Delhi District Court
Debashish Ghosh vs . Arijit Malik Cc No. 24297/17 Page No. 1 ... on 6 November, 2019
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-033772-2017
CC No. 24297/17
Debashish Ghosh
S/o Sh. P.B. Ghosh
R/o Flat no. 418, DJA Apartments,
Sector-13, Dwarka, Delhi. ............Complainant
Versus
Arijit Malik,
S/o Sh. B.B. Malik.
Flat no. 708, Pkt B, Om Apartments,
Sector-14, Dwarka, New Delhi
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 28.11.2017
(4) Date of conclusion of arguments: 23.10.2019
(5) Date of Final Order : 06.11.2019
(6) Final Order : Acquitted
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JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he had friendly relations with accused. It is alleged that accused approached complainant for friendly loan of Rs. 50,000/- on 05.02.2017. It is further alleged that in discharge of his liability, accused issued one post dated cheque of Rs. 50,000/- i.e. cheque in question bearing no. 044289 dated 04.10.2017 drawn on Axis Bank Ltd, Sector 54, Gurgaon, to complainant with an assurance of its encashment. After due date of cheque in question, the complainant presented the cheque in his account maintained at Oriental Bank of Commerce, Sector-4, Dwarka, Delhi, which was returned with the remarks "Payment Stopped by Drawer" vide bank return memo dated 07.10.2017.
Thereafter, complainant served a legal notice dated 16.10.2017 upon the accused through his counsel demanding the said amount. The accused sent reply to the legal notice stating that he had taken only Rs. 15,000/- from complainant and also paid sum of Rs. 50,500/- to the complainant. He stated that he had given the cheque in question as post dated security cheque. Thus, accused denied liability towards complainant. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record, original cheque of Rs. 50,000/- i.e. cheque in question bearing no. 044289 dated 04.10.2017 drawn on Axis Bank Ltd, Sector 54, Gurgaon, as Ex. CW-1/1, cheque returning memo dated 07.10.2017 as Ex. CW-1/2, legal demand notice dated 16.10.2017 as Ex. CW-1/3, receipt of speed post as Ex. CW-1/4 and reply dated 03.11.2017 to the legal demand notice as Ex. CW-1/5.
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4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 07.06.2018 to which he pleaded not guilty and claimed trial. He admitted his signature on the cheque in question and also admitted filling in all the remaining details in the cheque. He stated that he had purchased a phone from Flipkart in October, 2016. At that time, he did not have the Credit Card to purchase the same. Therefore, he used the credit card of complainant to purchase the phone. Thereafter, in January, 2017, he required some money and the complainant transferred Rs.10,000/- into his account and also gave him Rs.5000/- in cash. At that time, he owed Rs.30,000/- to the complainant. The complainant asked for a security cheque from him to secure the payment. He issued the cheque in question of Rs.50,000/- to the complainant as security cheque. Thereafter, he paid his complete debt to the complainant in installments either through transfer into his account or through PayTM. When he asked for return of his security cheque, complainant refused the same. The said cheque has been misused by the complainant. He admitted receipt of legal notice.
5. Thereafter, application under Section 145 (2) of the Act to cross-examine the complainant was filed on behalf of the accused. However, it was noted that in the application U/s 145 (2) of the Act, accused had averred that he had already returned/paid the friendly loan to the complainant before date of repayment. Even in the notice U/s 251 Cr.P.C, accused had merely pleaded not guilty and claimed trial stating that amount taken from the complainant had been repaid. In view of the same, no ground for cross examination of complainant was made out as the repayment made, if any could be shown by the accused in defence evidence itself. Therefore, in view of the decision of the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State & Anr., Crml. MC No. 1996/2010, DOD 28.07.2010, the right of accused to cross examine the complainant was closed vide court order.
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6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated his defence as stated in answer to notice under Section 251 Cr. P.C.
7. Accused preferred to lead evidence in his defence and had examined himself as DW-1 and one Rahul Vincent as DW-2. Both the witnesses were cross- examined by counsel for complainant. The accused did not examine any other witness and vide his statement, defence evidence was closed.
8. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque as well as filling in all the details, in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that the accused had taken contradictory lines of defence in answer to legal demand notice and during trial. He argued that the payment received from the accused by the complainant as shown during trial was not regarding the present loan, rather it was for other loans. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
9. Per contra, on behalf of accused, ld. Counsel reiterated the submissions made by accused in his plea of defence at the time of framing of notice under Section 251 Cr.P.C, statement under Section 313 Cr.P.C and in defence evidence. It was argued that the accused had made payment of over Rs. 50,000/- to the complainant through net banking and various transactions which was not denied by the complainant. He argued that as per case of complainant cheque in question was given as post dated cheque, however, in friendly loan there is no security cheque. He argued that there was no mention in the complaint or Debashish Ghosh vs. Arijit Malik CC No. 24297/17 Page no. 4 of 11 evidence affidavit of the complainant as to the date on which loan was given. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
10. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
11. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
Debashish Ghosh vs. Arijit Malik CC No. 24297/17 Page no. 5 of 11 "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
13. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
14. In the present case, accused has admitted his signatures on the cheque in question in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C. He did not deny his signature on the cheque in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the Debashish Ghosh vs. Arijit Malik CC No. 24297/17 Page no. 6 of 11 presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
15. It is the defence of the accused as brought out from his testimony as DW-1 that he had purchased a phone worth Rs. 15,000/- in October 2016 by using credit card of complainant. Thereafter, in January 2017, Rs. 10,000/- was transferred in his account and Rs. 5,000/- given in cash by complainant. Thus he had taken total amount of Rs. 30,000/- from complainant. He issued a cheque in question of Rs. 50,000/- to complainant as a security cheque. However, thereafter he repaid Rs. 50,000/- to complainant through digital payment platforms and internet banking. However, the cheque was returned to him by complainant and he issued stop payment instructions of the cheque to his bank.
16. In support of his defence, to show various re-payments made to complainant, he had also placed on record various account statements viz, (1) his Axis Bank account statement as Ex. DW-1/C1, (2) Paytm statement as Ex. DW- 1/C2, (3) Digi bank account statement as Ex. DW-1/C3, and (4) account statement of his mother as Ex. DW-1/C4. From these statements, accused showed total payments of Rs. 37,010/- into the account of complainant. By producing the records of repayment made to complainant, accused pointed out Debashish Ghosh vs. Arijit Malik CC No. 24297/17 Page no. 7 of 11 material infirmities in case of complainant, to rebut the statutory presumption by showing the non- existence of debt.
17. Moreover, in cross examination of accused, he was confronted with bank statement of complainant Ex. DW-1/C-5 and asked whether payments of Rs. 2038/-, Rs. 4076/-, Rs. 8000/- and Rs. 10,500/- made into account of accused, vide entries dated 14.07.2016, 23.07.2016, 13.08.2016 and 21.01.2017 respectively, were as loan to accused from complainant. In answer to the same accused stated that the amount of Rs. 10,500/- received by him on 21.01.2017 was the amount taken by him from complainant in January 2017 as already stated by him. He also admitted that the amount so received was actually Rs. 10,500/- and not Rs. 10,000/-, as stated by him in his examination in chief. He further stated that he could not say as to what the entries dated 14.07.2016, 23.07.2016 and 13.08.2016 pertained to as it had been long time and him and complainant were friends having continuous transactions between them.
18. A purposive reading of the evidence placed on record regarding the transactions between accused and complainant, at different times, reveals that there were continuous transactions to and fro, between complainant and accused through banking channel and digital payment platforms atleast from July 2016 to October 2017. However the same do not find mention in the case of complainant. The cryptic case of complainant is that accused approached him for loan of Rs. 50,000/- on 05.02.2017 and issued cheque in question dated 04.10.2017 as post dated cheque. Though, the date of advancement of loan is not mentioned in complaint, evidence affidavit or legal notice of complainant, however, purposive reading of the same shows that as per case of complainant, the same was advanced at the time when the loan was asked for. Thus, the present loan of Rs. 50,000/- in cash is alleged to be advanced in February 2017. Moreover, it is not the case of the complainant that any amount regarding the present alleged loan of Rs. 50,000/- has been repaid by the accused and there is no mention of any such repayments in the complaint, evidence affidavit or in the legal demand notice.
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19. However, even after the alleged advancement of the loan, accused has shown various payments made to complainant. Firstly, From the bank statement Ex. DW-1/C-1, he showed payment of Rs. 2505.75/- made to complainant on 25.10.2016 and payment of Rs. 5500/- made to complainant on 10.03.2017. Secondly, from Paytm statement Ex. DW-1/C-2, he showed payments of Rs. 4500/-, Rs. 5000/-, Rs. 1000/-, Rs.5,000/- and Rs. 2,500/- on 09.07.2017, 06.03.2017, 06.03.2017, 25.05.2017 and 09.12.2016 respectively. Thirdly, from Digibank accounts statement Ex. DW-1/C-3, he showed payments of Rs. 4000/- and Rs. 4000/- on 04.10.2017 and 22.08.2017, respectively. Fourthly, accused deposed that some repayment was made from account of his mother, statement Ex. DW-1/C-4, i.e. payment of Rs. 3,005/- on 03.07.2017, to the complainant. Thus accused showed total payments of Rs.37,010/- into the account of complainant, out of which payment of Rs. 32,005/- was made after 05.02.2017 i.e. alleged advancement of loan. These payments were not disputed or denied by the complainant during cross-examination of accused. No question or suggestion was put to accused to deny the same.
20. The complainant has not offered any explanation whatsoever as to for what purpose the said payment was being made continuously and consistently in similar amounts by the accused during the same timeline as that of alleged loan, if not for re-payment of the amount taken by accused, as per version of accused. Furthermore, there is also no explanation as to why the present alleged loan was advanced in cash as single isolated transaction, when all other transactions between the parties were through banking channel and digital platforms. This derives higher significance since there is no written document or the alleged loan. This reveals that the complainant has not disclosed the accurate and entire gamut of transactions between the parties. The same casts doubt on case of complainant. The same also probabilizes the defence of accused that cheque in question was given as security cheque which was misused, even though repayment was made otherwise.
21. In support of defence version, one Rahul Vincent also appeared as DW-2.
Debashish Ghosh vs. Arijit Malik CC No. 24297/17 Page no. 9 of 11 He deposed that he had taken loan of Rs.13,500/- from accused. When he offered repayment to accused, he told him to deposit the amount into the account of complainant. Thus he deposited Rs. 13,500/- into account of complainant as shown in his bank statement Ex. DW-2/1 vide entries dated 08.12.2016 and 29.12.2016. However, in cross examination of DW-2 it was brought out that the said witness and his mother had received an amount of Rs. 1,70,000/- from Mr. Priyabrata Ghose i.e. father of complainant through entries dated 28.12.2016, 09.01.2017 and 19.01.2017, into their account. When asked as to what the said amount pertained to, the witness stated that same was received into his account and account of his mother, towards repayment of loan given by him and his mother in cash to father of complainant. However, the said witness did not produce any record of the alleged cash loan. This shows that DW-2 was himself dealing with complainant and his family in various transactions and payment of Rs. 13,500/- made by him into account of complainant directly cannot be attributed to the loan of accused in absence of any evidence to corroborate the same. Hence this version of DW-2 that payment made by him into account of complainant was towards repayment of loan of accused, is not credible.
22. In light of above facts and circumstances, it is revealed that the case of the complainant does not stand scrutiny of the court. It has been defence of accused throughout trial that he had taken not taken any loan of Rs. 50,000/- from complainant, rather he had taken only Rs. 30,000/- from complainant and cheque in question was given as security cheque for repayment. The accused has shown repayment of Rs. 37,010/- into the account of complainant, even out of which payment of Rs. 32,005/- was made after 05.02.2017 i.e. alleged advancement of loan. Complainant failed to furnish any explanation as to for what purpose the payments were being received continuously into his account, even after advancement of present alleged loan in cash. The same further probabilizes the defence of misuse of security cheque being taken by accused. Advancement of present loan in cash, whereas all previous dealings were through bank, also raises doubt on case of complainant. There is no reliable evidence produced by the complainant to substantiate the advancement of loan to accused.
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23. In order to rebut the presumption of Section 139 of the Act accused is not required to bring direct evidence but should adduce sufficient cogent evidence or can rely upon the circumstances which shows the probability of non- existence of debt or liability. Accused has to prove his defence on the scale of preponderance of possibilities as held in Kumar Exports v. Sharma Carpets (supra). In present matter, from the defence evidence, accused has been able to raise a reasonable probable defence and has been able to rebut the presumptions under sections 118 and 139 of the Act and the reverse onus cast upon him has been discharged.
24. Since the accused has rebutted the statutory presumptions, the onus again shifts back upon the complainant. Now the presumptions under Sections 118 and 139 of the Act will not again come for the rescue of the complainant and case of complainant has to stands on his own legs. In the instant case, complainant has failed to discharge the burden of proof and could not prove the case beyond reasonable doubt.
25. Accordingly, the accused Arijit Malik, S/o Sh. B.B. Malik is acquitted of the offence under section 138 of the Act.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date: 2019.11.06
14:31:45 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 06th NOVEMBER 2019 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
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