Delhi District Court
Sh. Sanjeev Kumar vs . on 12 September, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No. 126/SP/18
Comp. ID No. 476/16
IN THE MATTER OF: -
Sh. Sanjeev Kumar
S/o Sh. Shyam Lal
R/o G-45, First Floor,
Block-G, Dilshad Garden,
Shahdara, Delhi. ....Complainant
VS.
Sh. Kailash
S/o Hari Chand
R/o C-15, Old Seemapuri
Delhi-95. ...Accused
Date of institution : 13.09.2013
Date on which order reserved : 23.07.2018
Date of final order : 12.09.2018
COMPLAINT UNDER SECTION 138/142 OF NEGOTIABLE
INSTRUMENT ACT
JUDGMENT:
1. This is a complaint U/s 138 of Negotiable Instrument Act, filed by the complainant Sanjeev Kumar against the accused Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 1 of 12 Kailash in respect of alleged dishonour of cheque bearing no. 000027 dt. 22.07.2013 of Rs. 30,000/- drawn on Bank of India, Dilshad Garden, Delhi-95 which was allegedly issued by accused to complainant towards discharge of legal liability.
2. It is the case of complainant that accused had borrowed a friendly loan of Rs. 50,000/- for his personal use from the complainant with the assurance to return the same on or before 15.09.2013 and when the accused failed to refund the said amount within the assured period, complainant asked the accused to refund the above said amount and then to discharge his part liability against the friendly loan accused had issued a cheque bearing no. 000027 dt. 22.07.2013 of Rs. 30,000/- drawn on Bank of India, Dilshad Garden, Delhi-95 with assurance that said cheque wil be encashed on its presentation and also assured to make the remaining payment of Rs. 20,000/- very soon. Thereafter, complainant had presented the above said cheques with his banker for encashment but same was returned unpaid vide return memo dt. 24.07.2013 with remarks "Funds Insufficient". It is alleged that complainant had informed the accused about the dishonour of the cheque and requested him to pay the above said loan amount but he flatly refused to make the payment and thereafter complainant had sent a legal notice of dt. 01.08.2013 through registered AD which was duly served upon the accused but despite that accused has not discharged his liability against the cheque in question. Thereafter present complaint has been filed.
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3. After recording the pre-summoning evidence of complainant, cognizance of offence was taken against accused in respect of offence U/s 138 of NI Act and summons were issued against the accused for offence U/s 138 of NI Act.
4. After supply of complaint along with documents to the accused, notice of accusation U/s 251 Cr.P.C was framed against the accused vide order dt. 29.09.2014 to which the accused pleaded not guilty and claimed trial.
5. Thereafter matter was proceeded to stage of complainant's evidence. Complainant has examined himself as CW-1 and filed his examination-in-chief by way of affidavit Ex. CW1/A and relied upon documents i.e. Cheque bearing no. 000027 dt. 22.07.2013 as Ex. CW1/1, return memo dt. 24.07.2013 as Ex. CW1/2, legal notice as Ex. CW1/3 and registered post receipt as Ex. CW1/4. CW-1 was also cross-examined by the ld. Defence Counsel. Thereafter, vide order dt. 04.07.2016, CE was closed. Statement of accused U/s 313 Cr.P.C. was recorded. In his statement U/s 313 Cr.P.C., accused set up defence that he had issued the said cheque to the complainant on account of security as they are member of a chit fund committee and he had already made the payment to the complainant and after the payment of committee, complainant refused to return the said cheque to the him on his asking the same. Accused opted to lead DE and examined one Sh. Rajeev Jindal as Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 3 of 12 DW-1. Thereafter, vide order dt. 24.07.2017, DE was closed.
6. I have heard the final arguments on behalf of the parties and perused the record and also gone through the written submissions filed on behalf of accused.
7. Culpability for the offence of dishonor of cheque under Section 138 of the NI Act requires that the accused should have drawn the cheque on a bank account maintained by him and issued the same to the complainant in discharge of a debt or other legal liability. It further enjoins the payee to send a notice to the drawer demanding payment of the cheque amount within 30 days of the dishonor of the cheque. It is only upon non payment of the cheque amount within 15 days of the receipt of demand notice that the complainant is at liberty to file a criminal complaint against the drawer for dishonor of the cheque.
8. In the present case, all the statutory time limits stand complied with. As the accused has admitted the receipt of legal demand notice in his statement U/s 313 Cr.P.C., I shall deal with the decisive issue i.e. whether the cheque in question was issued by the accused to the complainant in discharge of any legal liability owed to him.
9. Before proceeding further, it would be germane to refer to the well settled propositions of law and jurisprudence on issue of Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 4 of 12 dishonour of cheques. The Negotiable Instrument Act, 1881 raises two rebuttable presumptions which are as follows:
1. Presumption U/s 118(a): According to Section 118(a) of Negotiable Instrument Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the instrument was made for valid consideration, until the contrary is proved.
2. Presumption U/s 139 : According to Section 139 of NI Act, it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability. Under section 139 NI Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the drawer of the cheque and once complainant has discharged this initial burden only then onus shifts to accused to discharge the burden U/s 118(a) and Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 5 of 12 139 of Negotiable Instrument Act by standard of proof of "preponderance of probability".
10. It was observed by Hon'ble Supreme Court of India in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54, that essential ingredients of section 138 of Negotiable Instruments Act, 1881 are:-
1. that there is a legally enforceable debt;
2. that cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt and;
3. that the cheque so issued had been returned due to insufficiency of funds.
11. It has been clearly held by Hon'ble Supreme Court of India in Rangappa Vs. Shri Mohan (2010) 11 SCC 441 that presumption of Section 139 of NI Act 1881 includes presumption regarding existence of legally enforceable debt or liability and presumption contemplated U/s 139 of NI Act is rebuttable presumption and it is enough for the accused to rebut the presumption by preponderance of probabilities.
12. Having dwelt upon the law, I shall now deal with the merits of the present case as regards the issue that whether the Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 6 of 12 cheques in question was issued by the accused to the complainant in discharge of any legal liability owed to him.
13. In order to analyze the testimony of the parties and the witnesses, it would be pertinent to summarize the defence taken by the accused. The accused in his statement u/s 313 Cr.P.C. has taken a defence that he had issued the said cheque to the complainant on account of security as they are member of a chit fund committee and he had already made the payment to the complainant and after the payment of committee, complainant refused to return the said cheque to the him on his asking the same.
14. On the other hand, the complainant's case is that accused had borrowed a friendly loan of Rs. 50,000/- from him and against the said loan, accused had issued/given above said cheque in question to the complainant in discharge of part of his legal liability and also assured to pay the remaining balance amount.
15. In background of aforesaid legal propositions and the factual matrix of the case, the contentions and the challenge of the accused have to be examined as to whether accused has placed enough and cogent material before this Court to rebut said statutory presumption which arose in favour of complainant. It is settled law that in trial U/s 138 of NI Act, accused can either show that consideration and debt did not exist or consideration and debt is so probable that prudent man ought to suppose that no consideration or Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 7 of 12 debt existed.
16. In his complaint, the complainant has not stated any date, year or month as to when the accused approached him or as to when he advanced the alleged friendly loan of Rs. 50,000/- to the accused but in cross-examination complainant/CW-1 deposed that he gave the loan in the year 2012 and does not remember the date and month. It is interesting to note that the complainant/CW-1 could not disclose the date, month and year in which accused gave him the cheque in question. In this regard, it is pertinent to observe that as per the complaint the loan was to be returned on or before 15.09.2013 and when the accused failed to return within the assured period, the complainant visited him and requested to refund the loan upon which the accused issued him the cheque in question to discharge the liability in part. It is to be noted that while the assured period ended on 15.09.2013, the cheque in question bears the date of 22.07.2013. There is no explanation offered from the side of complainant as to how the cheque in question bears the date about 1¾ months prior to the date fixed for return of loan. From the averments of the complaint, it is deduced that the complainant might have approached the accused seeking return of loan on or after 15.09.2013. It is not the case of the complainant that the cheque in question given by the accused to him was already dated as 22.07.2013. Thus, doubt is raised here as to how the cheque in question with date 22.07.2013 was issued by the accused to the complainant on or after 15.09.2013. Here, it is also noted that Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 8 of 12 complainant/CW-1 admitted that in the cheque in question the amount in words, name and date are in different ink compared to the ink used in writing the amount in figure and signature.
17. Further, while in the complaint, it is stated that the accused sought loan for personal use but in cross-examination,the complainant/CW-1 deposed that the loan was given for marriage of accused's daughter. CW-1 admitted that he did not mention this reason in his complaint. It is to be noted that CW-1 could not even remember the date month and year of marriage of accused's daughter. He could not even tell her name. He also deposed that he did not attend her marriage. From the complaint, it is noted that father's name of the accused is also not disclosed and simply the words "NOT KNOWN" is mentioned for the parentage of the accused in the memo of parties. In the opening para of complaint, it is stated that accused and complainant were having friendly relations with each other for last several years. CW-1 in his cross-examination even deposed that he knows the accused for 15 years. It is thus astonishing to observe that while complainant had friendly relations with the accused for several years, he does not even know the father's name of the accused and the date, month or year of marriage of accused's daughter or her name and even did not attend her marriage despite having granted loan to the accused for the said marriage. These facts also caste a doubt upon the case of the complainant.
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18. Further analyzing the testimony, it is noted that CW- 1/complainant in his cross-examination deposed that he has not shown the present loan in his ITR. Thus, the said amount of Rs. 50,000/-, allegedly advanced as loan by the complainant, is the unaccounted money of the complainant. Regarding interest, complainant/CW-1 deposed in his cross-examination that he did not charge any interest as it was interest free loan but he also deposed that he mentioned in his complaint, notice or affidavit that the loan in question was with interest. It is to be noted that in another matter between the same parties with computer ID no. 1226/16, it is stated in that complaint that the cheque no. 000028 was issued for the amount alongwith interest. It is to be noted that both the complaint cases i.e. the present case and the said case bearing Computer ID no. 1226/16 has been filed by the complainant with respect to the same loan of Rs. 50,000/-. Thus, contradictory version is seen in both the cases which again raises serious clouds upon the case of the complainant.
19. Accused in his statement U/s 313 Cr.P.C. raised his defence that the cheque was given as security being member of Chit Fund Committee organised by complainant and despite payment being already made the complainant did not return the cheque to the accused. Accused also examined one witness in his defence who deposed in his favour. CW-1, in cross-examination, denied to the suggestions as to the defence put to him.
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20. It was held by Hon'ble Supreme Court of India in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54 that it is not necessary for accused to get into the witness box or examine any witness or produce any document, if the accused is able to show that materials available in evidence on the side of complainant and answer elicited from the complainant/complainant witnesses would improbablize the case of complainant, then such degree of proof shall be enough to rebut the presumption and shall shift the burden of proving guilt of accused on complainant and had further opined that standard of proof required from the accused is that of preponderance of probability whereas the standard of proof required in criminal case on the part of prosecution is proof beyond reasonable doubts. Inference of preponderance of probabilities can be drawn from the material on record by the parties but also by reference to the circumstances upon which parties rely. The proof required to be led by accused to rebut the presumption U/s 139 of NI Act can be made not only by leading positive evidence on the side of accused but also eliciting admission from complainant witness by pointing out improbabilities in the complaint case.
21. From foregoing discussion and observations, accused has been able to bring out improbabilities and loopholes in testimony of complainant in his cross-examination thus rendering complainant's case doubtful and has been thus able to rebut the complainant's case by standard of preponderance of probabilities, by bringing out contradictions in his case.
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22. Therefore, in view of the mandate of the above noted authority and in light of the analysis made, it is concluded that the accused has been able to discharge the burden of proof by rebutting the statutory presumption attached with the dishonoured cheque in question and in reply of which the complainant has brought nothing on record to establish his case. Consequently, the present complaint is dismissed and accused Kailash is acquitted in this case.
Digitally signed Directly Dictated on the PRANJAL by PRANJAL ANEJA Computer System and ANEJA Date: 2018.09.13 16:50:40 +0530 Announced in the open (PRANJAL ANEJA) Court on 12.09.2018 Metropolitan Magistrate-01 Shahdra District, Karkardooma Courts, Delhi. Comp. ID no. 476/16 Sanjeev Kumar Vs. Kailash (12.09.2018) Page no. 12 of 12