Delhi District Court
Pavitra Devi vs Arun Kumar on 29 June, 2018
IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
New CC No. 6885/14
Unique case ID No. 4996342/16
Under Section 138 of N.I. Act
In the matter of:
PAVITRA DEVI
w/o Shri Mukesh Kumar
R/o House no.A-289 E,
Madhu Vihar, Dwarka,
New Delhi - 110 059.
... Complainant
Versus
ARUN KUMAR
s/o Late Sh. Mohar Singh
C/o Shri Pritam Singh s/o Late Shri Dharamvir Man,
Near Chandan Market,
Behind Rahul Computers House,
Main Narela Road Alipur,
New Delhi-110 036. ... Accused
Also at:-
M.S.R. Tyres
Khasra No.595, Seed Farm Road,
Pulia ke Pass, Alipur, Delhi - 110 036.
Date of Institution : 23.07.2012
Date on which judgment was reserved : 04.06.2018
Date of Judgment : 29.06.2018
JUDGMENT
1. Shorn off unnecessary details, the case of the complainant as narrated in the complaint is that the accused is New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR the cousin brother of the complainant and was having good family relations with the complainant. It is the case of the complainant that the accused alongwith his wife namely Rekha Devi (accused in CC no.6961/14) approached the complainant in the month of August 2011 and requested the complainant for a friendly loan of Rs.9 lacs for a period of six months to expand their business which was being run by the wife of the accused under the name and style of M/s MSR Tyres, which was dealing with MRF Tyres. Keeping in view, good family and friendly relations, the complainant agreed to advance the loan as was requested by the accused and his wife. The said loan of Rs.9 lacs was advanced to the accused and his wife in three four installments on the assurance of the accused and his wife that the same shall be repaid within a period of six months. It has been averred by the complainant that in the month of February 2012, the complainant approached the accused and his wife and demanded repayment of the loan amount. However, the accused and his wife showed their inability to repay the said loan as they were facing some financial difficulties and requested the complainant for some more time to repay the loan amount. Again in the month of March 2012, when the complainant approached the accused and his wife for repayment of loan amount, the accused and his wife again requested for some time till April 2012. Finally, in the month of April 2012, the accused issued two cheques bearing no.353045 dated 30.04.2012 for Rs.2.5 lacs and cheque bearing no.353046 dated 15.05.2012 for Rs.1.5 lacs both drawn on State Bank of India, Ghonda, Delhi -110 053 (hereinafter called the cheques in question). At the same time, the wife of the accused also issued cheques bearing.131643 New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR dated 02.05.2012 for sum of Rs.2 lacs and Cheque bearing no.131644 dated 16.05.2012 for a sum of Rs.3 lacs both drawn on Oriental Bank of commerce, N-104, Kirti Nagar, New Delhi 110 015 (in respect of which the complainant has filed a separate complaint under section 138 NI Act against the wife of the accused Rekha Devi, CC no.6961/14) to discharge their respectively liabilities towards the complainant for repayment of the loan amount and requested the complainant to present the cheques in question for encashment after 15.05.2012. The complainant presented the cheques in question for encashment on 17.05.2012 which to the despair of the complainant, got dishonoured on presentation with the remarks ''Funds Insufficient'' vide cheque return memo dated 18.05.2012 (Ex.CW1/3 and Ex.CW1/4). Thereafter, the complainant immediately contacted the accused and his wife but, the accused refused to make the payment. This constrained the complainant to send a legal notice dated 11.06.2012 to the accused, which was duly replied by the accused wherein the accused flatly refused to make repayment of the cheque amount and this led to the filing of the present case.
2 Cognizance of the offence under Section 138 NI Act was taken against the accused and summons were issued. The accused entered appearance. Notice under Section 251 CrPC was framed against the accused to which he pleaded not guilty. In his plea of defence, recorded on 05.07.2013, accused denied the factum of issuance of cheques in question to the complainant and taking of any loan. It was the defence of the accused that one Shri Ram Avtar, brother of the complainant, was working New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR and looking after and managing the transport business of the wife of the accused. The said Ram Avtar had left the job on 17.03.2011, without any prior notice, as his relation with the accused and his wife was not cordial and at the time of leaving the job, he had stolen / taken without permission, the cheques in question in the year 2011. It was further submitted by the accused that the said Ram Avtar is the real brother of the complainant and therefore, the complainant has misused the cheques in question in connivance with her brother Ram Avtar. The accused also submitted that he had replied to the legal demand notice sent by the complainant on 29.06.2012.
EVIDENCE OF THE COMPLAINANT
3. In Post Summoning Evidence, the complainant chose to examine herself as CW1 and adopted her Pre-Summoning Evidence. The accused had filed application under Section 145(2) NI Act and the accused was allowed to cross examine the complainant. However, nothing substantial could be elicited from the cross examination of the complainant which could support the defence of the accused or create doubts on the credibility of the witness. In her cross examination, the complainant admitted that the accused is her cousin brother and she has known him since she has attained the age of understanding. The witness has also admitted that she is earning about Rs.15-20,000/- per month from her business of boutique. The witness has also admitted that the entire loan amount of Rs.4 lacs, was advanced to the accused in cash, in one go, and the same was given without execution of any document as the accused was her cousin New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR brother and she was having faith on him. It has been categorically deposed by the complainant that out of total loan amount of Rs.9 lacs, which was issued jointly to both accused, husband and wife, a sum of Rs.4 lacs, in cash, was advanced to the accused. The complainant has testified that she had advanced sum of Rs.7 lacs to her brother-in-law namely Bijender as loan in the month of July 2011. The complainant also testified that she was having sum of Rs.3 lacs, in cash, with her as her brother-in-law namely Bijender had repaid the loan amount, which was advanced to him by the complainant in the month of July 2011. It was further deposed by the complainant that she had demanded the loan amount at least, two-three times, prior to the date on which the cheques in question were issued by the accused to discharge his liability to repay the loan amount. The witness admitted that M/s MSR Tyres was dealing with MRF Tyres and was owned by the wife of the accused. It was categorically testified by the complainant that the cheques in question were duly filled up at the time when the same were handed over to her.
4. To prove and to corroborate her assertion that she was having financial capacity to advance the alleged loan, in cash, the complainant chose to examine one Mr. Vishal Singh, Assistant Manager from South Indian Bank, Sector 10, Dwarka, New Delhi as CW2, where the complainant was maintaining her account and had deposited the cheques in question for encashment. The said witness brought on record statement of account bearing number 039805300001283 for the period 01.01.2011 to 30.06.2012 along with certificate under 2A of New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR Bankers' Book Evidence Act. The same is exhibited as Ex.CW2/A (colly).
DEFENCE OF THE ACCUSED 5 The version of facts as discernible from the plea of defence recorded at the stage of framing of notice under Section 251 CrPC, from cross-examination of complainant CW1, from statement of accused recorded under Section 313 CrPC and from the testimony of the accused (DW4) are that the accused had denied the factum of taking of any loan from the complainant. The version of the accused is that the cheques in question are stolen cheques and they same were stolen by one Shri Ram Avtar, brother of the complainant who was in employment of his wife, and the same have been misused by the complainant in connivance with the said Ram Avtar.
6. Elaborate defence evidence was led by the accused. The accused examined one Tax Assistant who appeared as DW1 and he brought on record, the copies of income tax returns of his wife namely Rekha Devi. The accused also examined one accountant namely Ajay Kumar Singh from V. Khattar & company, C.A. of M/s MSR Tyres. Said witness (DW2), brought on record the balance sheets of M/s MSR Tyres for the year ending 31.03.2011 and 31.03.2012 Ex.DW2/A.
7. To prove the fact that M/s MSR Tyres, of which the wife of the accused was the proprietor was having exclusive dealership of MRF Tyres, the accused summoned one Service New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR Engineer from MRF Tyres. The said witness namely Rajiv Kumar, appeared as DW3 and proved the fact that in the year 2010, the firm namely M/s MSR Tyres was alloted exclusive dealership of MRF Tyres. However, in his cross-examination, the witness (DW3) admitted that the status of dealership of any exclusive dealership can further be upgraded to tyre and service franchise.
8. To prove his version of facts, the accused chose to examine himself as Defence witness and stepped into witness box as DW4. In his testimony, the accused testified that one Shri Ram Avtar, used to fill diesel / petrol in the vehicles owned by him and his wife after using his credit cards. To make payment towards the credit cards bills, the accused used to issue blank signed cheques to the said Ram Avtar. The accused also testified that the cheques in question belong to such series of cheques which were already encashed in the year 2007. It was testified by the accused (DW4) that he got information regarding the misuse of the cheques in question after he received the legal demand notice sent by the complainant. The accused has filed on record a copy of his savings bank account passbook of State Bank of India. The same is Ex.DW4/1. The accused has also filed copy of his credit card statement Ex.DW4/7 to show that one cheque bearing no.343041 was used by him to make payment for credit cards bills. In his cross-examination, the accused admitted that after getting exclusive dealership of MRF Tyres, one can rise to next level of obtaining tyres and service dealership. The accused also admitted that M/s MSR Tyres was maintaining its separate bank account and its authorized signatory was his wife Rekha Devi. The accused also admitted that he has not New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR lodged any complaint against the said Ram Avtar after he got information regarding the misuse of cheques in question.
9. The factual position being thus, now let us quickly run through the legal benchmark which is to be satisfied in order to constitute an offence u/s 138 NI Act-:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) that a cheque should have been issued for discharge, in whole or in part, or any debt or other liability.
(iii) that the cheque has been presented 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 is earlier.
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. Being cumulative, it goes without saying that it is only when, all the aforementioned ingredients are satisfied, that a New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
11 On analysis of the facts and the legal position stated above, the court finds the parties to be at variance on one primary issue i.e. whether the cheques in question were issued by the accused in discharge of legally enforceable liability to repay the loan amount of Rs.9 lacs which was advanced by the complainant to the accused and his wife.
12. File perused and submissions heard. Let us determine, whether the accused has succeeded in establishing the defence taken by him in respect of cheques in question. The service of legal notice has been admitted and therefore, let us turn into the core issue as to whether the cheques in question was issued to discharge any legal liability.
EXISTENCE OF LEGALLY ENFORCEABLE DEBT OR LIABILITY.
13. Let us briefly recapitulate that the accused has admitted that the cheque in question bears his signature and is drawn on a bank account maintained in his name. However, it is the case of the accused that the cheques in question were stolen by one Shri Ram Avtar and has been misused by the complainant in connivance with the said Ram Avtar.
14. Ld. Counsel for the complainant has implored the court that facts have been established by the complainant, which necessitate the invocation of presumption of the cheque having New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR been issued for good consideration under section 139 read with Section 118 (a) of N.I. Act, 1881.
15. On the other hand, Ld. Counsel for the accused has argued that the accused has not admitted that the cheques in question were issued to the complainant by the accused and therefore, it is for the complainant to prove beyond reasonable doubt as to how the cheques in question reached into the hands of the complainant. At the same time, it has been argued on behalf of the accused that the cheques in question are stolen cheques and therefore, no occasion arises for invoking presumption under section 139 read with Section 118 (a) of NI Act.
16. In my opinion, a factual basis is established, to invoke the presumption of cheque having been issued in discharge of a legally sustainable liability and drawn for a good consideration by virtue of Section 118(a) read with Section 139 of NI Act as the accused has failed to bring even an iota of evidence to prove his assertion that the cheques in question were stolen by Ram Avtar. At the same time, admittedly, the accused has not lodged any report with any authority till date against the said Ram Avatar for theft / misuse of cheques in question. Nothing rankles more in the human heart than a brooding sense of injustice and therefore, the conduct of the accused in remaining indolent and not filing any complaint against Ram Avtar reeks of culpability.
17. It is an established proposition of law that once the New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR 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 139 NI Act has to be raised in favour of the complainant. It is a mandatory presumption though the accused is entitled to rebut the said presumption. In a catena of judgments, it has been laid down by the Hon'ble Apex court that such presumption in favour of the complainant cannot be rebutted by a mere plausible explanation but more than a plausible explanation by way of rebuttal evidence.
18. In my opinion, the accused has not succeeded in rebutting the presumption of legal liability or even probablizing his defence. The defence of the accused is that he has not issued the cheques in question to the complainant but, the same were handed over in blank signed condition to one Ram Avtar I.e the brother of the complainant in the year 2007 and which were later taken by him without the permission of the accused and were subsequently misused by the complainant.
19. The accused has brought on record his savings bank account statement Ex.DW4/1 to prove his assertion that the cheques in question were handed over to one Shri Ram Avtar in the year 2007. Ld. Counsel for the accused has drawn my attention to Ex.DW4/1 and has argued that a bare perusal of the passbook of the accused clearly shows that the cheques immediately preceding and succeeding the cheques in question have been encashed in year 2007. It has been argued that the last cheque of the series bearing no.353050 was encashed way back in the month of November 2007 and the other cheques of New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR the same series to which the cheques in question belong, have been encashed in the year 2007 itself. It has been argued on behalf of the accused that the presumption that the accused may have earmarked and set a part the cheques in question in 2007, pre-empting that he could use the same in year 2011-12 and take the present defence would amount to stretching the imagination too much. It has been argued on behalf of the accused that the accused cannot be credited with such supernatural premonitory powers and thus, the ordinary presumption which can be raised is that the cheques in question would have been issued, even if not perfectly serialwise, but broadly in chronological order. Therefore, it has been vociferously argued that this probablizes the defence of the accused to a great extent that the cheques in question relate to year 2007 and that in the normal course of human conduct, the cheques could not have been issued to the complainant by the accused in the year 2012 as has been alleged by the complainant. At the same time, reliance has been placed by the accused, on the Judgment titled as 'K. Parakashan versus P. K.Surenderan', Cr.Appeal no.1410/2007 passed by Hon'ble Apex Court to argue that such kinds of cheque are not genuine.
20. To appreciate the argument advanced on behalf of the accused, it is pertinent to mention that the defence of the accused which was disclosed by him during his testimony as DW4 is that the accused used to hand over blank signed cheques to Ram Avtar for purpose of making payments for his credit card bills as the said Ram Avtar used to fill diesel / petrol in the vehicles by using the credit card of the accused.
New CC No. 6885/14 Unique case ID No. 4996342/16PAVITRA DEVI VS ARUN KUMAR
21. A bare perusal of Ex.DW4/1 belies the claim of the accused that the series of cheques (including the cheques in question), were handed over to Ram Avtar for making payment for credit card bills. The accused has placed on record one credit card statement Ex.DW4/7, which shows that only cheque bearing no.353041 was used to make payment for credit card bill of the accused. At the same time, it is apparent from bare reading of the entries of the passbook Ex.DW4/1, that the other cheques of the series were not used for making payment for credit card bills.
22. At the same time, judicial notice can be taken of the fact that in the ordinary course, the bills for credit card are generated on monthly basis and the holder of the credit card has to make payment of such bill on monthly basis. To the contrary, in the instant case, the cheques bearing no.353035, 353036, 353037, which precede the cheques in question, were all encashed in the month of October 2007. At the same time, the cheques bearing no.353047, 353048, 353049 and 353050, which succeed the cheques in question were also encashed in one month i.e. November 2007. Thus, it is plainly clear that the other cheques of the same series to which the cheques in question belong were not used for making payment towards outstanding credit cards bills as has been alleged by the accused. Therefore, in my opinion, the defence of the accused that series of cheques (which includes the cheques in question) were handed over to Ram Avtar by the accused for making payments for credit cards bills is not supported by the documentary evidence led by the accused.
New CC No. 6885/14 Unique case ID No. 4996342/16PAVITRA DEVI VS ARUN KUMAR
23. At the same time, what shatters the believability quotient of the defence of the accused is that there is no need / requirement of issuing blank signed cheques to any person to make payment in respect of the credit card bills as the bills which are issued to the holder of the credit card are usually for an ascertained sum and in case, the holder of credit card wishes to make payment, he / she would usually issue a cheque for such ascertained amount as the knowledge of such amount would be exclusively with such person only. Therefore, the conduct of the accused in issuing blank signed cheques for making payments for credit card bills, is highly un-natural and improbable and is opposite to the conduct of a reasonable man.
24. Reliance by the accused on 'K. Parakashan versus P. K.Surenderan', is misplaced, in so far as the factual matrix in the said case was totally different. In that case, apart from the fact that the cheques in question belonged to a series which was got encashed much prior to the alleged date of handing over of the cheque, there were numerous other deficiencies in the case of the complainant, which led to the acquittal of the accused. Hence, meaningful (and not pedantically) reading of the case relied upon by the accused, is totally distinguishable from the present case. It needs to be outlined that no precedent either statute or a Euclid's theorem. Every case is to be read Secumdum subjectum materiam i.e. in the specific light of its own facts and circumstances and after carefully discerning its ratio. It is well settled that judicial precedent cannot be followed as a statute and has to be applied New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR with reference to the facts of the case involved in it. What is of essence in a decision is its ratio and not every observations found therein, nor what logically follows from the observations made in it. It is to be remembered that a decision is only an authority for what it actually decides. Any phrase of sentence used in the judgment cannot be cherry - picked and used mechanically, totally shorn out of its context.
25. At the stage of final arguments, Ld. Counsel for the accused has argued that the complainant has admitted in her cross examination that the alleged loan was given in cash and the same has not been disclosed by her in her income tax returns, and therefore, the same cannot be termed as legally enforceable debt in view of the bar of section 269 S.S. of the Income Tax Act, 1961.
26. This argument advanced by Ld. Counsel for the accused is devoid off merits as it is a settled law that even if, the loan amount has not been disclosed by any person in his / her income tax returns, the same would be inconsequential. It is now fairly settled that the mandate of section 269 S.S. of the Income Tax Act extends only to the taker or receiver of the loan and not the giver. A bare perusal of section 269 S.S. of the Income Tax Act, 1961 shows that no person can accept any loan or deposit of Rs.20,000/- or more otherwise then, by way of an account payee cheque or an account payee draft.
27. Consequences of contravention of section 269 S.S. of the Income Tax Act have been provided in section 271 D of New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR Income Tax Act, 1961, which provides, that if, a loan or deposit is accepted in contravention of provisions of section 269 S.S. of the Income Tax Act, then a penalty equivalent to the amount of such loan, or deposit may be levied by the Joint Commissioner. Hence, even on a bare reading of these provisions, it is manifest that the bar relates to the receiving or taking of loan and not giving the same.
28. This aspect is very succinctly highlighted by Hon'ble High court of Bombay in the decision tilted as 'Krishna P. Morajkar vs. Joe Ferroa' decided on 19.07.2013, 2013 SCC online Bombay 862, which reads as follows:
''18. The Ld. Counsel for the respondent submitted that the observations of the Supreme Court in para 14 of the Judgment in Rangappa (supra) shows that the Supreme Court had not in any way casts any doubt on the correctness of the decision in Krishna Janardhan Bhat (supra), as it was based on specific facts and circumstances therein. Therefore, he submitted that observations in Krishna Janardhan Bhat (supra), about non-compliance of provisions of section 269 S.S. of the Income Tax Act and implications of section 271 D of Income Tax Act would still stand as good law. The Ld. Counsel for the appellant submitted that even these observations would stand impliedly over ruled. He pointed out that what was held in Krishna Janardhan Bhat (supra), was that advance taken by way of loan of more than Rs.20,000/- was only to be made by way of an account payee cheque. He submitted that in New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR Rangappa (supra), the Supreme Court was specifically considering the case of an advance of Rs.45,000/- made in cash and yet the Supreme court had upheld the conviction recorded. Thus, even those observations based on the provisions of section 269 S.S. and section 271 D of the Income Tax Act made in Krishna Janardhan Bhat (supra), would stand impliedly overruled. I am entirely in agreement with Ld. Counsel for the appellant because the Supreme court in Rangappa (supra) had specially noted the judgment in Krishna Janardhan Bhat (supra), that advance of more than Rs.20,000/-
was to be made only by way of an account payee cheque, and yet the Supreme Court accepted the case of the complainant who claimed to have made an advance of Rs.45,000/- in cash and proceeded to uphold the conviction, even though the case rested on the fact that the cash advance of sum more than Rs.20,000/- was made. Thus, on this aspect, also, Krishna Janardhan Bhat (supra), stood impliedly overrule by Rangappa (supra), and the Judgment is to be held rendered on the facts of that case, not laying down the law. Therefore, judgments, which follow Krishna Janardhan Bhat (supra), can be safely ignored.
19. There is another aspect of the matter. The Ld. Counsel for the respondent pointed out that in Krishna Janardhan Bhat (supra), attention of the Supreme Court was possibly not drawn to the actual New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR wording of section 269 S.S. of the Income Tax Act. He submitted that section 269 S.S. of the Income Tax Act, in fact, does not cast any burden upon a person making advance in cash to record it in his returns and does not prevent any such cash advanced from being made. ........................''.
A plain reading of section 269 S.S. shows that no person can accept any loan or deposit of a sum of Rs.20,000/- or more otherwise then by way of an account payee cheque or account payee draft. It does not say that a person cannot advance more than Rs.20,000/- in cash to other person. It is clear that the restriction on cash advances was infact on the taker and not the person who makes the advance. The penalty for taking such advance or deposit in contravention of provisions of section 269 S.S. was to be suffered by the one who takes the advance. Therefore, it is obviously impermissible to invoke these provisions for preventing a person from recovering the advance which he has made..............''.
29. It is clear from the above that non disclosure of an advance would not make the same non recoverable as it is incumbent on the person taking the advance to disclose the loan and not the person giving the same.
30. What further fortifies this conclusion is the decision New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR of Hon'ble High court of Delhi in the case of Mukesh Gupta vs P. K. Bajaj, CS (OS), number 1615/2003 decided on 20.11.2006, wherein the court, in a civil suit for recovery, quite categorically held, that even assuming a non disclosure in tax returns, merely that, would not render the contract of loan void and loan irrecoverable relevant excerpts from the decision are as follows:-
''36. On issue no.02 framed vide order dated 02.02.2006, suffice would it be note as held in report published as 2002 (8) SCC 31, Nutan Kumar & Ors vs Iind Additional District Judge & Ors., unless a statute specially provides that a contract contrary to the provisions of the statute would be void, the contract would remain binding between the parties and can be enforced between the parties themselves. Consequences, if any, other in law, would follow.
''37. The Ld. Counsel for the defendant could not show any statutory provisions under the Income Tax Act, 1961, or any other law which stipulates that a loan transaction not recorded in the Income Tax Returns, or a loan transaction which is in violation of section 69A, 69B or section 269 S.S. of the Income Tax Act, would be void.
38. I accordingly hold that the suit is not barred under section 69A, 69B or section 269 S.S of the Income Tax Act.....''.
31. It is, therefore, clear that the claim does not become irrecoverable on account of alleged violation of section New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR 269 S. S. of the Income Tax Act. Infact, the complainant has brought on record his bank account statement through CW2 to show his financial capacity and therefore, she has been able to demonstrate that she was financially competent to advance loan amount to the accused. On the other hand, it was for the accused to justify as to whether he had disclosed the same to the income tax department or not.
32. As a last ditch effort, it has been argued on behalf of the accused that the version of the facts as have been proferred by the accused, has believability quotient as the accused had promptly replied to the legal notice of the complainant and has led his reply. It has been argued on behalf of the accused that it has to be noted that the accused, at this very first opportunity, took the defence which has been taken during the trial. At the same time, it has been argued that there is consistency in the defence of the accused, cutting across various stages, right from his first letter i.e. the reply to the legal demand notice sent by the complainant, his plea of defence recorded at the stage of Section 251 CrPC and during his cross-examination as DW4. It has been argued on behalf of the accused that the accused has remained steadfast to his defence and has not wavered, which leads credence to his testimony. He has stuck to his hypothesis, even in the testing water of the cross-examination and nothing could be elicited from him, inspite of prolonged cross-examination that would render his defence unworthy of belief.
33. In my opinion, the aforesaid submissions of Ld. New CC No. 6885/14 Unique case ID No. 4996342/16 PAVITRA DEVI VS ARUN KUMAR Counsel for the accused is fallacious as the accused has miserably failed to bring on record even an iota of evidence, much less cogent, to support and prove his interested ocular testimony. It is trite that a lie repeated often will not and cannot become truth.
34. Thus, the sheer lack of even an iota of material on record, to support the defence of the accused, leads to the irresistible conclusion of the defence of the accused being sham and nothing but a cock and bull story.
35. Therefore, all factors, cumulatively seen, go on to show that the accused has miserably failed to probablize the defence set up by him with respect to the cheques in question amounting to Rs.4 lacs (Ex.CW1/1 and Ex.CW1/2). The presumption of legal liability under Section 118 (a) read with Section 139 of the NI Act has gone unrebutted. The complainant has successfully proved the basic ingredients of the offence under Section 138 of the NI Act.
36. Resultantly, the accused Arun Kumar stands convicted for the offence under Section 138 of the NI Act.
37. Let the convict be heard on quantum of sentence.
38. Let a digitally signed copy of the Judgment be supplied to the accused, free of cost and copy of the same be placed on record. Digitally signed PUNEET by PUNEET NAGPAL Decided on 29.06.2018.
NAGPAL Date: 2018.06.30
15:46:55 +0530
Announced in open court.
(PUNEET NAGPAL)
MM (NI Act)-01/SW/DWK
New Delhi
New CC No. 6885/14
Unique case ID No. 4996342/16
PAVITRA DEVI VS ARUN KUMAR