Delhi District Court
Vijender Kumar vs Amit Ahuja on 22 December, 2018
IN THE COURT OF SH. ASHOK KUMAR, MM04 (NI ACT)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CC No. 533108/16
U/S 138 NI Act
Vijender Kumar,
S/oSh. Salig Ram,
R/o C6, Behind G.B. Pant Hospital,
new Delhi110002. .......................Complainant
Versus
Amit Ahuja
S/o Sh. P.S. Ahuja,
R/o 4/57, WEA, Karol Bagh,
New Delhi110005 .........................Accused.
Offence Complaint of or proved. : Section 138 of Negotiable
Instrument Act.
Plea of accused : Pleaded not guilty
Date of Institution : 08.04.2011
Date of Reserving order : 22.12.2018
Final order : Acquitted
Date of pronouncement : 22.12.2018
JUDGMENT
FACTS OF THE CASE The facts of the case as per the complaint are that the accused in discharge of liability to repay the friendly loan advanced by the complainant issued the cheque in question bearing No. 128030 dated 08.02.2011 for Rs. 5,00,000/ drawn on Corporation Bank Ltd. Asaf Ali Road Branch, Delhi in favour of the C.C. No. 533108/16 Page1of 7 complainant which upon presentation got dishonoured for the reason "
Insufficient Fund" and even after the expiry of statutory period of 15 days of service of legal notice dated 25.02.2011, did not pay the cheque amount. TRIAL PROCEEDINGS 2 Thereafter, the complainant filed the complaint under Sec. 138 NI Act after the accused failed to make the payment within 15 days of the receipt of legal notice. On the said facts, the accused was summoned and notice under Sec. 138 NI Act was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, upon allowing the application u/s 145(2) NI Act, case was fixed for complainant's evidence, wherein complainant has been examined as CW1 and one Pankaj Kumar, clerk from the Bank, was examined as CW2 and thereafter vide order dated 18.10.2014 CE was closed. Statement of accused was recorded and thereafter accused examined himself as DW1 and one Bhagwan as DW2 in his defence. Thereafter, final arguments were heard. The following documents were relied by the complainant in her evidence :
3 Complainant proved the following documents in his presummoning evidence : i The cheques in question is Ex. CW1/1.
ii Bank returning memo is Ex. CW1/2.
iii Legal notice and postal and AD receipt Ex. CW1/3 to Ex.
CW1/5.
iv Affidavit in evidence is Ex.CWA.
v. Statement of account of accused and account opening form are
Ex. CW2/1.
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4 Relevant Law:
Section 139 NI Act provides as under: Presumption in favour of the 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.
Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Hence, it is clear from the said provision that it raises the presumption that the cheque was given by the accused to the complainant in consideration of a subsisting legally recoverable debt or liability. Said presumption throws the onus of rebuttal on the accused who can rebut the same on a preponderance of probability that there is no subsisting legally recoverable debt or liability as per the facts and circumstances of the case. Now the question is whether the accused has been able to rebut the presumption u/s 139 NI Act which will be clear from the following discussion.
5 Case of the complainant.
The complainant has deposed as CW1 that accused has friendly relation with the complainant and in lieu thereof, he has advanced a friendly loan to the accused and in discharge to repay the said friendly loan the accused has issued the cheque in question and rest of the details have already been mentioned in the preceding portion of the judgment.
6 Reasons for the judgment:
I have perused the record and considered the written submissions of the complainant. The facts as revealed from the statement of the accused u/s 313 C.C. No. 533108/16 Page3of 7 Cr.P.C as well as the defence evidence of the accused as DW1 and which have not been denied by the complainant are that the complainant was working as an LIC agent under the subordination of his senior who was the accused herein employed with LIC as Development Officer. The case of the complainant is that he issued the loan to the accused persons in the sum of Rs. 5,00,000/ separately and Rs. 40000/ separately. The said loan as per the cross examination of the complainant, was advanced to help the accused in his business. However, when questions were asked regarding the income of complainant, the capacity to handover such a huge loan amount was found very much wanting in the complainant. The complainant in the cross examination dated 1.3 2014 when asked about the income tax return, he deposed that he did not file any income tax return because he did not fall within the income tax slab and as per his own admission he was working as an LIC Agent. Hence, it is clear that the complainant was not having enough income to fall within the tax bracket and in such a scenario it appears very strange that he is advancing a loan of such huge amount. Reinforcing the belief that the complainant lacks capacity to handover such a huge loan amount is his statement that the loan was arranged from the income he had earned while working in Dubai and that he sold jewellery for a sum of Rs. 2,25,000/ in July August2010. Neither the complainant has verified by any documentary evidence his visit to Dubai nor the income from Dubai nor any receipt regarding the selling of jewellery. It is against the usual course of nature that a person of meager means would issue such a huge loan instead of setting his house in order. The said statements found mentions in the cross examination of complainant dated 1.3.2014 as follows " My annual income from all sources in the year 2010 was around Rs. 2,50,000/. live alongwith my wife C.C. No. 533108/16 Page4of 7 and and two minor children. In the year 201011, I did not file my income tax return. Volt. My income was tax free. The amount lying in my home was brought by me from Dubai and by selling the jewellery articles. I had sold the jewellery for sum of Rs. 2,25,000/ in JulyAugust2010". Further , the case of the complainant appears even more doubtful because in the cross examination he states that the loan was given to the accused at the same time when the accused issued the cheque in question. As per the affidavit of the complainant the cheques were issued in starting of year 2011 whereas the complainant in his cross examination states that the loan was given in cash in December2010 which found mentions in cross examination as " The payment was made by me on 23.12.2010. The payment was made in cash". Further the complainant states in cross examination that the amount was given in the presence of one employee of LIC namely Rohit but he is not examined and the said cross examination is mentioned in cross examination dated 01.03.2014 as " Apart from accused and his wife one employee Rohit was also present". Further the accused examined himself as DW1 and took the defence that blank cheque was issued to the complainant for making down payment of a motorcycle for the work of the complainant who was working as LIC agent. The blank cheque was issued because the accused was unsure as to the brand of the motorcycle the complainant would buy. DW1 gives further reason as to why he was interested that the complainant purchases the motorcycle because the complainant used to crib that he was having a old motorcycle which was giving lot of trouble in the work as LIC agent and his performance is suffering because of an old troublesome vehicle and the accused being his senior wanted him/the complainant to improve upon his performance.
C.C. No. 533108/16 Page5of 7 Further the salary of the accused was only Rs. 25000/ per month and there was no way he would take the loan of such huge amount as he was not having capacity to repay the same. Also the accused DW1 has disputed the averment of the complainant in the cross examination dated 1.3.2014 that though the loan amount was lying at the house of the complainant, yet he had given the amount to the accused in the LIC Office. The complainant had admitted that the amount was lying at his house for six months and that his house is only at a distance of one and half kilometers from his home which found mentions as " The office is at a distance of one and half Km. From my home. I visited the office by my bike bearing registration no. DL3S5990". There is logic in what the complainant states that when the distance is so close between their respective houses, if he needs the money he would have gone to the complainant's place to collect the same which found mentions as " The strange thing is that the complainant was at that time residing in G.B. Pant Staff quarters which is just about a kilometer away from my office. If I needed the money, I should have gone to the complainant's place and in the presence of his wife and other family members should have taken the money" . In view of the improbable version of the complainant and doubtful capacity to issue the loan, the defence of the accused is highly probable that he issued a blank cheque so that the complainant may buy a motorcycle which will help him in his field job as LIC agent. There was nothing in the cross examination of the accused/DW1 which could be rebutted by the complainant.
The settled law is that accused is only expected to probablize his defence only on a preponderance of probabilities. In the present case accused has been C.C. No. 533108/16 Page6of 7 able to show that there was no evidence to prove that complainant has legally recoverable debt or liability to recover towards repayment regarding which the cheque was issued by the accused.
7 Decision:
Accordingly, in view of above discussion, the accused is held not guilty and accordingly the accused is acquitted of the offence under 138 N.I Act. Surety stands discharged. Documents if any be returned as per rules. File be consigned to record room after due compliance.
Announced in the open (ASHOK KUMAR)
Court on 22.12.2018 MM04(NI ACT) CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
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