Delhi District Court
Arun Sharma vs . Ranjeet on 26 July, 2018
IN THE COURT OF SHRI ARUN KUMAR GARG, METROPOLITAN MAGISTRATE(NI Act)-03 (SOUTH):SAKET COURTS:NEW DELHI CC NO: 474694/16 Arun Sharma S/o Late Sh. K. C. Sharma R/o E-5/1, Shop No.6, Malviya Nagar, New Delhi - 110017 .........Complainant Versus Ranjeet S/o Sh. Inderjeet Singh R/o Block-A-1st, H. No.39, Madangir, New Delhi - 110062 .......Accused Offence Complained of or proved : Under section 138 of Negotiable Instruments Act, 1881 Plea of the Accused : Pleaded not guilty Date of filing : 04.05.2013 Date of Institution : 08.05.2013 Date of reserving judgment/order : 13.07.2018 Final Order/Judgment : Acquitted Date of pronouncement : 26.07.2018 JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. By this Judgment, I will dispose of the present complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 1 of 28 complainant against accused on account of dishonour of cheque bearing number 523379 dated 27.02.2013 for a sum of Rs.
5,00,000/- drawn on ABN Amro Bank NV, Hauz Khas, New Delhi, in favour of complainant (hereinafter referred to as the cheque in question).
2. Brief case of the complainant as per complaint is that in pursuance to request for financial assistance of Rs.5 lacs, complainant has given a cash loan of Rs.5 lacs to accused in May 2012 and in discharge of his aforesaid liability, accused had issued a cheque bearing no.523380 dated 22.11.2012 for a sum of Rs.5 lacs drawn on ABN Amro Bank, which on presentation was dishonoured with remarks "Accounts Closed" vide return memo dated 23.11.2012 and after service of legal notice by the complainant upon the accused, accused issued the cheque in question in favour of complainant which, on presentation, was dishonoured with remarks "Account Closed" vide return memo dated 09.03.2013, whereupon legal notice dated 22.03.2013 was sent to him through speed post and courier and since, according to the complainant, the accused has failed to make the payment of cheque amount in Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 2 of 28 question to the complainant, despite service of legal notice of demand, he has committed the offence under Section 138 of the Negotiable Instruments Act, 1881.
3. Upon receipt of the complaint, cognizance of the offence was taken and the accused was summoned vide order dated 09.09.2013. Accused appeared in response to summons of the court and was admitted to bail. Thereafter, a separate notice explaining accusations to the accused under Section 138 of the Negotiable Instruments Act, 1881 was served upon him in terms of Section 251 Cr.PC on 09.12.2013. Accused did not plead guilty and claimed trial. Simultaneously the defence disclosed by the accused was recorded by the court, wherein, accused had stated that he had no liability towards the complainant and the cheque in question was given by him as a security for the loans availed by him -one of Rs. 50,0000/- and another of Rs. One lac, which have already been repaid by him to the complainant and complainant had misused the cheque. Accused was thereafter allowed to cross examine the complainant in terms of Section 145(2) of NI Act vide order dated 22.02.2014.
Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 3 of 28
4. It is significant to note that in terms of judgment of Hon'ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83 and Hon'ble Delhi High Court in Rajesh Agarwal v. State & Anr. (2010) 171 DLT 51, the pre- summoning evidence by way of affidavit Ex. CW-1/1 shall be read as post-summoning evidence of the complainant. Even otherwise, the said affidavit was adopted by the complainant in his post summoning evidence also. In the aforesaid affidavit, complainant had relied upon the following documents:
Ex.CW-1/A: Original cheque in question Ex. CW-1/B: Original Cheque return memo dated 09.03.2013 Ex.CW-1/C: Legal Notice of demand dated 22.03.2013 Ex.CW-1/D (colly): Postal and courier receipts regarding dispatch of legal notice.
Ex.CW-1/E: Internet generated tracking report regarding delivery of legal notice.
Ex.CW-1/F: The present complaint u/s 138 of NI Act
5. CW-1 was duly cross-examined by Counsel for accused and thereafter, on a separate statement of complainant, CE was closed vide order dated 24.01.2018. During his cross examination, CW-1 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 4 of 28 had tendered the copies of ITRs of the complainant and his wife as Mark CW-1/X1 (Colly).
6. Statement of accused under Section 313 Cr.P.C. was recorded on 22.02.2018, putting entire incriminating evidence against him. Since the accused had chosen to lead evidence in his defence, matter was adjourned for DE. Accused has examined himself as DW-1 wherein he has relied upon the following documents:
Ex.DW-1/A: Statement of bank account of accused with M/s Citi Bank Ex.DW-1/B: Statement of bank account of accused with M/s Citi Bank & RBS.
Ex.DW-1/C (Colly): Copy of reply dated 19.09.2014 of accused to the legal notice alongwith postal receipt and track report of delivery Ex.DW-1/D (Colly): Copy of legal notice dated 30.10.2014 and 09.12.2014 alongwith postal receipts regarding dispatch of same Ex.DW-1/E (Colly): Copy of police complaints lodged by the accused.
Ex.DW-1/F (Colly): Certified copy of plaint in suit filed by accused against complainant for permanent injunction alongwith order dated 19.12.2016.
Ex.DW-1/G (Colly): Copy of reply dated September 2015 to another legal notice of complainant alongwith postal receipts Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 5 of 28 Ex.DW-1/H: Copy of letter dated 05.07.2016 received by accused from RBS.
During cross examination of accused, counsel for complainant has confronted the accused with an undertaking Ex.DW-1/CX1(OSR).
7. Accused has also examined four more witness namely SIKamlesh Kumar from PS Sarita Vihar as DW-2, Sh.Naresh Chand PRI from Post Office IARI as DW-3, Sh.Rajesh Kumar PRI From Post Office Lajpat Nagar as DW-4 and Sh.Anupam Goel from RBS as DW-5. All the aforesaid witnesses were duly cross-examined by counsel for complainant. During their examination, they relied upon the following documents:
Ex.DW-2/A (Colly): Enquiry report on the police complaint of the accused against the complainant Ex.DW-3/A (Colly): Report of weeding out of record pertaining to diapatch of legal notice by accused to the complainant through post.
Ex.DW-4/A (Colly): Report of weeding out of record pertaining to diapatch of legal notice by accused to the complainant through post.
Ex.DW-5/A: Certied copy of request letter of accused to RBS for closure of his bank account Ex.DW-5/B: Record pertaining to cheques bearing nos.697391, Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 6 of 28 697392 and 697398 Ex.DW-5/C: Statement reflecting the status of bank acount of accused with RBS.
Thereafter, on a separate statement of accused, DE was closed vide order dated 25.05.2018 and matter was adjourned for final arguments. Final arguments on behalf of the parties were thereafter heard on 13.07.2018. Besides, brief memorandums of arguments were also filed by counsels for both the parties.
8. It is submitted by counsel for complainant that the complainant has been able to prove all the ingredients of offence under Section 138 of the NI Act against the accused beyond reasonable doubts by way of uncontroverted testimony of CW-1 in the form of affidavit Ex.CW-1/1 which is duly corroborated by documentary evidence Ex. CW-1/A to Ex. CW-1/E. He submits that accused has taken a false defence and hence, has failed to rebut the presumption arising in favour of the complainant in terms of Section 139 of NI Act. He submits that accused had taken a defence in his application u/s 145(2) of NI Act as well as during his plea u/s 251 Cr.P.C that he had taken loans of Rs.50,000/- and Rs.1,00,000/- respectively in the year 2006 and 2008 from the complainant and had issued 26 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 7 of 28 blank singed cheques which, according to him, can not be believed, in as much as, no person would give 26 cheques for the small loans of Rs.50,000/- and Rs.1,00,000/-. He submits that the accused has failed to prove the grant of alleged loans by complainant to the accused and that he had evern handed over blank signed cheques including the cheque in question as security to the complainant. He further submits that the stand taken by accused regarding the alleged payment of aforesaid loans has also been found. to be self contradictory. According to him, the stand taken by accused in the present case regarding repayment of alleged loan of Rs.50,000/- and Rs.1,00,000/- each is contradictory to the stand taken by accused in his civil suit for permanent injunction against the complainant, copy of which is Ex.DW-1/F. He submits that in civil suit the cheques through which the accused had allegedly made repayment to the complainant are different from the cheques in question and hence, the defence sought to be raised by the accused in the present case is false, in as much as, no prudent person will issue fresh cheques if he had already given cheques in advance. Falsity of defence sought to be raised by Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 8 of 28 accused, according to him, is further apparent from the fact that the record produced by DW-5 reflects that the payment of the cheques in question was stopped by accused by stating that the same had been lost by him in transit. Further, according to him, during cross examination of complainant on 26.07.2016, the counsel for accused had given suggestion that the complainant had taken an amount of CC Limit of Rs. 25 Lacs from the account of Sharma Traders and had given the same to the accused. Though, according to him, the aforesaid suggestion was denied by complainant, however, the suggestion amounts to an admission on the part of accused regarding receipt by him of loan of Rs.20 lacs from the complainant. The grant of loan of Rs.20 lacs by complainant, according to him, has further been proved by complainant by way of document Ex.DW-1/CX1. He submits that accused has failed to prove the service of alleged legal notice of demand nor has he been able to prove the police complaint allegedly filed by him in the year 2012. So far as the documents Ex.DW-1/E is concerned, according to him, the same had been filed by accused much later just to fill up the gap in his defence and to create false evidence. Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 9 of 28
9. So far as the omission of complainant to produce the record pertaining to arrangement of sum of Rs.10 lacs by complainant from his friends and committees for giving the same to the accused is concerned, according to him, the complainant had never been called upon by the accused to produce the same. He further submits that accused has failed to put his defence to the complainant during his cross examination. He has thus prayed for conviction of accused for the offence u/s 138 of NI Act.
10.On the other hand, it is submitted by counsel for accused that the complainant has failed to prove any of the ingredients of offence u/s 138 of NI Act against the accused. He submits that none of the facts alleged by the complainant in his complaint have been proved by him by leading any cogent evidence, whereas, by way of cross examination of complainant, accused has been able to rebut the presumpton, if any, arising in favour of complainant in terms of Section 118 and 139 of NI Act. He submits that though as per the averments made in the complaint, complainant had given a friendly loan of Rs.5 lacs to the accused in May 2012, however, he had failed to prove the alleged friendly relation between the Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 10 of 28 complainant and the accused. He submits that during his cross examination, complainant had categorically admitted that he was only familiar with the accused and accused was not his close friend. According to him, it is highly improbable that any person will give a huge amount of Rs.5 lacs to another without execution of any documents with the another person particularly when admittedly the later was not his close friend. Even otherwise, according to him, the complainant has miserably failed to prove his financial capacity to grant such a huge loan at the time of alleged grant of loan by him to the accused. He submits that during his cross examination, complainant has produced his ITRs alongwith ITRs of his wife and bare perusal of the same shows that in the assessment year 2013-14 i.e. financial year 2012-13, gross total income of the complainant and his wife was Rs.5,93,384/- only and admittedly there was no source of income of the complainant other than the business of beauty parlour under the name and style of M/s Perfect Angles. Against the aforesaid gross total income, according to him, complainant has admitted his monthly expenses to the tune of Rs.45,000/- towards the household expenses Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 11 of 28 including electricity, water, rent etc and further expenses of Rs.45,000/- p.m. towards business expenses. Thus, according to him, it is highly improbable that a person would give a loan of Rs.5 lacs to another when his income from all sources was not sufficient to meet his household expenses. In fact according to him, in the subsequent complaints, the complainant has alleged that he had given a loan of Rs.20 lacs to the accused in May and July 2012. Though, according to him, the complainant had tried to take a stand that he had arranged the sum of Rs.10 lacs from his friends and committees, however, he could not give the details of the alleged friends and committees from whom he had allegedly arranged the said amount. He submits that so far as the credit limit in the name of M/s Sharma Traders is concerned, complainant has categorically admitted that he had never used the said limit for grant of loan to the accused. He further submits that alleged grant of loan of Rs.20 lacs by complainant is an afterthought, in as much as, in the present complaint filed by complainant in the year 2013 and in the legal notice allegedly served by him in the year 2014 before filing of complaint case no.464192/16, the complainant had Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 12 of 28 alleged that he had granted the loan of Rs.5 lacs only to the accused. He submits that prior to 13.10.2014 i.e. prior to filing of the second complaint by the complainant, it had never been the case of complainant that he had given a loan of Rs.20 lacs to the accused in May and July 2012. So far as the receipt Ex.DW-1/CX1 is concerned, according to him, the same has been fabricated by complainant, which is apparent from the fact that the contents of the receipt are contrary to the case set up by complainant. He submits that in receipt Ex.DW-1/CX1 it has been mentioned that accused had received a sum of Rs.20 lacs on 30.05.2012 whereas as per the case set up by complainant in the present complaint, the accused had taken a loan of Rs.5 lacs only in the month of May 2012 and further loan of Rs.15 lacs was taken by him in the July 2012. According to him, it was admitted by complainant during his cross examination dated 26.07.2016 that no written document was executed regarding loan given by him to the accused. He further submits that complainant has filed 3 complaint cases arising out of dishonour of 4 cheques of Rs.5 lacs each allegedly issued by accused for repayment of loan of Rs.20 lacs. The first cheque Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 13 of 28 which is the subject matter of the present complaint dated 27.02.2013 had been allegedly drawn by accused on his bank account maintained with M/s ABN Amro bank. He submits that it is highly improbable that complainant would have accepted the cheque of ABN Amro Bank in the year 2013 despite knowing fully well that aforesaid bank had closed its operations in the month of March 2010 and had changed its name to M/s Royal Bank of Scotland vide RBI notification. He further submits that as per the averments made in para no.4 of the complaint, another cheque drawn by the accused from the same bank account was dishonoured way back on 23.11.2012 with remarks "Account Closed" and hence, there was no occasion for the complainant to accept the cheque drawn on the same bank account on 07.12.2012 i.e. cheque involved in the present complaint cas. Even the present cheque, according to him was dishonoured with same remarks on 09.03.2013 and again the complainant allegedly accepted three more cheques of Rs.5 lacs each which are dated 25.07.2014, 20.05.2015 and 20.07.2015 respectively from the same bank once again. He submits that aforesaid fact renders the case of Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 14 of 28 complainant highly improbable that the cheques in question in all the three complaints were issued by accused in discharge of his liability towards the complainant. The aforesaid facts, according to him, renders the defence sought to be raised by acucsed reasonably probable that the cheques in question were given by him to the complainant as blank signed security cheques against the loans of Rs.50,000/- and Rs.1,00,000/- respectively. According to him, the complainant has further failed to prove the alleged urgent need for which the accused had taken the alleged loan of Rs.20 lacs from the complainant in May 2012 and July 2012. He submits that accused has examined himself as DW-1 in support of his defence and has examined witnesses from Police Station, Post Office and Bank to prove his defence and their oral testimonies, duly corroborated by documents produced by them, prove that the accused had given the cheques in question as blank signed security cheques against the loans availed by the accused in the year 2006 and 2008 and that he had never availed any loan of Rs.20 lacs from the complainant in May 2012 and July 2012. He has thus prayed for acquittal of accused from the charge u/s 138 of NI Act. In Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 15 of 28 support of his aforesaid submissions, counsel for accused has relied upon the following judgments:
(i)Rangappa Vs. Sri Mohan (2010) 11 SCC 441
(ii)Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54
(iii)M/s Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (1999) 3 SCC 35
(iv)S. K. Jain Vs. Vijay Kalra 2014 (2) Criminal Court Cases 370 (Delhi)
(v) Devender Kumar Vs. Khem Chand 2015 (4) JCC (NI) 274
(vi)Ashok Baugh Vs. Kamal Baugh & Anr 2015 (4) JCC (NI) 269
11.I have heard the submissions made on behalf of the parties and have also perused the record. I have also carefully gone through the judgments relied upon by Ld. Counsel for the accused. 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 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 16 of 28 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 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 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 17 of 28 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. It is significant to note that in none of the judgments relied upon by Ld. Counsel for accused any principle contrary to the principles of law reproduced hereinabove has been laid down by Hon'ble Supreme Court and Hon'ble High Courts except to the extent that observations made by Hon'ble Supreme Court in Krishna Janardhan Bhat's case (supra) were partially overruled by a larger bench of Hon'ble Supreme Court in Rangappa's case(supra).
12.Now let us examine the facts of case in hand in the light of aforesaid legal principles. In the case in hand, accused has not disputed his signatures on the cheque in question and hence, in view of the aforesaid admission, there arises a twofold Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 18 of 28 presumption in favour of complainant not only regarding existence of the liability of the accused towards the complainant but also regarding issuance of cheque in question by him in discharge of his legally enforceable liability towards the complainant. Indisputably, the aforesaid presumption is rebuttable in nature and the same could have been rebutted by the accused by way of cross examination of complainant while relying upon the documents produced by the complainant or even by raising presumptions of fact and law on the basis of facts admitted or proved on record and the accused was not required to step into the witness box. Even the standard of proof required from the accused to prove his defence is merely preponderance of probabilities as against the standard required from the complainant to prove his case beyond reasonable doubts.
13.It is significant to note that complainant has filed 3 complaint cases against the accused arising out of 4 cheques of Rs.5 lacs each which had allegedly been issued by accused in favour of complainant in discharge of his legally enforceable liability towards the complainant. This is the first complaint filed by Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 19 of 28 complainant against the accused on 04.05.2013, second complaint has been filed on 13.10.2014 and third complaint was filed by the complainant against the accused on 29.09.2015. Trial in all the three complaints against the accused has proceeded simultaneously and complainant as well as accused have lead the evidence in all the three complaints cases on similar lines. It is significant to note that in the present complaint, the complainant has alleged that in May 2012, accused had approached him for seeking financial assistance for a sum of Rs.5 lacs and upon consideration of his request, complainant granted the loan of Rs.5 lacs only in cash to the accused in May 2012. As has already been observed hereinabove, in the subsequent complaints filed by the complainant in the year 2014 and 2015, complainant has tried to take a contradictory stand that in May 2012, accused had approached the complainant for a loan of Rs.20 lacs and the complainant granted the aforesaid loan in installments of Rs.5 lacs and Rs.15 lacs respectively in May 2012 and July 2012. No plausible explanation has been given by complainant regarding aforesaid contradiction which casts serious doubt about the veracity of the case set up by Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 20 of 28 the complainant in the present complaint case. The accused has taken a consistent defence that he had never availed any loan of Rs.5 lacs or for that matter of Rs.20 lacs from the complainant in the year 2012 and the cheques involved in all the three complaint cases were given by him to the complainant as blank signed security cheques at the time of availing loan of Rs.50,000/- in the year 2006 and another loan of Rs.1 lac in the year 2008. The accused has further taken a stand that he had handed over 10 cheques to the complainant from his bank account with Citi Bank in the year 2006 and thereafter at the time of availing second loan of Rs.1 lac in July 2010, he has handed over 8 signed cheques to the complainant from his bank account with ABN Amro Bank which were subsequently replaced by him with 8 blank security cheques of Royal Bank of Scotland, consequent upon, taking over of ABN Amro Bank by Royal Bank of Scotland. He has further taken a stand that he had no financial dealings with the complainant after 2011 and complainant has misused the blank signed cheques given by him to the complainant at the time of availing loan of Rs.1 lac in the year 2008 and blank signed cheques Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 21 of 28 given by him in lieu of 8 cheques of ABN Amro Bank.
14.In the wake of aforesaid defence taken by accused not only in his application u/s 145(2) of NI Act and his plea u/s 251 Cr.P.C. but also in his statement u/s 313 Cr.P.C. and examination in chief u/s application 315 Cr.P.C., it was incumbent upon the complainant to prove that he had actually granted the loan of Rs.20 lacs to the accused in May 2012 and July 2012 respectively or for that matter the loan of Rs.5 lacs in May 2012. In my considered opinion, complainant has utterly failed to prove the aforesaid fact.
15.The first reason for my aforesaid opinion has already been narrated hereinabove in terms of which the complainant had taken contradictory stand regarding grant of loan by him to the accused in May 2012 and thereafter in July 2012 in different complaints filed by him against the accused which are listed before this Court today.
16.The second reason for my aforesaid opinion is that complainant has failed to prove his financial capacity to grant a huge loan of Rs.20 lacs or for that matter Rs.5 lacs to the accused considering his meager income reflected in ITRs for the financial year 2012-13 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 22 of 28 filed by him during his cross examination. He has admitted during his cross examination that he was not having any source of income except the income from beauty parlor being run by him under the name and style of M/s. Perfect Angles. No books of account of the aforesaid business have been produced by complainant to prove his income as well as income of his wife from the aforesaid business. The only documents which have been produced by the complainant as a proof of his income as well as income of his wife are the ITRs filed by him and his wife for the financial year 2012-
13. As has already been observed hereinabove, the aforesaid ITRs reflect meager income which was hardly sufficient to meet the monthly expenses disclosed by complainant during his cross examination. The aforesaid ITRs coupled with admission by complainant during his cross examination regarding his monthly expenses renders it highly improbable that complainant had financial capacity to grant the alleged loan of Rs.20 lacs or for that matter of Rs.5 lacs. The complainant, during his cross examination, had tried to take a stand that sum of Rs.10 lacs was arranged by him out of his savings and committees which he used Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 23 of 28 to run and balance amount was arranged by him from his friends. However, he has failed to prove any of the aforesaid facts, in as much as, neither he has disclosed the details of alleged committees and savings from which he has arranged the sum of Rs.10 lacs nor has he disclosed the names of friends and details of the amount and date from whom he had allegedly arranged the balance amount of Rs.10 lacs. He has failed to examine either any of the committee members or any of his friend from whom he had allegedly arranged the sum of Rs.20 lacs for giving the same to the accused. During his cross examination, he has admitted that he was merely familiar with the accused and accused was not his close friend. In the aforesaid circumstances, it is difficult to believe that the complainant would have given an amount of Rs.20 lacs or Rs. 5 lacs to the accused without execution of any document and after arranging the same from the different persons.
17.Though the complainant, during his cross examination dated 26.07.2016, has admitted that no written document was executed regarding alleged loan given by him to the accused, however, during cross examination of DW-1 dated 25.05.2018, his counsel Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 24 of 28 has confronted the accused with copy of one undertaking dated 30.05.2012 Ex.DW-1/CX1 which has allegedly been executed by accused on 30.05.2012 acknowledging the receipt of Rs.20 lacs from the complainant. A bare perusal of the aforesaid undertaking shows that the acknowledgment regarding availing of loan of Rs.20 lacs of the accused from the complainant on 30.05.2012 is contrary to the case set up by complainant in the present complaint, in as much as, in the undertaking, accused had purportedly acknowledged receipt of Rs.20 lacs from the complainant on 30.05.2012 whereas, as per averments made in the complaint, he had given a sum of Rs.5 lacs only to the accused in May 2012. The aforesaid contradictions coupled with the fact that complainant has failed to tender the document Ex.DW-1/CX1 during his evidence, shows that document Ex.DW-1/CX1 was fabricated by complainant only for the purpose of present case.
18.There is another reason to disbelieve the case set up by the complainant in view of the fact that 4 cheques which are the subject matter of 3 complaint cases pending before this Court, had been allegedly drawn by accused from the same bank account Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 25 of 28 bearing no.1403814. Though the cheque involved in the present case appears to have been drawn on ABN Amro Bank, the three cheques involved in remaining 2 complaint cases have been drawn on RBS. A bare perusal of averments made in para no.4 of the complaint shows that accused had allegedly issued another cheque bearing no.523380 dated 22.11.2012 for a sum of Rs.5 lacs in favour of complainant from the same bank account, which on presentation was dishonoured with remarks "Accounts Closed"
way back on 23.11.2012, meaning thereby that the complainant had come to know about closure of the bank account by the accused on 23.11.2012 and hence, he could not have accepted the subsequent cheques which are involved in the present case and complaint case bearing nos.469186/16 and 464192/16 in the year 2012, 2015 and in the year 2014 respectively. It is further significant to note that particulars such as name, date and amount in words and figures in cheques in question are in different inks and handwritings other than the ink and handwriting of the signatures on the cheques. The complainant could not even tell as to who had filled in the details in the cheques in question. The Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 26 of 28 aforesaid facts render the defence sought to be raised by accused reasonably probable that cheques involved in all the three cases were already in possession of the complainant as blank signed security cheques which have been misused by complainant for filing of the present complaint alleging that the same have been issued by accused in discharge of his liability against the loan of Rs.20 lacs.
19.Counsel for complainant has sought to rely on the contradictions in the testimony of accused vis-a-vis the documents produced by defence witnesses during their cross examination, however, in my considered opinion, it is well settled legal position that case of complainant must stand on its own legs and complainant cannot be permitted to take the benefit of lacunaes/deficiency, if any in the defence raised by accused. In view of the reasons given in the foregoing paragraphs, in my considered opinion, accused had been able to rebut the initial presumption arising in favour of complainant in terms of Section 118 and 139 of NI Act on the touchstone of preponderance of probabilities and once the aforesaid presumptions were rebutted by the accused, it was Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 27 of 28 incumbent upon the complainant to prove all the ingredients of the offence u/s 138 NI Act beyond reasonable doubts i.e. the alleged grant of loan of Rs.20 lacs or Rs.5 lacs by him to the accused and the issuance of cheques in question by accused in discharge of his aforesaid liability. In my considered opinion, complainant has failed to prove the aforesaid facts beyond reasonable doubts and hence, the accused is entitled to be acquitted.
20.In view of the aforesaid discussions, accused is hereby acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881(as amended upto date).
21.Ordered accordingly.
22.Accused has already furnished PB and SB in sum of Rs. 25,000/- each in terms of provisions of Section 437-A of Cr.P.C. and the same have been accepted and shall remain in force for a period of six months from today.
Announced in the Open Court on this 26th day of July, 2018. This Judgment consists of 28 signed pages.
(ARUN KUMAR GARG) Metropolitan Magistrate-03 (NI Act) (South) Saket Courts, New Delhi/26.07.2018 Arun Sharma Vs. Ranjeet Judgment dated 26.07.2018 Comp. Case No.474694/16 Page 28 of 28