Delhi District Court
Page No. 1 To 9 Praveen Sharma vs . Subhash Poddar on 16 December, 2013
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK1316/07
b. Date of the commission of the offence : 08/10/2007
c. Name of the complainant Praveen Sharma
d. Name of accused person and his parentage: Subhash Poddar,
and residence S/o Late Shahsi Poddar,
R/o B53, Pandav Nagar, Delhi.
e. Offence complained of : Dishonoring of cheque
for insufficient funds.
f. Plea of the accused and his examination (if any): Not guilty
because complainant had
manipulated amount of
cheque in question.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 12.12.2013.
Page No. 1 To 9 Praveen Sharma Vs. Subhash Poddar
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i. Order pronounced on : 16.12.2013
Brief reasons for decision:
1.Briefly stated the facts of this case are that accused being good friend of complainant approached and requested complainant for friendly loan of Rs. 1.5 lacs in January 2007. Complainant had allegedly arranged only Rs. 1.25 lacs and paid the same to accused as friendly loan on 15.01.2007. It was allegedly agreed between parties that in case accused failed to return said sum within 6 months, he shall be liable to pay interest at the rate of 24 % per annum from the date of its payment. It is case of complainant that after several requests for refund said sum, accused issued cheque bearing number 904115 dt. 06.08.2007 for an amount of Rs. 1,25,000/ Ex. CW1/1 (hereinafter referred to cheque in question). It is also case of complainant that cheque in question had returned unpaid vide cheque returning memo Ex. CW1/2 dt. 29.08.2007 with remarks "Insufficient Funds. It is further case of complainant that accused did not pay cheque amount within stipulated time despite service of legal demand notice Ex. CW1/4 dt. 22.09.2007. Hence, aggrieved from the aforesaid conduct of accused, complainant filed the present complaint case u/s 138 of NI Act on 06.11.2007.
2. On the other hand, accused admitted his signature appearing on his cheque in question. However, accused pleaded that his son had written amount in digits as Rs. 25,000/ on cheque in question. Accused further pleaded that he Page No. 2 To 9 Praveen Sharma Vs. Subhash Poddar 3 had handed over cheque in question to the complainant because he had taken a loan of Rs. 15,000/ on interest @ of 10 % per month. Accused denied service of legal demand notice. However, complainant filed speed post receipt and UPC regarding sending of legal demand notice. Moreover, plea of non service of legal demand notice is not plausible legal defence for accused. Reference may be made to judgment of Supreme Court of India made in C. C. Alavi Haji Vs. P. Muhammed (2007) 6 SCC 555 and relevant para of the same is reproduced as under:
17. "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of NI Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons, therefore, complaint is liable to be rejected. Any 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 Page No. 3 To 9 Praveen Sharma Vs. Subhash Poddar 4 of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G. C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium of avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
X X
18. "In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 04.08.2001, the same was returned on 10.08.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an Page No. 4 To 9 Praveen Sharma Vs. Subhash Poddar 5 endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." . In view of aforesaid observation of Hon'ble Supreme Court of India nonservice of legal demand notice is also of no great legal importance for accused.
3. The main plea of accused which required to be determined by this court is whether complainant had altered amount in question from Rs. 25,000/ to present amount of Rs. 1,25,000/ as appearing on cheque in question. Complainant admitted in his cross examination that document Ex. CW1/D1 is photocopy of cheque in question. However, complainant denied suggestion of manipulation in cheque in question by prefixing digit "1" before 25,000/ as appearing on cheque in question. On the other hand, DW1 Dr. Jiju, P. V, Sr. Scientific Officer (Documents) FSL, GNCT of Delhi, Rohini, Delhi, testified before the court that after scientific examination of entire contents of cheque in question, he was of considered view that digit "1" had been prefixed to 25,000/ in different ink. Said government handwriting expert further testified that the date, name of payee, amount in words and digit "1" had been written in same ink unlike amount 25,000/ as appearing on cheque in question. The testimony of said handwriting expert suggests that Rs. 25,000/ had been put originally on cheque in question Page No. 5 To 9 Praveen Sharma Vs. Subhash Poddar 6 and subsequently remaining contents including digit "1" had been written seemingly by the holder of cheque in question. In these circumstances, it is up to the holder of cheque in question i.e. complainant to prove who had caused apparent alteration in the column of amount of cheque in question. Under section 103 of Indian Evidence Act 1872 burden of proof regarding said particular fact is on possessor of cheque in question i.e. complainant, who wishes the court to believe cheque in question had been duly filled by accused or his representative or subsequent endorsement of any alteration by drawer. Moreover, no illwill or motive could be attributed to said government scientist. Section 87 of NI Act renders any cheque void if instrument suffers from any material alteration without endorsement / consent of drawer. It is settled position that manipulation in amount of cheque is material alteration.
Hon'ble Supreme court of India in case Veera Exports Vs. T. Kalavathy 2001 IX AD (SC) 165=AIR 2002 SC 38=2002 (1) RCR (Crl.) 221=2002 (1) Crimes 123 = 2002 Crl.L.J. 203 held that drawer voluntarily can revalidate the cheque even if its validity period is over by simply altering the date of it. However, the alteration should be made by drawer himself or with his consent. Bank only accepts such altered cheque when such alterations are approved and verified by the drawer by putting his signature or endorsement on such alterations. Without such approval, if bank clears the cheque, then it runs the risk of its consequences that entitles the drawer to make up the loss and damages, if any. It was further held by the Supreme Court that : Page No. 6 To 9 Praveen Sharma Vs. Subhash Poddar 7 "The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complaint against such alteration, e.g. If the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also can not be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed."
4. During his cross examination complainant admitted that he did not file any documentary proof regarding transaction in question. Complainant stated that he arranged loan amount in question by taking some money from his friends and some amount was in his possession. However, Ld. Counsel for accused contended that complainant did not mention said source of arrangement of loan in question in his complaint or legal demand notice. Complainant further admitted during his cross examination that he had also given some other loan to Page No. 7 To 9 Praveen Sharma Vs. Subhash Poddar 8 some other person after taking financial help from his friends as well as from his own sources. Complainant further admitted that he did not mention loan transaction in question in his ITR. Aforesaid conduct of complainant does not confirm the prudence of a lawabiding citizen reasonable in given situation. Complainant also failed to explain as to why he advanced such huge loan in question after taken some amount from his friend without taking any security or written proof. Complainant had also not explained why he had advanced cash loan in question without any interest originally, that too after taking financial help from other friend. It is noticeable that in complaint retrospective interest had been stipulated in case of default on part of accused. Court is also aware of the provision of income tax u/s 269 SS Income Tax Act 1961 which prohibits cash loan transaction more than of Rs. 20,000/. Complainant further failed to indicate the reason or compulsion on part of accused behind taking loan in question. Moreover, u/s 138 of NI Act drawer has to issue cheque in discharge of whole or part of legally enforceable liability and same can not exceed due liability. Here, if cheque was for sum of Rs. 25,000/ originally, same can not be enforced for any other amount exceeding Rs. 25,000/.
5. Court is also mindful of settled position of law as to accused has to rebut legal presumption with standard of balance of probability and once, accused managed to probablies his / her defence, it is unalienable duty of complainant to prove his / her case beyond all reasonable doubt. Complainant can not be allowed to prove his / her case by taking benefit of any lacuna in Page No. 8 To 9 Praveen Sharma Vs. Subhash Poddar 9 defence of accused as the case of complainant has to stand on its own legs. Court is also aware of basic tenant of criminal jurisprudence regarding benefit of any reasonable doubt must be given to the accused and in case of possibility of two versions, the version favouring innocence of accused should be opted by the court.
6. In view of above discussions, the court is of considered opinion that accused has created reasonable doubt over the veracity of story of complainant and complainant failed to bring on record any credible evidence / proof to demonstrate that he has actually granted a loan of Rs. 1,25,000/. In upshot of aforesaid discussion, I have no hesitation in ordering acquittal of accused for offence u/s 138 of NI Act in this case.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 16th Day of December, 2013 MM, NI Act, (East)
KKD Courts, Delhi.
Page No. 9 To 9 Praveen Sharma Vs. Subhash Poddar