Delhi District Court
Mr. Shaji Thomas vs Mr. Manoj Kumar on 4 March, 2015
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IN THE HON'BLE COURT OF SH.CHANDER MOHAN, MM-02 NI ACT (SED),
SAKET COURT, NEW DELHI.
Complaint Case No. 1527/14
UNIQUE ID CASE NO. 02406R0213352013
In the matter of:
Mr. Shaji Thomas
R/o 37, Second Floor,
Mathura Road, Hari Nagar,
Ashram, New Delhi. ...Complainant
Versus
Mr. Manoj Kumar
R/o H.No. 144/5, 3rd Floor,
Hari Nagar, Ashram,
Near Fire Station, New Delhi-14. ...Accused
Date of Institution : 14.08.2013
Date of Reserving Judgment / Order : 26.02.2015
Date of Pronouncement of Judgment/ Order : 04.03.2015
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CASE OF THE COMPLAINANT
It is case of the complainant that accused had friendly terms with him
for quite some time and accordingly he approached him for friendly loan for a
sum of Rs. 50,000/- due to some financial problems. Complainant acceded to
the request of the accused and advanced a sum of Rs. 50,000/- as friendly
loan. Accused assured the complainant that loan shall be returned at the
earliest. In the first week of June 2013, to discharge the aforesaid liability
accused issued a cheque bearing no. 914512 dated 11.06.2013 for a sum of
Rs. 50,000/- drawn on State Bank of India, Friends Colony, New Delhi. The
above cheque have been dishonoured on presentation with remarks "Payment
stopped by drawer" vide memo dated 13.06.2013 which was received by the
him on 15.06.2013. Legal notice dated 24.06.2013 which was served upon the
accused on 25.06.2013 has failed to secure the payment hence complainant
has filed the present case.
DEFENCE OF THE ACCUSED
Accused was summoned by my Ld. Predecessor vide summoning
order dated 08.11.2013 U/s 138 NI Act and he was put to notice U/s 251 Cr.P.C
to which he pleaded not guilty and claimed trial by disclosing the following
defence:
"I have never issued impugned cheque to the complainant. I do
not owe any legal debt or liability in any respect. In fact I had lost the
impugned cheque alongwith a file containing my documents on the night
of 20.03.2013 while commuting from my office to my residence near
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Ashram. I had kept this impugned after signing it and partly filling it. I
had only filled "fifty" in words on the impugned cheque and since it was
incorrectly filled, I did not continue filling it. I was supposed to destroy
the cheque but in the mean time it got lost, I also made a police complaint
regarding my loss of documents which included my Pan card and other
documents and got the payment of the impugned cheque stopped under
my instructions to my banker. I do not know complainant. I received
legal notice of complainant and replied to the same. I am innocent. My
cheque has been misused".
Besides cross examining the complainant accused also examined
DW-1 Sh. Jagdeep Rajput, Senior Assistant of SBI, Friends Colony Branch and
DW-2, HC. Ram Kumar from PS Sunlight Colony to prove his above defence.
BRIEF REASONS FOR THE JUDGMENT
Section 139 of the Negotiable Instruments Act read as under:-
Presumption in favour of the holder- It shall be presumed, unless
the contrary is proved, that the holder of a cheque received the cheque of
the nature refered to in section 138 for the discharge, in whole or in part,
of any debt or other liability.
Further, explanation to section 138 of the Act-For the purposes of
this section, "debt or other liability" means a legally enforceable debt or
other liability.
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It is well settled that the above presumption is rebuttable. This court is
of the opinion that the accused has been able to raise a probable defence and
rebut the above presumption due to cumulative effect of following reasons:-
1.The complaint is silent about the date, month or even year of the advancement of the loan.
2. It is consistent defence of the accused right from the reply to the legal notice of demand that he has not taken any loan from the complainant and the cheque in question was lost by his client regarding which intimation to his banker was given by him vide letter Ex. DW1/1. Accused called Sh. Jagdeep Rajput, Senior Assistant of SBI, Friends Colony Branch to prove the said letter. DW-1 has categorically stated in his evidence recorded by this Court on 28.11.2014 that although the original of the above letter is not traceable but there is an entry dated 21.03.2013 in the stop payment register which mentions that accused had issued stop payment instructions. He has also identified the stamp of his bank on the letter Ex. DW1/1. Further, he has also placed on record screen shot of the computer Ex. DW1/2 which recorded the stop payment instructions. Accused has also produced DW-2, HC. Ram Kumar from PS Sunlight Colony to prove his complaint Ex. DW2/1 regarding loss of the cheque in question alongwith other documents. DW-2 has categorically stated in his evidence that as per the record a complaint dated 21.03.2013 was received by the then duty officer in their police station and the same is Ex. DW2/1.
3. In the present case the cheque in question has been dishonoured as per the memo Ex. CW1/B on 13.06.2013. The accused has lodged the complaint with the police as well as issued instructions to his bankers regarding stop payment on 21.03.2013 i.e. much prior to even presentation of the above cheque, which in the opinion of this Court leads credence to his version.
-5-4. Further, it is quite strange that why complainant did not insist the accused for execution of any pronote, receipt, acknowledgment etc while disbursing the above loan.
In view of the above reasons, this Court is of the opinion that accused has raised a probable defence that he had not taken any loan from the complainant and his lost cheque has been misused by the complainant.
In view of the above reasons accused Sh. Manoj Kumar is acquitted of offence U/s 138 NI Act. Surety bounds and bail bonds, if any, stands discharged.
Documents, if any, be returned. Endorsement, if any, stands cancelled.
Pronounced in the open court (Chander Mohan)
On 04.03.2015 MM02 (NI ACT), South East, Saket
04.03.2015