Delhi District Court
Daryao Singh Khatri vs Het Ram (Retd. Lt. Colonel) on 24 June, 2013
IN THE COURT OF SH. SANJAY JINDAL
CHIEF METROPOLITAN MAGISTRATE
NORTHWEST DISTRICT : ROHINI COURTS : DELHI
Unique ID No. : 02404R1218142005
CC No. 5/1/13/05
Daryao Singh Khatri Versus Het Ram (Retd. Lt. Colonel)
P.S. : Bawana
U/s : 138 NI Act
JUDGMENT
a) Name of the complainant : Sh. Daryao Singh Khatri S/o Late Sh Chandgi Ram R/o: Vill. & PO: Katewara Delhi.
b) Name & Address of accused : Sh.Het Ram(Retd Lt. Col) S/o Sh. Subh Ram, R/o : VillageBajitpur, Delhi Also at :
A109, Sector31, NOIDA, Distt:Gautam Budh Nagar PIN Code201301, UP
c) Offence complained of or proved : 138 N.I. Act.
d) Plea of the accused : Pleaded not guilty e) Date of institution of the case : 31.03.2005 f) Date of reserving of Judgment : 10.05.2013 g) Final Judgment : Acquitted h) Date of such Judgment : 24.06.2013 CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 1/17 BRIEF REASONS FOR THE DECISION OF THE CASE : 1 This is a case/complaint U/s 138 of the Negotiable
Instruments Act filed by complainant Sh. Daryao Singh Khatri against accused Het Ram.
2 Before deciding the case, the first issue which needs to be decided is whether the trial of the present case was conducted as summary trial or summons trial. From the perusal of the record, it is evident that after framing of notice under Section 251 Cr.P.C, evidence of the complainant's witnesses was recorded and the complainant was cross examined in detail. The statement of the accused under Section 313 Cr.P.C was also recorded in detail. Thereafter, the accused was also examined and cross examined in detail as DW1. Thus, the trial of this case was, in fact, conducted as summons trial and not as a summary trial.
3 The brief facts, as per the case of the complainant, are that the complainant and the accused were known to each other since the school days and that the accused approached the complainant on or about 20th of February, 2003 for friendly loan of Rs,10,00,000/ (Ten Lakhs) for investing the same in the share market and that the CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 2/17 complainant gave a sum of Rs.9,00,000/ (Nine Lakhs) to the accused and that the accused promised to return the loan amount within a period of two years. It is further averred that the accused to show his bonafide, in the first week of February, 2005, gave cheque No.807631 dated 19.02.2005 for Rs.9,00,000/ drawn on the Punjab National Bank, Sector27, NOIDA and the accused assured the complainant that the cheque would be encashed on presentation. It is further averred that the said cheque was presented by the complainant for encashment but the same returned unpaid on account of "Funds Insufficient"; and that the factum of dishonour of the said cheque was brought to the notice of the accused by way of demand notice dated 26.02.2005. It is further alleged that in spite of the said notice, the accused has not complied with the demand as made in the said legal notice rather denied having received the said loan amount through copy of his reply dated 01.03.2005. Hence this complaint U/s 138 of the Negotiable Instruments Act (in short 'N I Act').
4 The complainant led presummoning evidence and thereafter the accused was summoned vide order dated 19.04.2005. CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 3/17 5 On appearance of the accused, notice U/s 251 Cr.P.C for the offecen U/s 138 NI Act was served upon the accused to which he pleaded not guilty on 12.12.2005.
6 During the course of complainant's evidence, the complainant has examined himself as CW1 and Sh. Om Prakash, Branch Manager, The Delhi State CoOperative Bank Ltd. as PW2. The complainant has deposed as per the contents of the complaint and tendered the documents Ex.CW1/A to Ex.CW1/J whereas PW2 has proved the statement of account of the complainant as Ex.PW2/A. 7 After conclusion of complainant's evidence, the statement of accused U/s 313 Cr.P.C was recorded and all incriminating evidence was put to him to which he explained that the cheque in question was given by him to the complainant with respect to loan which he had taken from him in September, 1998 for the amount of Rs.1.5 lakhs which he repaid and further submitted that the complainant did not advance him any loan. The accused has further admitted having received legal demand notice which was duly replied by him. It is alleged that false case has been filed against the accused. CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 4/17 8 In his defence, the accused himself appeared in the witness box as DW1.
9 I have heard the counsel for the complainant and the accused in person. Written arguments have also been filed by both the parties. 10 During the course of arguments, it is argued on behalf of the complainant that the complainant has duly proved on record all the relevant facts and documents and the accused has failed to put forward any defence. The Ld. counsel for the complainant has relied upon the following Judgments :
i General Auto Sales Vs. Vijayalaxmi, 2005 (1) Civil Court Cases 654 (Kerala), ii Lillykutty Vs. Lawrance, 2003(2) DCR 610, iii Malhotra Handlooms & Ors. Vs. Hari Om Yarns (P) Ltd., 2003(2) DCR 616;
iv Religare Finvest Limited (M/S) Vs. Sambath Kumar A & Ors., 2010 VI AD (Delhi) 229, v K.O. Issac & Anr. Vs. State & Anr., 2010 DLT (Crl.) 246; vi GE Capital Transportation Financial Services Ltd. Vs. Rahisuddin Khan, 182 (2011) DLT 385.
On the other hand, the accused has inter alia argued that there was no liability against which the cheque could have been issued CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 5/17 by him. The accused has challenged the case of the complainant on different grounds which are incorporated in the written arguments.
The accused has relied upon the following Judgments :
i Anil Vs. Purushottam, Criminal Application No. 630 of 2009 in Criminal Appeal(Stamp) No.139 of 2009, ii M/s Harman Electronics (P) Ltd. Vs. M/s National Panasonic India Ltd., AIR 2009 SC 1171, iii Judgment passed by the Ld. District Judge, NorthWest, Rohini, Delhi in the case titled as Sanjay Kumar Vs. Jayant Bhatia, Civil Suit No.36/2012.
iv G. Veersham Vs. s. Shiva Shankar & Anr., 2008 II AD (Cr.) (AND) 320, v HDFC Bank Ltd. Vs. Amit Kumar Singh, II (2009) DLT (Crl.) 1009 (DB);
vi Surjeet Singh Vs. GE Capital Transport Financial Services & Anr., 182 (2011) DLT 385.
11 I have carefully perused the material available on record in light of the submissions made before me.
12 In order to attract the liability of the accused U/s 138 of the NI Act, the complainant is required to prove :
a) that the accused issued the cheque No.807631 dated 19.02.2005 for Rs.9,00,000/ to the complainant for the discharge of legal debt/ liability;
CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 6/17
b) that the complainant presented the said cheque to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier;
c) that the said cheque was dishonoured by the banker of the accused due to the reasons "Funds Insufficient";
d) that the complainant made the demand for the payment of said amount of cheque by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheque;
e) that the accused failed to make the payment of the amount of the cheque within 15 days of the valid legal notice of demand; and
f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the NI Act accrued to him.
13 In order to prove his case, the complainant Sh. Daryao Singh examined himself as CW1. He testified as per the contents of his complaint and relied upon the documents i.e., cheque Ex.CW1/A, Memo of the bank Ex.CW1/B, Cheque return memo Ex.CW1/C issued by the Punjab National Bank, demand notice dated 26.02.2005 CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 7/17 Ex.CW1/D, postal receipts/documents Ex.CW1/E to H, reply of the accused Ex.CW1/I and Postal cover Ex.CW1/J. CW1 has been cross examined in detail on behalf of the accused. The complainant also produced Sh. Om Prakash, Branch Manager of the Delhi State Co operative Bank Ltd. as PW2 who proved the statement of account as Ex.PW2/A. No other witness has been examined on behalf of the complainant.
14 So far as the witness examined on behalf of the accused is concerned, DW1 Sh. Het Ram is the accused himself. He testified that the complainant and his son Kulvinder Singh Khatri were doing illegal business of money lending for the last 15 years and that all the loans given by them were in cash meaning thereby that they were dealing in black money and violating the provisions of the Income Tax Act which provides limit of Rs.20,000/ in cash and that all the loan were given as friendly loans. DW1 further testified that all loans were given to the people who were shown as on family visiting terms and that the complainant and his son were in the habit of telling lies. He claimed that Sh. Ranbir Singh Thakran (brother of the accused) had given a cheque of Rs.2,90,000/ to the complainant which included Rs. CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 8/17 1,50,000/ as principal amount and Rs.1,40,000/ as balance interest (payable by the accused to the complainant in respect of loan of Rs. 1,50,000/ taken in the year 1998). DW1/Accused has, inter alia, narrated many facts regarding other cases falsifying the case of the complainant. DW1 has been cross examined on behalf of the complainant but nothing material could be extracted in favour of the complainant.
15 The complainant has filed the present complaint in personal capacity against the accused. It is simply the case of the complainant in the complaint that the cheque in dispute was issued by the accused in discharge of his liability and the same was subsequently dishonoured. On the other hand, the accused has claimed that the cheque in dispute was given as a security to the complainant in respect of a loan of Rs.1,50,000/ taken in the year 1999 which was duly repaid and the cheque has been misused. The complainant has relied heavily upon the presumption U/s 139 of the NI Act which operates in favour of the holder of the cheque. The said presumption is however rebuttable and the accused has to show only reasonable grounds for rebutting the said presumption as per the settled law. The complaint CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 9/17 has been filed in a mechanical manner and the evidence has also been led in the same fashion.
16 Although all the relevant documents have been duly proved by the complainant, the accused has challenged his case on different grounds. The first and the foremost contention raised on behalf of the accused is that this Court has no territorial jurisdiction to try the present case as all the relevant transactions/ incidents have taken place at NOIDA, UP. In this regard, on perusal of the record it reveals that the accused was summoned vide order dated 19.04.2005. After appearance of the accused notice U/s 251 Cr.P.C was served on 12.12.2005 and the matter was fixed for complainant's evidence. When the matter was at the stage of recording the statement of the accused after conclusion of CE, an application was filed by the accused challenging the territorial jurisdiction of the Court at Delhi. The said application was dismissed vide order dated 29.11.2010. The accused challenged the said order before the Ld. ASJ, Delhi and the Ld. ASJ, Delhi vide order dated 03.09.2011 dismissed the Revision Petition preferred by the accused with the observation that the substantial part of the cause of action for filing the present complaint CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 10/17 had arisen within the jurisdiction of Delhi Courts and the contention of the accused in this regard was found to untenable. The said order of the Ld. ASJ was not challenged by the accused and the same has attained finality. In view of the above facts and circumstances, the contention of the accused regarding want of territorial jurisdiction is found to be devoid of merits.
17 The next contention raised on behalf of the accused is that the complainant is indulged in money lending without having a licence, so any loan advanced by the complainant cannot be held to be a legally recoverable debt/liability. The accused has cross examined the complainant in detail in this regard. It is to be noted that during the course of cross examination, the complainant has denied that he is doing money lending work and stated that he had given friendly loan to various parties, but from the material available on record, it is amply clear that the complainant was involved in money lending business. It is not easy to digest that a person who is working as Clerk in MCD would give lacs of rupees to different persons as friendly loans without claiming any interest thereon. The contention made on behalf of the accused and the material obtained by the accused CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 11/17 through RTI negate the contention of the complainant that he is not involved in money lending business. It is also beyond common comprehension as to how the complainant is managing such a big friendly loan accounts, that too, without any security etc. Although, all the alleged friendly loans advanced by the complainant to different persons as alleged by the accused have not been proved on record but the complainant himself has admitted several such transactions running into several lacs of rupees. The accused has provided a list of about 26 cases filed either by the complainant or by his son namely Kulvinder Singh against different persons. The accused has not proved the existence of above mentioned cases by admissible evidence, however, he has given the list on the basis of information received by him through RTI. So far as admissions made on the part of the complainant are concerned, he had admitted that he had advanced a loan of Rs.3 lakhs to one Rajender Singh, a loan of Rs.4 lakhs to one Jagmohan, a loan of Rs.3 lakhs to one Neeraj Kumar, loan of Rs. 2.9 lakhs to Sh. Ranvir Singh Thakran and loan of Rs.9 lakhs to the accused herein. From the above mentioned admitted facts, it is clear that the complainant is indulged in money lending without having any licence in this regard. A loan advanced by a money lender CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 12/17 who is doing the business of money lending without licence is not a legally enforceable debt or liability and the provisions of Section 138 NI Act would not apply to such transactions. A reference is made to the Judgment of the Hon'ble High Court of Bombay (Aurangabad Bench) in 'Anil Vs. Purushottam cited as : 2010 Criminal Law Journal 1217' in Criminal Application No. 630 of 2009 in Criminal Appeal (Stamp) No. 139 of 2009 as referred by the accused. 18 As an alternative plea, the accused has challenged the competence of the complainant to pay such heavy amount to the accused in cash on the date of alleged transaction. In this regard, the complainant has made oral submissions that the substantive amount of Rs.9 lakhs was paid out of the sale proceeds of machinery which was earlier installed in the factory of the son of the complainant. Such a submission made on behalf of the complainant has not been corroborated by any material either in form of document or by way of oral testimony of any witness. The complainant has not produced any proof of the alleged payment made to the accused as neither he has produced any receipt nor any security cheque has been obtained. In absence of any proof regarding source of cash and handing over of the CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 13/17 amount to the accused, it can be said that the accused has been able to raise a reasonable doubt qua the case of the complainant. The case of the accused is that the cheque was given a security cheque qua loan of Rs.1,50,000/ taken in the year 1998 seems to be plausible and probable. In this regard it is to be noted that admittedly brother of the accused is residing in the neighbourhood of the complainant and it can be assumed that he (brother of the accused) facilitated the loan of Rs. 1,50,000/ allegedly taken by the accused from the complainant. Further the complainant has not been able to prove that he had given any loan to Shri Ranbir Singh Thakran, brother of the accused for which the cheque of Rs.2,90,000/ was given to the complainant. 19 It is the case of the complainant that the accused and the complainant are known to each other and are/were on family visiting terms since the school days. It is mere averments of the complainant as he has not corroborated the same either in the documentary form or in the form of independent witness. On the other hand, the accused has been able to negate the story of the complainant stating that the complainant has even failed to tell the basic information about the accused and his family and the contentions of the complainant in this CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 14/17 regard are absolutely wrong. The complainant has admittedly never visited the house of the accused and he is not aware about the date/time of joining and retirement of the accused. The complainant is not even aware about serious illness of the wife of the accused who was suffering from cancer. Thus the contention of the complainant that there was old relation between him and the accused since childhood stands disproved.
20 It is clear from the material available on record that the vital facts have been withheld by the complainant. It is unbelievable that a heavy amount of Rupees nine lakhs without any interest was given to a person for a long period of two years. Advancing such a heavy amount to a different person as friendly loan, that too without any security and interest, shows that either the complainant is Omnipotent or very careless towards his funds. Thus the story of the complainant is not believable to any extent. It is admitted case of the complainant that he used to pay loans to different persons in cash and also that there is no reference of such transactions in the Income Tax Returns. So, it can be said that the complainant has been playing hide and seek with the Government authorities in order to evade from CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 15/17 paying income tax and the money given by him to different persons as friendly loans is in fact unaccounted. Any amount given out of unaccounted money cannot be termed as legally recoverable debt/ liability.
21 The defence of the accused raised by way of his own testimony recorded as DW1 in this regard seems to be probable and the facts extracted by the accused from the complainant during his cross examination as discussed above and the defence evidence are sufficient to show that there are strong doubts qua truthfulness of the story of the complainant. The doubts raised by the accused are sufficient to rebut the presumption operating in favour of the complainant regarding existence of liability against issuance of cheque. It has been held by the Hon'ble Supreme Court in 'K. Prakashan vs. P.K. Surendran, (2008) I SCC 258' that the burden of proof lying on accused qua rebuttal of presumption U/s 139 and 118 NI Act is required to be discharged by preponderance of probabilities. Similarly in 'M/s Kumar Export Vs. M/s Sharma Carpets, AIR 2009 SC 1518' also, it has been observed by the Hon'ble Supreme Court that for rebutting the presumption that the cheque was for discharge of CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 16/17 debt/ liability, the proof of defence need not be beyond reasonable doubt. So far as the judgments referred on behalf of the complainant are concerned, the same are not helpful to me being distinguishable on facts.
22 In view of above discussions, I am of the view that the complainant has failed to prove on record a case for the offence punishable U/s 138 NI Act beyond reasonable doubts. Hence, in the given facts and circumstances, accused Het Ram is acquitted for the said offence U/s 138 NI Act. Accused is on bail in this case. The bail bond qua accused Het Ram shall remain in force for a period of six months in view of the provisions of Section 437A of the Code of Criminal Procedure. The file be consigned to the Record Room after due compliance.
Dictated and announced in the open Court Today on this 24th Day of June, 2013.
(SANJAY JINDAL) CMM : NORTHWEST DISTRICT ROHINI : DELHI CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 17/17 CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 18/17 CC No. 5/13/05 Daryao Singh Khatri Vs. Het Ram 19/17