Delhi District Court
Manish Kaushik vs Vikrant Bahal on 27 November, 2024
IN THE COURT OF SH. PANKAJ RAI
JUDICIAL MAGISTRATE FIRST CLASS - 01, KARKARDOOMA COURTS:
NORTH EAST DISTRICT, DELHI
CC No.1809/2018
Manish Kaushik vs Vikrant Bahal
1.Complaint Case number : 1809/2018 2 Name and address of the : Manish Kaushik complainant S/o. Sh. Mahabir Prasad Kaushik, R/o. C-9/169, Yamuna Vihar, Delhi-110053.
3. Name and address of the : Vikrant Bahal accused S/o. Sh. V.P. Bahal, R/o. 2577/A, Street No.7, Bihari Colony, Delhi-110032.
4. Offence complained of : Section 138 of the Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claim trial.
6. Final Order : Convicted
7. Date of Institution : 14.11.2018
8. Date of Reserving the : 05.10.2024 Judgment
9. Date of pronouncement : 27.11.2024 Judgment:
1. Vide this judgment I shall decide the present complaint u/s 138 of Negotiable Instrument Act, 1881 (in short NI Act) filed by complainant Manish Kaushik against accused Vikrant Bahal. The complainant's version in brief is that he and accused were friends and having good visiting terms with each other. That on 04.09.2016 the accused visited the house of complainant with Praveen Kumar and sought friendly loan of Rs.1 lakh repayable upon demand of complainant. That when the complainant demanded back the said amount, the accused delayed its repayment on one pretext or another. That on 24.08.2018 the accused again approached the complainant for further friendly loan of Rs.2 lakhs and that the accused also simultaneously issued the cheque in question i.e. cheque bearing no.125333 drawn on IDBI Bank, Acharya Niketan, Mayur Vihar-I, Delhi. That on this basis, the Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 1/7 Digitally signed PANKAJ by PANKAJ RAI Date:
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complainant agreed to advance the aforesaid sum of Rs.2 lakhs to the accused.
That, however, the said cheque in question got dishonoured with the remarks "payment stopped by drawer" vide return memo dated 29.08.2018 and 15.10.2018. That complainant sent a legal demand notice dated 18.10.2018 to the accused through speed post and which was delivered to the accused. It is alleged that despite service of legal demand notice, accused did not make payment to discharge his liability. Consequently, the present complaint has been filed by the complainant against the accused.
2. On the basis of complaint and pre-summoning evidence tendered by the complainant, cognizance of the offence under section 138 NI Act was taken by this Court and process was issued against the accused. On appearance, bail was granted to the accused. Notice u/s 251 Cr.PC was served upon him on 29.06.2019, putting the substance of the accusations leveled against him to which he pleaded not guilty and claimed trial. In his plea of defence, the accused has disputed his liability for the cheque amount. He also disputed the receipt of legal demand notice from the complainant as well as his signatures on the cheque in question. He stated that the cheque in question was given to one Praveen Kumar for the purpose of committee and that he has no relation with complainant and that he has not taken any amount from the complainant.
3. To prove his case the complainant has relied upon his evidence by way of affidavit (Ex.CW1/A) alongwith the following documents to prove the liability of the accused: -
(a) Ex.CW1/1 : Receipt executed by the accused;
(b) Ex.CW1/2 : Cheque in question;
(c) Ex.CW1/3 and Ex. CW1/4 : Cheque return memo;
(d) Ex.CW1/5 : Office copy of legal notice dated 26.10.2018;
(e) Ex.CW1/6 : Original postal receipt; and
(f) Ex.CW1/7 : Tracking report thereof.
4. Vide order dated 17.02.2023 the court has closed the CE after observing that the accused has not availed the opportunity to cross-examine the complainant Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 2/7 Digitally signed PANKAJ by PANKAJ RAI Date:
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despite grant of several opportunities in this regard. Even the application of accused praying for recalling the complainant under section 311 Cr.P.C. was dismissed by the court vide order dated 21.04.2023 after noting the conduct of the accused. Thereafter, matter was fixed for recording of statement of accused and pursuant thereto memorandum of statement of accused under section 313 read with section 281 CrPC was recorded through his counsel as the accused was outside India and the same was been filed in the court on 26.07.2023. The matter was then fixed for DE. Accused examined himself as DW-1. He was cross-examined and discharged on 26.03.2024. Vide order dated 11.09.2024 DE was closed and matter was fixed for final arguments.
5. Final arguments heard on behalf of both the parties. Record perused.
6. To make any person liable under Section 138 Negotiable Instruments Act (hereinafter to be read as 'The Act'), all the following ingredients are required to be proved by the complainant:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
7. It is the case of the accused that he has not received the legal demand notice Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 3/7 Digitally signed PANKAJ by PANKAJ RAI Date:
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Ex.CW1/5 from the complainant. A perusal of the record shows that the accused in his cross-examination has admitted that the address mentioned therein used to belong to him and that he had shifted from this address in the year 2018. The burden lies upon the accused to prove this plea.The complainant has also filed on record original postal receipt Ex.CW1/6 through which the legal demand notice was sent to the accused and its tracking report Ex.CW1/7. Therefore, the presumption arises under section 27 of the General Clauses Act and section 114 of the Evidence Act as regards due service of legal demand notice on this address to the accused. The burden is upon the accused to prove to the contrary and the same has not been discharged by the accused by rebuttal evidence.
8. In the instant matter, the accused has denied his signatures on the cheque in question at the stage of framing of notice under section 251 CrPC as well as during the statement of accused under section 313 Cr.P.C. However, mere denial of signatures by the accused does not establish his case of non-execution of the cheques in question, more so when the cheque in question has been returned as dishonoured with reason "payment stopped by drawer" and not for the reason "Drawer's signature differs" vide return memo Ex.CW1/3. The onus was upon the accused to prove that signatures on the cheque in question does not belong to him, however, he has not taken any steps in that direction. The accused has admitted in his statement under section 251 Cr.P.C. that he operates the said bank account. Hence, the denial of signature by him in the absence of any cogent material brought on record remained bald denial due to lack of cogent evidence on record. In my opinion the accused has failed to prove that the signatures on the cheque in question are not his. Thus, the presumptions by virtue of Section 118 (a) and Section 139 of the NI Act arises against the accused and the court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. The accused can displace this presumption on the scale of preponderance of probabilities by raising a probable defence and the lack of consideration or a legally enforceable debt need not be proved beyond all reasonable doubts. The accused has to make out a fairly plausible defence which is acceptable to the court. This the accused can do either by leading own evidence in his defence, or by raising doubt on the material/evidence brought on the record by the complainant. For this, Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 4/7 Digitally signed PANKAJ by PANKAJ RAI Date:
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reliance is placed upon the judgment of Apex Court in case titled Rangappa v. Sri Mohan (2010) 11 SCC 441 and Kumar Exports v. Sharma Carpets (2009) 2 SCC
513.
9. The accused has not cross-examined the complainant despite grant of several opportunities and CE was closed by the court accordingly as noted above. Accused has only led DE and appeared himself as DW-1 in the witness box. In his examination-in-chief he has raised the defence that he does not know the complainant personally and that the never took any loan from him and that he participated in a committee run by one Praveen Kumar in the year 2016 and gave him two blank signed cheques and one unsigned cheque for security purpose. He also deposed that he also took a cash loan of Rs.1 lac from said Praveen Kumar for personal use and that the same has already been returned back. He stated that he was not in Delhi on the day of handing over of cheque in question to complainant and that it was handed over to Praveen Kumar and that it was misused by the complainant in this case. He also relied upon following documents, namely, Ex.DW1/1(OSR) which is the copy of complaint made to DCP Concerned, Ex.DW1/2(OSR) which is facebook message between him and Praveen Kumar, Ex.DW1/3 (colly) copy of his uber location and Ex.DW1/4 which are his phone calls and text messages with Praveen Kumar.
10. In the cross-examination the accused has specifically admitted that he has not placed on record any proof that Praveen Kumar was running the committee as alleged by him in his examination-in-chief. He has, admittedly, not placed on record any proof that he has ever made any payment towards the said committee. There is also no legally admissible evidence placed on record by the accused to show that there exists loan transaction between him and Praveen Kumar. Ex.DW1/2(OSR), Ex.DW1/3 (colly) and Ex.DW1/4 does not further the cause of accused since these documents ipso facto does not disprove the transaction in question with the complainant. The discussion in the said whatsapp chat and facebook messages is completely vague and there is no specific reference anywhere in it with regard to the cheque in question. The relevant certificate under section 65 B Evidence Act as furnished on record by the accused also does not contain the statutory averments Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 5/7 Digitally signed PANKAJ by PANKAJ RAI Date:
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which are required as per law before the admissibility of an electronic record. Pertinently, the accused took no steps to summon Praveen Kumar or any other committee member as his defence witness who would have been the best evidence in support of defence of accused that he was a participant in the committee and that the cheque in question was issued for committee business to Praveen Kumar. Even the police complaint dated 06.11.2019 Ex.DW1/1(OSR) to DCP concerned is clearly an afterthought and is made much after the institution of the present case. It was not clear as to what was the result of the said complaint and what finding was arrived in it. It is nothing but mere self-serving ipse dixit of the accused. Ex.DW1/3 (colly) does not prove that only the accused was driving the taxi as alleged by him throughout the day and no one else could have driven it in his place as he has admitted in his cross-examination that that these documents neither shows the cab number nor it shows that he was driving the same on that day. Moreover, it does not disprove that he could not have been present in Delhi at relevant point of time. The denial by the accused with respect to his signatures on Ex.CW1/1 is also a bald denial as no steps were taken by the accused for getting the said signatures examined by handwriting expert. There is no cogent evidence on record in support of defence of accused and he has failed to discharge his burden of proof.
11. In view of the above discussion, accused has miserably failed to substantiate his plea of defence. Accused was required to prove non existence of liability/ debt by either direct evidence or by bringing on record his defence, on a scale of preponderance of probabilities, but he has failed to do so. The Court has to presume that cheque has been issued for discharging debt or liability. The said presumption which is rebuttable could be rebutted by accused by proving the contrary. The accused had to prove by cogent evidence that there was no debt or liability especially in light of his contention that he has not taken any loan from the complainant and the cheque was issued towards security for the amount to be paid towards committee. For shifting the burden upon the complainant, accused had to prove his defence by preponderance of probabilities whereas he has completely failed to do so. Comprehensive perusal of the evidence led on record shows that the accused has failed to rebut the presumption in favour of the complainant and he Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 6/7 has failed to create any doubt over the case put forth by the complainant.
12. Accordingly, this court holds the accused guilty and the accused Vikrant Bahal is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 in respect of cheque in question.
Copy of this judgment be given to the convict free of cost. Now to come up for arguments on sentence. Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2024.11.27 Announced in the Open Court 23:34:28 +0530 on 27th Day of November, 2024 (PANKAJ RAI) Judicial Magistrate First Class-01, NE/KKD/27.11.2024 Case No. 1809/18 Manish Kaushik Vs. Vikrant Bahal Page No. 7/7