Delhi District Court
Shri Rajesh Jain vs . Surya Bhan Gupta on 11 January, 2010
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
IN THE COURT OF SH. AMIT KUMAR, ADDITIONAL SENIOR CIVIL JUDGE,
METROPOLITAN MAGISTRATE (NW), ROHINI COURTS, DELHI
Shri Rajesh Jain Vs. Surya Bhan Gupta
Case No. : 690/09
U/s : 138 NI Act
P.S : Shalimar Bagh
JUDGMENT
1. Name of the complainant : Rajesh Jain
2. Name of the accused, parentage & : Surya Bhan Gupta
address R/o 5/23B, Patel Gali,
Vishwas Nagar, Shahdara,
Delhi110032
3. Offence complained of or proved : 138 NI Act
4. Plea of the accused : Pleaded not guilty
5. Date of institution of the case : 21.11.2005
6. Date of reserve for Judgment : 21.12.2009
7. Final order : Acquitted
8. Date of such order : 11.01.2010
BRIEF REASONS FOR THE DECISION OF THE CASE :
1. Present is a complaint u/s 138 of Negotiable Instruments Act on the averments that the complainant has advanced a friendly loan of Rs.2,80,000/ to the accused vide loan agreement dated 15.09.04 for which a separate receipt apart from the loan agreement was also executed between the parties and when the complainant approached the accused for repayment of loan, after much persuasion, two cheques dated 05.10.05 of Rs.25,000/ each were IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI issued as part payment of the aforesaid loan which on presentation were dishonoured for the reasons 'funds insufficient' vide memo dated 07.10.05. Thereafter, a legal demand notice was served upon the accused who did not pay the cheque amount despite service of the notice. Hence, this prosecution.
2. Summons were issued u/s 138 of Negotiable Instruments Act to the accused and notice u/s 251 of the Code of Criminal Procedure was served upon the accused who pleaded not guilty and claimed trial on the defence that he has issued these cheques to one G.S. Saluja in 2002 when he started business with him for watches and the same have been misused by the complainant in league with Mr. G.S. Saluja.
3. Subsequently, complainant has examined himself as CW1 on affidavit and has proved on record the loan agreement and the receipt Ex. CW1/A & Ex. CW1/B, cheques in question Ex. CW1/C & Ex. CW1/D, returning memo Ex. CW1/E, legal demand notice Ex. CW1/F, its postal receipt, UPC and AD card are Ex. CW1/G, Ex. CW1/H, Ex. CW1/H & CW1/J respectively. Complainant was cross examined wherein the most important aspect is that he has admitted in his cross examination that he is in the business of finance personally as well as through chit fund company, but he does not have any money lending license. He has also admitted that accused was known to him through Mr. G.S. Saluja who is his father's friend, yet has taken the plea that loan of Rs.2,80,000/ was given to the accused out of his personal saving and not from his business of finance. He has also admitted that he has 12 more cheques signed by the accused and has also stated that he does not remember IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI from where he has purchased the stamp paper on which loan agreement was executed nor the name of the notary public who attested this document nor the place where the notary public is sitting. He also does not remember the account number and the name of the bank from which he has withdrawn the loan of Rs.2,80,000/ while giving loan to the accused.
4. Statement of the accused was recorded u/s 313 Cr.P.C. Accused in his defence has examined two witnesses one his bankers as DW1 who has proved on record the true copy of the cheque issuing register of the accused bank which shows that the cheque book in question was issued to the accused on 16.08.02 and out of this cheque book containing 20 leaves, 17 cheques are still unused. He has also placed on record computer generated statement of account of the accused Ex. DW1/2. DW2 is the Ahlmad who has placed on record the record of another case u/s 138 of Negotiable Instruments Act filed by the complainant against the accused wherein 3 cheques of the same cheque book, of Rs.25,000/ each were dishonoured for the same reason.
5. Ld. Counsel for the complainant has strongly argued that loan agreement Ex. CW1/1 and the cash receipt Ex. CW1/B clearly shows that a loan was taken by the accused for a sum of Rs.2,80,000/ and the cheques were given in discharge of the part payment of this liability and further their dishonour is not in dispute and AD cards of the legal notice also bear the signatures of the accused and as such the onus was on the accused to show and prove that there was no liability for the cheques in question and he has failed to do so and as such the complaint is proved beyond reasonable doubt. He has also IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI argued that notice was not replied and there is a presumption in favour of the complainant u/s 118 read with section 139 of Negotiable Instruments Act and further signatures on the alteration of the date on the cheques is also not disputed by the accused and since the accused has failed to prove that the cheques were handed over to Mr. G.S. Saluja, he is liable to be convicted.
6. Ld. Counsel for the accused, on the other hand, has argued that as per complainant, a friendly loan was given to the accused then, why the loan agreement was executed and why it carries a huge interest @ 1.4% per month since in friendly loan, no interest is charged and once it is admitted by the complainant that he is in the business of finance, the money being given to the accused without any money lending license, if at all given, is not recoverable u/s 138 of Negotiable Instruments Act. He has also stated that even if it is admitted for the sake of arguments that a loan was given in September, 2004 to the accused, why the complainant will receive the cheques of year 2002 with alteration in the date in all the 12 cheques which he has in his possession. He has also stated that no prudent person will give a friendly loan to a person not known to him on the basis of these cheques which have alteration in the date from 2002 to 2005.
7. I have perused the record. It is admitted case of the complainant as per his cross examination that he is in the business of giving finance personally as well as through chit fund company but he does not possess any money lending license. It is settled proposition of law that the offence u/s 138 of Negotiable Instruments Act is committed only when there is legally recoverable debt or liability and as per Bombay Money Lenders Act, 1946, no IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI money lender can carry on the business of money lending without a license issued for money lending. Though in the case before me, complainant has alleged that he has given a personal loan to the complainant, but the facts and circumstance does not support his case. Admittedly, accused was not known to the complainant personally, but was known through Mr. G.S. Saluja who is also a witness to the loan agreement and in these circumstances, there is unlikely of him giving a friendly loan of Rs.2,80,000/ to a person not known to him. Further, the contents of the loan agreement clearly shows that it carries an interest @ 1.4% per month which approximately comes to more than 15% per annum and in no terms can be stated to be a friendly loan. Further, loan agreement stipulates the loan is repayable in 20 monthly installments of Rs.14,000/ each alongwith interest, but is not specified by the complainant that if it was repayable in installments of Rs.14,000/ each, how he came into possession of cheques of Rs.25,000/ each.
8. Another important fact which requires consideration is the alteration in the dates of the cheques. As per accused through the record produced as his bankers, the present cheque book containing 20 leaves was issued in 2002 and out of this cheque book, only 3 cheques have been presented and cleared and 17 remaining cheques are still unused which clearly shows that 17 cheques were issued by the accused in 2002 only for which dates were subsequently altered though under signatures of the accused. It is the case of the accused that his signatures even on the date were obtained only at the time of giving the same to Mr. G.S. Saluja on his request as it was stated by Mr. G.S. Saluaj that he will change the dates of these cheques as and when required by him. It IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI is also important to note that complainant states in cross examination that date was revalidated by accused because of delayed payment, but the complainant has failed to show that when loan was given in September, 2004, why date of 2002 was put on cheques at the first place. It is also to be mentioned here that the present cheques as per complainant were given to him in October, 2005 which is the date on the cheques and in another complaint filed against the accused, the cheques bear the date of August, 2007 which means that as per complainant, the same were given to the complainant during the trial of this case. It is not clear that why the complainant received similar cheques from the accused when the present complaint was already pending and what made him believe that on presentation, three cheques of year 2007 will be cleared on presentation. This all supports the case of the accused that cheques were not handed over to the complainant as alleged in the complaint. Further, it is the case of the complainant that money was given in the presence of Mr. G.S. Saluja through whom, the accused is known to the complainant. The complainant should have examined this G.S. Saluja to show and prove that money was given to the accused in his presence. Ld. Counsel for the accused in this regard has relied upon the Judgment of Hon'ble Supreme Court in the case titled as "C. Antony Vs. K.G. Raghavan Nair" reported in IV (2006) BC 295 (SC). He has also relied upon the Judgment of Hon'ble Mumbai High Court in the case tiled as "Anil Vs. Purshottam" given in Crl. Appeal No.139/09 that the finance given without any money lending license is not recoverable u/s 138 of Negotiable Instruments Act. He has also relied upon the Judgment of Hon'ble Supreme IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI Court in the case titled as "Krishan Janardhan Bhat Vs. Dattatray G. Hegde"
reported in I (2008) CCR 199 (SC) to claim that existence of legally recoverable debt is not a presumption u/s 139 of Negotiable Instruments Act, but it merely raises a presumption in favour of the holder that the same has been issued for discharge of any debt or liability and he has argued that if the accused by record shows that the same was not given in discharge of liability or debt, the onus shifts on the complainant to prove that there was legally recoverable liability and the complainant in the facts before me has failed to do so.
9. I have perused the Judgments. Admittedly, in the case before me, accused by showing that the complainant does not have any money lending license and is a financier by profession has shown that the debt is not legally recoverable and further, two defence witnesses have shown that the cheques were issued in 2002 and also proved that there was no liability for the cheques in question and therefore, the onus was on the complainant to show either by examining independent witnesses or through his income tax record or bank statement or books of account that an amount of Rs.2,80,000/ was given in cash to the accused which he has failed to do so and as such the complainant has failed to bring the case in the four corners of offence punishable u/s 138 of Negotiable Instruments Act. In facts, the accused is acquitted in this case. He is on bail. His bail bond/surety bond is discharged. Endorsement on the documents of surety be cancelled and originals be returned, if on record. File be consigned to Record Room.
Announced in the open court (AMIT KUMAR) on 11.01.2010 ASCJ/MM(NW)
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI ROHINI COURTS DELHI