Delhi District Court
Sunni Kadian vs Ashok Kumar on 10 January, 2014
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO: 308/13
Unique Case ID No: 02405RO202512013
Sunni Kadian
S/o Late Shri Kharak Singh
R/o RZ-55, B Block,
Old Roshan Pura Extn.,
Najafgarh
New Delhi-110043 ...........Complainant
Versus
Ashok Kumar
S/o Late Shri Khajan Singh,
R/o 3/D, New Roshan Pura Extn.,
Ration Office Wali Gali,
Najafgarh.
New Delhi-110043 ...............Accused
Offence Complained of or proved : Under section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 25.06.2013
Date of Institution : 26.06.2013
Date of reserving judgment/order : 04.01.2014
Final Order/Judgment : Acquitted
Date of pronouncement : 10.01.2014
JUDGMENT:
CC NO. 308/13
Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 1 of 28 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, 1881 (hereinafter referred to as NI Act) filed by the complainant against the accused.
2. Case of the complainant as per the complaint is that the accused availed a friendly loan of Rs.24,60,000/- in cash from the complainant in two installments of Rs.5,00,000/- and Rs.19,60,000/- in the month of June 2007 and March 2008 respectively and agreed to repay the same with interest @ 24% per annum by 30.09.2009 and accused had failed to repay the same and thereafter in October 2009, at the request of the complainant, accused issued 43 cheques of total sum of Rs.37,36,050/- in favour of the complainant starting from 16.10.2009 to 16.05.2013 and after two -three days requested the complainant not to present the first cheque on its due date and thereafter requested the complainant not to present the subsequent cheques till November, 2010 on their respective due dates from time to time and on demand of the complainant of overdue amount till December 2010 accused assured to make the CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 2 of 28 payment of Rs.12,14,500/- along with interest @ 24% per annum after disposing of his property and instructed the complainant to present the remaining cheques on their respective due dates, which on presentation were dishonoured due to insufficient funds and dormant condition of bank account of accused, however, the complainant did not initiate any legal proceedings against the accused due to false promises made by the accused for making the payment of loan amount and during 24.02.2012 to 08.05.2013 accused had made a payment of Rs.28,21,000/- to the complainant in parts as interest on the loan and thereafter in May 2013 accused had requested the complainant to present the cheques bearing nos.497748, 497749, 497750 and 497751 dated 16.02.2013, 16.03.2013, 16.04.2013 and 16.05.2013 respectively of Rs.86,950/- each all drawn on Punjab and Sind Bank, Old Roshanpura, Najafgarh, New Delhi and on presentation first three cheques were dishonoured with remarks "funds insufficient" and "account is dormant" vide return memos dated 10.05.2013, 11.05.2013 and 14.05.2013 and the fourth cheque was dishonoured with similar remarks on 17.05.2013, 20.05.2013 and 21.05.2013 whereupon Legal Notice dated 05.06.2013 was served upon CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 3 of 28 the accused through Registered post and courier and accused failed to make the payment of the said cheque within stipulated time despite service of aforesaid legal notice and hence the present complaint has been filed by the complainant against the accused u/s 138 of the NI Act on 25.06.2013.
3. On receipt of the complaint, cognizance of the offence was taken on 26.06.2013 and accused was summoned vide order dated 18.07.2013 by this Court and in response to summons of the Court, the accused entered his appearance on 14.08.2013 and was admitted to bail. On the same day, notice u/s 251 Cr PC explaining accusations u/s 138 of NI Act was issued to the accused to which he did not plead guilty and claimed trial. Complainant was recalled for cross examination on an application u/s 145(2) of the NI Act moved on behalf of the accused vide order dated 14.08.2013. Thereafter the complainant was cross examined by Ld. counsel for accused on the deposition made by complainant by way of his affidavits Ex CW1/P and Ex CW1/Q wherein the complainant had relied upon the following documents:
Ex CW1/A, Ex CW1/B, Ex CW1/C and Ex CW/G: Original cheques CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 4 of 28 bearing Nos.497748, 497749, 497750 and 497751 dated 16.02.2013, 16.03.2013, 16.04.2013 and 16.05.2013 respectively of Rs.86,950/- each all drawn on Punjab and Sind Bank, Old Roshanpura, Najafgarh, New Delhi in favour of the complainant.
Ex CW1/D, Ex CW1/E, Ex CW1/F, Ex CW1/H, Ex CW1/I and Ex CW1/J: Original cheque return memos.
Ex CW1/K: Copy of legal notice dated 05.06.2013 sent to accused. Ex CW1/L: Original postal receipt regarding dispatch of legal notice. Ex CW1/M: Original Courier receipt regarding dispatch of legal notice. Ex CW1/N: Copy of delivery sheet of courier company. Ex CW1/O: Present complaint u/s 138 of the NI Act.
Ex CW1/1(colly): Copy of 39 cheques issued by accused in favour of the complainant.
4. After cross examination of CW1, on a separate statement of the complainant, CE was closed vide order dated 11.09.2013. Accused was examined u/s 313 Cr PC on 24.09.2013. It is not denied by the accused in his statement that he had availed a total loan of Rs.24.60 lakhs from the complainant, however, according to him, the aforesaid loan was taken by him in several installments first of which was of Rs.5 lakhs. Accused has disputed the terms and conditions of repayment of the CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 5 of 28 aforesaid loan, in as much as according to him, the loan was repayable by him by 2013 and not by the year 2009 and that too along with interest @ 6% per annum instead of 24% per annum alleged by the complainant. Accused has not denied his signatures on the cheques in question as well as on 39 cheques, copies of which are Ex CW1/1(colly), however, according to him, the aforesaid cheques with dates, amounts in figures and signatures were issued by him in favour of the complainant in the year 2009 as surety for repayment of the loan in question and the loan was to be repaid by him in cash. He further submits that he had already made the entire repayment of the loan in question to the complainant and the complainant has failed to return the aforesaid cheques to him despite repeated demands and despite the fact that accused had already repaid the entire amount to the complainant. Accused has denied the receipt of the legal notice and his liability to the extent of cheques in question as on the date of presentation thereof. The accused has chosen not to lead any evidence in his defence and accordingly, the matter was fixed for final arguments. Final arguments in the case were heard on several dates. CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 6 of 28
5. It is contended by Ld. Counsel for the complainant that the complainant has proved all the essential ingredients of offence under Section 138 of the NI Act against the accused, in as much as, the accused has not only admitted the loan transaction in question but he has also admitted the issuance of cheques in question. Besides, according to him, the accused has also admitted that the cheques in question were dishonoured on their respective dates of presentation. It is further submitted by him that in view of the aforesaid admitted facts, there arises a presumption within the meaning of section 139 of the NI Act that the cheques in question were issued by the accused in favour of the complainant in discharge of his legally enforceable liability towards the complainant and since, according to him, the cheques were dishonoured on their respective dates of presentation and accused has failed to make the payment against the same despite receipt of legal notice, he has committed the offence under Section 138 of the NI Act. It is further submitted by him that the onus to rebut the presumption within the meaning of section 139 of the NI Act was upon the accused and according to him, the accused has failed to lead any evidence for CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 7 of 28 rebuttable of the same and bald denials of certain facts by the accused would not be sufficient to discharge the aforesaid onus or to rebut the aforesaid presumptions arising in favour of the complainant. Ld. Counsel for the complainant has relied upon the following judgments in support of submissions made by him:
a) Rangappa Vs Srimohan decided by Hon'ble Supreme court on 07.05.2010.
b) M S S Jayaram V R Hari and another decided by Kerala High Court on 22.03.2012.
c) Dalmiya Cement(Bharat) Ltd Vs M/s Galaxy Trades and Agencies Ltd decided by Hon'ble Supreme Court on 19.01.2001.
d) Shailash Kumar Aggarwal Vs State of UP and another 2000 Cri. L J 2921 (All).
e) Dr KK Ramakrishnan Vs KK Parthasaradhy and another decided by Kerala High court on 05.03.2003.
f) C C Alavi Haji Vs Palapetty Muhammed and another decided by Hon'ble Supreme court on 18.05.2007.
g) Satyanaryana Gowda Vs B Rangappa ILR 1996 KAR 1219
h) Sha Jetmal Vs The General Manager, Southern AIR 1995 Kant 219.
I) Attar Singh Wadhwa Vs NCT of Delhi & Another decided by CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 8 of 28 Hon'ble Delhi High on 17.09.2003.
j) Smt Kiran Vs Smt Sushila decided by Hon'ble Bombay High court on 24.02.2010.
k) Deelip Apte Vs Nilesh P Salgaonkar and another 2006 (6) Bom CR 653.
6. On the other hand, it is contended by Ld. Counsel for the accused that present complaint is not maintainable in view of the fact that the complainant has failed to prove the allegations leveled against accused in his complainant beyond reasonable doubts. It is submitted by him in this regard that despite a categorical stand taken by the accused that he had already discharged his entire liability under the loan transaction in question, the complainant has failed to prove the outstanding liability of accused as on the respective dates of presentation of cheques in question. He submits that an adverse inference needs to be raised against the complainant under section 114(g) of the Evidence Act on account of non production of books of accounts admittedly maintained by him. Even otherwise, according to him, the liability of the accused towards the complainant, if any, was not legally recoverable so as to attract the CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 9 of 28 provisions of Section 138 of the NI Act, since admittedly the loan transaction in question was not reflected by the complainant in his Income Tax Returns for the relevant years. It is further submitted by him that the complaint is also not maintainable in view of the fact that the complainant has failed to prove the service of mandatory legal notice within the meaning of proviso (b) to section 138 of the NI Act upon the accused. According, to him, since beginning the stand of accused is that he has not received the legal notice and despite the aforesaid stand/objection taken by the accused, the complainant has failed to recall CW-2 or any other witness from the post office for cross examination. Besides, according to him, even if it is assumed for the sake of arguments that legal notice was delivered to the accused, the same was invalid in as much as the copy proved on record does not bear the signatures of either the accused or his counsel. Ld. Counsel for the accused has relied upon the following judgments in support of submissions made by him :
a) K Prakashan Vs P K Surendran 2008 (1) DCR 151 (SC).
b) TR Palanisamy Vs Hariharan 2012 ACD 1072 (Mad) CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 10 of 28
c) R Ramaraj Vs R Kuppusamy 2012 ACD 1079 (Mad).
d) Mandvi Co-operative Bank Ltd Vs Nimesh B Thakore 2010 (1) DCR 177 (SC).
e) G. Pankajakshi Amma & Ors Vs Mathai Mathew (Dead) through LRs and another (2004) 12 SCC 83.
f) Ramakrishna Urban Co-operative Credit Society Ltd, Ahmad Nagar Vs Rajendra Bhagchand Warma 2011 ACD 97 (Bom)
g) M/s Sakthi Finance Ltd Vs K Selvaraj 2011 (2) DCR 626 (Mad).
h) Vipul Kumar Gupta Vs Vipin Gupta 2012 V AD (CRI) (DHC)
189.
I) Kulvinder Singh Vs Kafeel Ahmad 2013 II AD (Delhi) 81.
j) Shakuntala Vs State 2011 (2) JCC 1001 (Delhi)
k) Ramesh Chandra Baregama Vs Ramesh Chandra Joshi 2012 (2) DCR 427
7. I have heard the rival submissions made on behalf of both the parties and have also perused the record. In my considered opinion, following two points arise for determination by this Court viz. :
A) Whether the cheques in question were issued by the accused in favour of complainant in discharge of his legally enforceable debt or liability so as to attract the provisions of Section 138 of the Negotiable Instruments Act, 1881 (as amended upto date)?CC NO. 308/13
Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 11 of 28 B) Whether the service of a valid legal notice within the meaning of proviso (b) to Section 138 of the Negotiable Instruments Act upon the accused has been proved by the complainant?
8. I shall deal with the aforesaid questions one by one in the subsequent paras:
A) whether the cheques in question were issued by the accused in favour of complainant in discharge of his legally enforceable debt or liability so as to attract the provisions of Section 138 of the Negotiable Instruments Act, 1881 (as amended upto date)?
9. Admittedly, the accused had availed a loan of Rs 24,60,000/- from the complainant, though, there are different versions about the number of installments in which the loan was availed by the accused from the complainant and about the time when the loan was actually availed by the accused. Similarly, the cheques in question were admittedly issued by the accused somewhere during the year 2009, though there is a difference of version of the parties about the circumstances under which the cheques in question were issued by the accused in favour of the CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 12 of 28 complainant. This Court need not go into the aforesaid different versions of the parties about the date of loan transaction in question, terms and conditions of repayment of loan in question and the circumstances under which the cheques in question alongwith some other cheques were issued by the accused in favour of the complainant, at this stage and the admission on the part of accused of loan transaction in question and his issuance of cheques in question in favour of the complainant gives rise to a presumption within the meaning of Section 139 read with Section 118(a) of the NI Act that the cheques must have been issued by the accused in favour of the complainant in discharge of his liabilities towards the complainant. However, the aforesaid presumption is rebuttable in nature and for rebuttal of the same accused is not required to step into the witness box and it is open to him to rely upon the evidence adduced by the complainant in support of its case. Thus the accused can rebut the aforesaid presumption even by way of cross examination of complainant's witnesses. Besides, the accused is not required to prove his defence beyond reasonable doubts and he could have proved his defence by preponderance of probabilities. Now the real CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 13 of 28 issue is whether the accused has successfully rebutted the aforesaid presumption arising in favour of the complainant.
10. Before dealing with the aforesaid issue, I deem it proper to deal with the legal objection raised by the accused about the maintainability of the present complaint. It is submitted on behalf of the accused that even if, it be assumed for the sake of arguments that the cheques in question were issued by him in discharge of his liabilities towards the complainant, but by no stretch of imagination the same can be said to have been issued in discharge of a legally enforceable liability within the meaning of Section 138 of the NI Act, in as much as admittedly, the loan transaction in question has not been reflected by the complainant in his income tax returns for the relevant years rendering the loan transaction in question wholly illegal. Ld. Counsel for the accused has relied upon the judgment of Hon'ble Supreme Court in G. Pankajakshi Amma & Ors. Case (Supra) to argue that the loan transaction in question being unaccounted transaction is an illegal transaction and this Court should not lend its hands to assist the complainant for recovery of the same. Besides, Ld. Counsel for the accused has also relied upon the judgments CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 14 of 28 in T. R. Palaniasamy's case (Supra), R. Ramaraj's case (Supra), Vipul Kumar Gupta's case (Supra), and Kulvinder Singh's case (Supra).
11. On the other hand, it is submitted by Ld. Counsel for the complainant that non-mentioning of the loan transaction in question in his Income Tax Returns for the relevant years and grant of a huge loan amount in cash could at best invite some penalty under the provisions of Income Tax Act and that is a matter to be looked into by the Income Tax Authorities, however, according to him, the aforesaid facts would not render the liability of the accused under the loan transaction in question as legally unenforceable. It has been pointed out by Ld. Counsel for the complainant that under Section 269SS of the Income Tax Act, the grant of loan above Rs. 20,000/- has not been made an offence and it is the acceptance of loan of a sum of more than Rs. 20,000/- in cash which has been made an offence by the legislature and hence, the offence, if any, under Section 269SS of the Income tax Act has been committed by the accused and not by him and as such complainant is entitled to recover the aforesaid loan from the accused. So far as the issue of non reflection of loan transaction in question in his Income tax Returns for the relevant CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 15 of 28 years by the complainant is concerned, it is pointed out by him that the same is punishable with a maximum penalty of Rs. 5,000/- under section 271F of the Income Tax Act and that too by the Joint Commissioner of Income Tax. He further submits that in the absence of any provision under the Income Tax Act or under any other law rendering such a loan transaction void or the loan irrecoverable, the Court cannot shrug off its solemn duty to enforce such an agreement. It is further submitted by Ld. Counsel for the complainant that the reliance by Ld. Counsel for the accused on the Judgment of Hon'ble Supreme Court in G. Pankajakshi Amma & Ors. Case (Supra) is highly misplaced, in as much as in that case the Hon'ble Apex Court was dealing with the chit fund transactions which were per se illegal and the plaintiff had gone for recovery of dues under those illegal transactions under the garb of some promissory notes which were proved to have been signed in blank by the defendant at the time of entering into chit fund transactions. Besides, according to him, the reliance by Ld. Counsel for the accused on all other judgments of various High Courts including our own High Court is also misplaced in view of the fact that all those judgments were delivered by the Courts in CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 16 of 28 peculiar facts and circumstances altogether different from the facts of the case in hand. According to him, in none of the above cases the accused had admitted the loan transactions in question in those cases and in the absence of such an admission and in the absence of Income Tax returns, the Courts had come to conclusion that the accused had probabilised the defence regarding absence of consideration. Ld. Counsel for the accused has relied upon the judgments of Hon'ble Bombay High Court in Smt. Kiran's case (Supra) and Deelip Apte's case (Supra) in support of his submissions.
12. I have given a thoughtful consideration to the submissions made on behalf of both the parties and have also gone through the judgments relied upon by both the parties very carefully and I find sufficient force in the submissions made on behalf of the complainant. It is well settled legal position that unless a statute specifically provides that a contract contrary to the provisions of the statute would be void, the contract would remain binding between the parties and could be enforced between the parties themselves. I am supported in my aforesaid view by the judgments of Hon'ble Supreme Court in Nutan Kumar v. IInd ADJ CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 17 of 28 & Ors. (2002) 8 SCC 31, Nanakram Kundalrai (1986) 3 SCC 83 and by the judgment of Hon'ble Delhi High Court in Mukesh Gupta v. P.K.Bajaj (2007) 93 DRJ 333. Ld. Counsel for the accused has failed to point out any provision under the Income Tax Act, 1961 rendering the loan transaction in question as void and unenforceable though, no doubt, violation thereof may invite some penalties on both the parties. Therefore, the cheques issued by the accused in discharge of his liability under the loan transaction in question despite its being in violation of certain provisions of Income Tax Act would nonetheless remain the cheques issued in discharge of legally enforceable liability within the meaning of Section 138 of the NI Act and dishonour thereof would invite the punishment under the aforesaid provision. With utmost humility it is held that the reliance placed by Ld. Counsel for the accused on the judgment of Hon'ble Supreme Court is highly misplaced as, in my considered opinion, the observations were made by Hon'ble Supreme Court in that case in an altogether different context where the plaintiff had sought to enforce a patently illegal transaction of chit fund under the garb of provisions of NI Act pertaining to promissory notes. Similarly, CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 18 of 28 the judgments of several High Courts including our own High Court relied upon by Ld. Counsel for the accused are clearly distinguishable in as much as in none of the said cases the loan transaction was admitted by the accused and it was in the peculiar facts and circumstances of the cases that the Hon'ble High Courts drew an inference that the loan transactions in question were doubtful since the complainants in those cases have not reflected the same in their Income Tax returns. In the case in hand, the accused has admitted that he had availed the loan of Rs. 24,60,000/- from the complainant. Thus, in view of the aforesaid discussions the first legal objection raised by Ld. Counsel for the accused regarding maintainability of the present complaint is hereby rejected.
13. Now coming to the factual question as to whether the accused has successfully rebutted the presumptions arising in favour of the complainant under Sections 118(a) and Section 139 of the NI Act. It has been submitted by the accused that the loan in question was availed by him in the year 2009 in several installments at an interest rate of 6% p.a. which was repayable by him by the year 2013 and at the time of grant of CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 19 of 28 the loan in question the complainant had obtained 43 signed cheques with dates and amount in figures mentioned therein as security for repayment of the loan in question and the loan was agreed to be repaid in cash. He further submits that he had already repaid more than the loan amount in question including interest by 08.05.2013 and despite the entire repayment and repeated demands the complainant did not return the cheques in question to him and misused four of them to file the present complaint against him. It is further submitted by him that the complainant has admitted during his cross examination that he has received a payment of Rs. 42,71,000/- from the accused, whereas the total amount of all forty three cheques comes out to be Rs. 37,36,000/-. It is no doubt true that accused has not led any evidence in support of his aforesaid defences, however, as has already been observed herein above, it was not incumbent upon him to step into the witness box and he could very well have relied upon the complainant's evidence including the cross examination of complainant in order to probabilize his defence. Thus the Court need to scrutinize the testimony of CW-1 including his cross examination very carefully.
CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 20 of 28
14. The case of the complainant as per the affidavit is that the accused had availed a loan of Rs. 24,60,000/- from the complainant in two installments at an interest rate of 24% p.a. which was repayable by him by 30.09.2009 and since he failed to repay the same by the said date, he issued 43 cheques for a total sum of Rs. 37,36,050/- in favour of the complainant starting from 16.10.2009 to 16.05.2013. It is further his case that on the request of the accused, initially some of the cheques were not presented by the complainant, whereas, others were dishonoured on their respective dates of presentation. According to the complainant, the accused has started the repayment of loan in question only w.e.f. 24.02.2012 and has made a payment of Rs. 28,21,000/- towards loan in question to the complainant till 08.05.2013 and subsequently, at the request of accused, the complainant presented four cheques in question for encashment during the month of May 2013, which were returned unpaid by the banker of the accused with the remarks "funds insufficient" and "account is dormant" and since despite service of legal notice, the accused failed to make the payment of cheques in question, he has committed the offence under Section 138 of the NI Act. During CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 21 of 28 cross examination, the complainant has admitted that in addition to the aforesaid payment of Rs. 28,21,000/-, he has also received a payment of Rs. 10.5 lakhs approx. from the accused, however, according to him, the aforesaid payment was received by him towards another loan of Rs. 10.5 lakhs advanced by him to the accused. Subsequently, it is deposed by him that the another loan was of Rs. 7,42,000/- and not of Rs. 10.5 lakhs and while deposing earlier he had included the interest on the principal amount. The complainant has also admitted that a payment of Rs. 4 lakhs was received by him from the accused by way of a cheque drawn on PNB and when it was suggested to him that the aforesaid payment of Rs. 4 lakhs was made by the accused in addition to the payment of Rs. 28,21,000/- made by the accused in cash as admitted by him in his affidavit, the complainant denied the suggestion and stated that the aforesaid payment has already been included by him in the admitted receipt of Rs. 28,21,000/-. The aforesaid stand taken by the complainant castes serious doubts about the veracity of the complainant, in view of the fact that during the course of his earlier cross examination he had already deposed that the payment of Rs. 28,21,000/- was collected by CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 22 of 28 him from the residence of accused in cash.
15. Moreover, though it is true that in view of judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan(Supra), it was not incumbent upon the complainant initially to prove the liability of the accused to the extent of cheque amount in question, however, in my considered opinion, after he has admitted several payment received by him from the accused over and above the receipts admitted by him in his complaint and affidavit, the initial onus which was on the accused for rebuttal of presumption u/s 139 of the NI Act regarding existence of liability of the accused to the extent of cheques' amount in question, stood discharged by him and thereafter, it was for the complainant to prove the liability of the accused to the extent of cheques' amount in question as on the date of presentation of the cheques' in question by adducing the best evidence available with him. It was all the more necessary for the complainant to prove the exact liability of the accused as on the dates of presentation of cheques' in question in view of the fact that the cheques were admittedly issued by the accused as post dated cheques in the year 2009 and admittedly the accused had made all the payments after issuance of the CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 23 of 28 cheques in question. It has further been deposed by the complainant that he was having an acknowledgment signed by the accused to the effect that accused had availed the loan in question at an interest rate of 24% p.a. and that he was maintaining records of all the payments made by the accused towards the loan in question. Despite a categorical suggestion by Ld. Counsel for the accused that the records have not been filed by the complainant because, if produced, the same would have gone against the complainant, the complainant has failed to produce the same. In the peculiar facts and circumstances as stated herein above, in my considered opinion, an adverse inference can be raised against the complainant within the meaning of Section 114(g) of Indian Evidence Act that the records/documents, if produced, would have gone against the complainant and would have probabilized the defence sought to be raised by the accused that he had already made the repayment of entire loan amount in question to the complainant prior to presentation of cheques' in question. Once again the complainant was found contradicting himself about the presence and involvement of third party in getting the matter settled between the himself and the accused. The CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 24 of 28 complainant has also contradicted himself on the point of signing and dispatch of legal notice in as much as though as per the affidavit the notice was sent to accused by way of registered AD as well as courier and the third copy was placed on record, but during cross examination it is stated by him that only two printouts of the legal notice were taken by him simultaneously, out of which, one duly signed notice was sent to the accused and another copy which could not be signed by him has been placed on record. In view of the aforesaid discussions, in my considered opinion, it is not safe to rely upon the testimony of complainant as a proof of liability of accused as on the dates of presentation of cheques in question. More so, in view of the fact that other best evidence which was very much available with the complainant, as per his deposition, has not been produced by him for reasons best known to him for which an adverse inference can definitely be drawn against him and in favour of the accused. Thus the first question is answered in negative.
B) whether the service of a valid legal notice within the meaning of proviso (b) to Section 138 of the Negotiable Instruments Act upon the accused has been proved by the complainant?
CC NO. 308/13Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 25 of 28
16. In view of answer to the first question as well as in view of the observations of a three judge bench of Hon'ble Supreme Court in CC Alavi Haji V. Palapatty Muhammed & Another, in my considered opinion, the defence sought to be raised by the accused that the complainant is not maintainable for want of proof of service of valid legal notice is not available to the accused at this stage, in as much as the accused has failed to tender the payment towards the cheques amount in question to the complainant even within 15 days from the date of service of summons of this Court upon him. So far s the issue of validity of legal notice allegedly served upon the accused for want of signatures of either the complainant or his counsel is concerned, in my considered opinion, the issue is squarely covered by the judgments of Hon'ble Karnataka High Court in Satyanarayana Gowda's case (Supra) and Sha Jetmal's case (Supra) relied upon by Ld. Counsel for the complainant as the only requirement under Section 138 of the NI Act is to send a legal notice in writing and the requirement is not that the legal notice must also be signed by the party issuing it. Thus, the second question is answered in affirmative.
CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 26 of 28
17. In view of finding on the first question recorded herein above, the accused is acquitted of charges under Section 138 of the Negotiable Instruments Act, 1881 (as amended upto date). However, before parting with the judgment, I would like to note that the complainant has deposed on oath that the huge amounts of Rs. 7,42,000/- and Rs. 24,60,000/- were given by him to the accused as loan in cash and repayments of Rs. 10.5 lakhs approx. and Rs. 28,21,000/- have been received by him in cash, though as per the version of accused, he has made repayment of much more amount to the complainant in cash. It has also been admitted by the complainant on oath that none of the aforesaid transactions have been reflected by him in his Income Tax Returns of the relevant years and his only source of income is a fair price shop. Despite knowing fully well that the aforesaid transactions have been entered into by the complainant and the accused in violation of provisions of Income Tax Act, it has been forcefully contended by the complainant that the Court need not go into these violations and it is for the Income Tax Department to enforce the provisions of Income Tax Act and to levy penalties on them for violations, if any, of the provisions thereof. Certainly, the issue CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 27 of 28 requires a deeper scrutiny and same must be left to the competent authority under the Income Tax Act, however, I would be failing in my duty if these violations of the Income Tax Act are not brought to the notice of appropriate authority under the Income Tax Act and therefore, I hereby direct that a copy of this judgment be sent to the Chief Commissioner of the Income Tax having jurisdiction over the parties for his information and necessary action.
18. Ordered accordingly.
The accused has already furnished the bail bonds under section 437-A of Cr.P.C. and the same have been accepted on 28.11.2013. Pronounced in the Open Court on this 10th day of January, 2014. This Judgment consists of 28 signed pages.
(ARUN KUMAR) Metropolitan Magistrate:Dwarka Courts:
New Delhi CC NO. 308/13 Sunni Kadian Vs Ashok Kumar Judgment dated 10.01.2014 Page 28 of 28