. It is interesting to note herein that the complainant company which is engaged in the business of the advancing loans to the public at large must be maintaining the books of accounts and the liability of the accused, which has been disputed by the accused, could have been proved even by production of the statement of account by the complainant but the conduct of the CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 20 of 27 complainant in deliberately withholding the statement of account of the accused raises serious doubts and in fact, in the facts and circumstances of the case, in my considered opinion, an adverse inference can be raised against the complainant that the statement of account, if produced, could have substantiated the defence taken by the accused that the accused had already settled the loan account with the complainant on 30.06.2008 and had also made the entire payment in terms of aforesaid settlement and he had no outstanding liability as on the date of presentation of the cheque by the complainant and the complainant had misused the cheque given by the accused at the time of taking loan as a blank signed cheque. In the present case, not only the accused had raised serious doubts about the veracity of the prosecution case by way of cross examination of the complainant's witness but also went a step further and examined himself as a defence witness. In his examination in chief he had proved the settlement letter and receipt Ex. DW1/A and DW1/B respectively by producing the CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 21 of 27 same in original as the same had been issued to him by the representative of the complainant. The complainant has not given any suggestion either regarding the fact that the settlement letter Ex. DW1/A had not been issued on the letter head of the complainant or that the same does not bear the stamp of the complainant bank. Moreover, the complainant had not even disputed the receipts Ex. DW1/X2 and Ex. DW1/X3. Thus as a matter of fact, the complainant has admitted that there is a practice prevalent in the complainant bank that the collection agents of the complainant goes to the debtors and collect the payments from them against proper receipts. When the two receipts Ex. DW1/X2 and Ex. DW1/X3 have been admitted by the complainant as belonging to the complainant, mere giving of suggestion that the receipt Ex. DW1/B was forged and never issued by the complainant would not be sufficient to disprove the aforesaid documents. The complainant could have easily proved the fact that the receipt Ex. DW1/B and settlement letter Ex. CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 22 of 27 DW1/A were the forged documents and had never been issued by the complainant by producing the counterfoil of the aforesaid receipt and could also have proved that Mr. Rajveer Kasana was not the employee of the complainant by producing the employees register of the preet vihar office of the complainant but the complainant had chosen not to lead the aforesaid evidence in rebuttal of the facts proved by the accused at their risk and hence must bear the consequences of the same. Moreover, it is very strange on the part of the complainant that even after receiving the copies of aforesaid settlement letter, receipt and identity card of the representative Mr. Rajveer Kasana on the very first day when the accused appeared, no complaint was ever lodged by the complainant that the aforesaid Mr. Rajveer Kasana has wrongfully represented himself to be the employee of the complainant and conduct of the complainant in not taking any action against Mr. Rajveer Kasana raises serious doubts about the stand taken by the complainant that Mr. Rajveer Kasana was not CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 23 of 27 the employee of the complainant. The complainant has further submitted that the the fact that accused did not obtain the NOC from the complainant goes on to show that the defence raised by the accused is not reliable since according to him had there been any truth in the averment of the accused that he had settled the matter with the complainant and had made the entire payment, the accused must have had obtained the NOC. I failed to agree with the aforesaid submissions made on behalf of the complainant since merely because the accused had not bothered to obtain the NOC from the complainant cannot by itself mean that he had not made the payment to the complainant particularly when he had placed on record the settlement letter and receipt regarding the payment in terms of settlement.
15. Moreover, in view of the fact that it has never been the case of the complainant that the cheque was given in blank by the accused and particulars were filled in by the complainant and in CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 24 of 27 view of the aforesaid discussions to the effect that the accused has failed to establish the liability of the accused as on the date of presentation of the cheque beyond reasonable doubts, the observations made in judgments in Ravi Chopra (Supra), Lillykutty (Supra), Madhukar V. Desai (Supra), Satish J. Shah (Supra) and ICDS Ltd. (Supra) do not help the complainant.
16. It must also be noted that the present is not a case where the accused had stopped at giving a few suggestions to the complainant's witness but the accused had stepped into the witness box and examined himself on oath after obtaining the permission of the court. Although the accused was subjected to a lengthy cross examination by Ld. Counsel for the complainant, however, the testimony of the accused remained unshaken and even the fact that the accused did not obtain the NOC from the complainant cannot be a reason for any adverse comment on the veracity of the statement given by the accused on oath. While the CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 25 of 27 complainant witness had chosen to plead ignorance on the issue of alleged settlement and on the issue of payment made by the accused vide receipt Ex. DW1/B, accused has deposed on oath that he has settled the matter with the complainant and made the entire payment in terms of aforesaid settlement. Thus even independent of the documents Ex. DW1/A and DW1/B, there is nothing in the entire testimony of the accused to disbelieve his deposition regarding the aforesaid payment particularly when the complainant has not brought on record the statement of account of the accused.
17. In view of the aforesaid discussions, in my considered view, the complainant has failed to prove beyond reasonable doubt that the Cheque Ex. CW1/2 was issued by the accused in discharge of any legally enforceable debt or liability towards the complainant. Hence the second question is answered in the negative.
CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 26 of 27
18. Therefore in view of aforesaid discussions once it has been found that the cheque has not been issued by the accused in full or partial discharge of any legally enforceable debt or liability and that the mandatory legal notice in terms of proviso (b) of Section 138 of the Negotiable Instruments Act was never served on the accused, no offence under Section 138 of the Negotiable Instruments Act is made out against the accused. Accused is accordingly acquitted of charges under Section 138 of the Negotiable Instruments Act.
17. Ordered Accordingly.
Pronounced in the Open Court on this 2nd day of August 2011. This Judgment consists of 27 signed pages.
(ARUN KUMAR) Metropolitan Magistrate:Dwarka Courts CC No:481/10 dated 02.08.2011 M/s Citi Financial Consumer Finance India Ltd V. Adarsh Kumar 27 of 27