Delhi District Court
Mr. Balraj Singh vs Mr. Megh Singh on 12 January, 2011
IN THE COURT OF SUMIT DASS : METROPOLITAN
MAGISTRATE - 01 : DWARKA COURT : DELHI
Mr. Balraj Singh v/s Mr. Megh Singh
Complaint Case: 1147/08
U/s: 138 N.I.Act.
PS: Dwarka
Date on which case was instituted : 29/09/2006
Date on which Judgment was reserved : 12/01/2011
Date on which Judgment was pronounced : 12/01/2011
JUDGMENT
a) Sl. No. of the case : 1147/08
b) Date of commission of offence : 21/2/2006 and 10/03/2006
c) Name of the complainant : Mr. Balraj Singh s/o Sh.
Sudh Singh r/o: H.No. 266,
CGHS Limited, Plot No. 34,
Sector 4, Dwarka, New
Delhi
d) Name of the accused, parentage : Megh Singh s/o Sh. Madho
Singh r/o: A1/306, Gali no.
6, Madhu Vihar, New Delhi
e) Offence complained of or proved : U/s: 138 of Negotiable
Instruments Act
f) Plea of the accused : Pleaded not guilty
Comp. Case: 1147/08 Page 1 of 11
g) Final Order : ACQUITTED
h) Date of such Order : 12/01/2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
1. The complainant had filed the present complaint case alleging that he and accused were having good friendly relations and on December 2005 the accused had asked for a friendly loan of Rs. 1,65,000/ which he had extended to him for a period of two months commencing from 20/12/2005. In discharge thereof the complainant was handed over two cheques bearing no. 022911 dated 21/02/2006 for Rs. 1 lakhs and another cheque no. 022917 dated 10/03/2006 for Rs. 65,000/ both drawn on Union Bank of India, Dwarka Branch, Delhi. The complainant presented the said cheques which were returned unpaid vide returning memo dated 02/08/2006 with remarks "insufficient funds". A legal notice dated 14/08/2006 was despatched by registered AD post as well as UPC, however, inspite thereof the accused did not comply with the mandate of legal notice necessitating the filing of present complaint on 28/09/2006.
2. Presummoning complainant evidence was led. Accused was summoned and he obtained bail. Notice under Section 138 N.I.Act was framed against the accused. Accused opted to face trial. Comp. Case: 1147/08 Page 2 of 11
3. On behalf of the complainant, complainant had himself stepped into the witness box and evidence was led by way of affidavit which is Ex. CW1/1, documents were proved i.e., the cheques in question Ex. CW1/A and Ex. CW1/B, dishonour memo is Ex. CW1/C and Ex. CW1/D, legal notice Ex. CW1/E and postal receipts and UPC is Ex. CW1/F and Ex. CW1/G and the complaint was exhibited as Ex. CW1/H.
4. The accused had cross examined the complainant. Complainant admitted that no agreement/receipt was executed between him and accused and amount was without any interest. A brief cross examination was conducted, therefore, I have no hesitation in reproducing the contents.
"I know Megh Singh - accused as I had learnt driving from him and he was a driving tutor at that time. I do not know the name of wife and children of accused. I am Sr. Supdt., in Airport Authority of India. I am earning about Rs. 72,000/ per month. I am income tax assessee. I had not mentioned about the loan given to the accused in my ITR of the year 20052006. I had not received any acknowledgment regarding the legal notice sent by me to the accused. At the time of advancing money, no other person was present. At the time when the cheques were Comp. Case: 1147/08 Page 3 of 11 dishonoured, I had approached the accused and went to his house at Madhu Vihar. Accused sought time for 12 months for making the payment. The signatures at pt. A on Ex. CW1/DX i.e., panchnama is not of mine."
Further, the complainant denied the case of the accused that he and accused were jointly dealing with sale and purchase of the vehicle and were having an office at H.L.Plaza, Sector - 12, Dwarka, Delhi. He further denied that he had misused the blank cheques. He denied that no agreement was executed in the presence of Sh. G.P.Singh, Sh. Shiv Kumar and Sh. Shiv Mangal Yadav. He further denied that any agreement Ex. CW1/DX was executed and thereupon in compliance thereof the vehicle bearing no. DL 6CA 8261 (TATA SUMO) was delivered to him. The complaint evidence was closed as such.
5. Statement of accused under Section 281 CrPC was recorded. Accused stated that he and complainant used to do the business of sale and purchase of cars in the name of Bhaduria Car Bazaar having office at H.L.Plaza, Sector - 12, Dwarka, Delhi, however, the complainant used to take a share out of the commission earned by him in sale and purchase of the vehicle and he also used to take interest on money used in the said business. The joint business Comp. Case: 1147/08 Page 4 of 11 commenced from early 2005 and operated till the end of 2005. They had a joint settlement of accounts in front of four persons, whereby he had agreed to pay a sum of Rs. 65,000/ to the complainant. Further in lieu of the said amount, the complainant had asked him to give his TATA Sumo vehicle no. DL 6CA 8261 which was fetching one Lac at that time. However, the complainant had stated that he would be taking the car as a security alone and he should be paying him a sum of Rs. 65,000/ in cash, accordingly he had issued a cheque of Rs. 65,000/ to him. He opted to lead defence evidence.
6. On behalf of accused, DW1 Sh. Gajender Pratap Singh and DW2 Sh. Shiv Kumar were examined. Both have deposed that they were doing the business of sale and purchase of vehicle at Sector 12 Dwarka, the property owned by the complainant and certain disputes had arisen between the parties whereupon settlement was arrived at witnessed by them alongwith other members and settlement was in writing which was Ex. CW1/D and their signatures were also there.
7. DE was closed.
8. An application for verifying the signatures of the complainant on Ex. Comp. Case: 1147/08 Page 5 of 11 CW1/DX1 and Ex. CW1/DX2 was moved by the accused which was dismissed vide order dated 01/12/2010.
9. Heard either side.
10. Learned counsel for the accused Sh. Y.R.Sharma, has argued that cheques in questions are numbered 022911 and 022917, the difference in the number clearly suggests that these cheques were not given at one go or at one point of time. He has further argued that punchnama Ex. CW1/DX has been proved. The only liability exists was of Rs. 65,000/ and it was not a friendly loan but was a business transaction between the complainant and the accused.
11. On the other hand learned counsel Sh. Dhirender Mathur had argued that the ingredients of the offence have been made out and no plausible defence has been put forward by the accused tendering him liable to be convicted.
12. The law in this regard has been clearly stated in judgment titled as Hiten. P.Dalal v/s Bratendranath Banerjee, 2001 AIR SCW 3861 where it was held that "It is obligatory on the court to raise the presumption in every case where the factual basis for the raising of the presumption had been established. Such a presumption is a presumption of Comp. Case: 1147/08 Page 6 of 11 law, as distinguishable from a presumption of fact which describes provisions by which the court 'may presume' a certain state of affairs. No discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person again whom the presumption is drawn from rebutting it and proving the contrary."
(i) Further there is a presumption which is carried upon the dishonour memo in view of Section 146 N.I.Act. Even otherwise the accused has not denied the dishonournment of the cheque or the reason thereon or led any evidence to the contrary of the same.
(ii) The issuance of cheque is otherwise not disputed in a sense that the accused had admitted that he had given the cheque in question and same bears his signatures.
15. The only point in dispute is whether there exists the subsisting liability upon the date of issuance of cheque in question. The cheque in question Ex. CW1/A and Ex. CW1/B are of Rs. 1,00,000/ and Rs. 65,000/ and same are dated 21/02/2006 and 10/03/2006.
16. The case of the complainant is of a friendly loan whereas the case of the accused is that it was a business transaction. The dispute had arisen between them and they were resolved by a punchnama Comp. Case: 1147/08 Page 7 of 11 Ex. CW1/DX, the delivery of Sumo Car was given as security. The complainant has disputed his signatures on both punchnama and delivery receipts. It is stated to be a forged receipt.
17. The case of the complainant presupposes that both cheques were given at one go. In one cheque the name of Balraj Singh is written in Hindi whereas in the second cheque it is written in English alongwith "B.R.Singh". Both cheques were issued at one go, in one cheque the name is written as Balraj Singh in Hindi whereas in other cheque the name is written in English and it is clarified by writing as (B.R.Singh). I may note that punchnama is dated 23/02/2006 and the second cheque Ex. CW1/D is dated 10/03/2006 for Rs. 65,000/. Even in the punchnama reference of Balraj Singh is as 'B.R.Singh'. Thus it is relatable from the punchnama that said cheque was issued in consequence or in furtherance of upon execution of punchnama. If both cheques would have been given to the complainant he being government employee/ literate enough would not have put the brackets in the cheque and stated as 'B.R.Singh'. The reason is obvious as his full name was also written in the cheque. Thus, to this extent a reasonable doubt is created as to whether the cheque in question were given at any point of time.
Comp. Case: 1147/08 Page 8 of 11
18. The case of the accused is that cheque of Rs. 65,000/ was issued in terms of Ex. CW1/DX i.e., punchnama and liability was admitted and noted in terms thereto. He has also examined two DWs in support of punchnama. Both DWs have averred in one voice and had proved the document/identified the signatures on the document. The accused in his statement under Section 281 CrPC alongwith DWs have deposed that in the house of one Shiv Mangal Pradhan the punchnama was written by the brother in law of complainant. The evidence of said DWs thus lends credence to the execution of punchnama whereas the version of the accused is that he had not signed on the agreement in question. Mere denial is not sufficient. The signatures of Balraj Singh on the punchnama as well as Ex. CW1/DX1 upon comparison under Section 73 Evidence Act appears to be of the same person.
19. Even dehors the aforesaid the complainant had stated that he is a government employee and he had given a friendly loan, however, same was not reflected in his income tax returns. In the absence of there being any other proof of income naturally some amount would have been withdrawn from the bank account but still the source of money was not disclosed though he is a Senior Superintendent in Airport Authority of India and earning Rs. 72,000/ per month. At least some amount should have been reflected from his bank Comp. Case: 1147/08 Page 9 of 11 account. There is no receipt/agreement pertaining to the complainant also having given the loan. The relation with the accused is that he was his driving instructor. It also belies common logic such a transaction would have been done in the manner as so projected i.e., in cash without there being any receipt i.e., pertaining to the payment terms and that too with a driving tutor.
20. Further it is not incumbent upon the accused to come into witness box as the case of the accused is consistent as so stated in his statement under Section 281 CrPC as he was doing business with the complainant and a settlement of account was arrived at whereby a sum of Rs. 65,000/ was due and payable and for which the TATA SUMO vehicle was given to the complainant.
21. Learned counsel for the accused has also relied upon the judgment titled as M/s Alliance Infrastructure Project Pvt. Ltd., & Ors v/s Vinay Mittal and M/s Alliance Infrastructure Project Pvt. Ltd. & Anr v/s Sanjeev Kapur, 2010 (1) JCC (NI) 98 wherein the Hon'ble High Court had observed that the legal notice is an integral part of cause of action and should be with regard to the amount due and payable. It is further stated that notice of demand which requires the drawer of the cheque to make payment of the whole of the cheque amount despite receiving a substantial amount against that Comp. Case: 1147/08 Page 10 of 11 very cheque much before issue of notice cannot be said to be a valid and legal notice.
22. The said citation clearly and squarely applicable to the case in hand. The agreement Ex. CW1/DX clearly spells out that apart from the cheque of Rs. 65,000/ other cheque that B.R.Singh has would be invalid. Thus as on date of the agreement the liability was Rs. 65,000/ thus the accused was liable to pay Rs. 65,000/, however, no legal notice for the said amount was sent.
23. Considering the aforesaid discussion, the complainant has failed to prove his case against the accused beyond shadow of doubt, accordingly accused Megh Singh is acquitted for offence u/s 138 of N.I.Act. Bail bond of accused stands cancelled and surety discharged. File be consigned to record room. ANNOUNCED IN THE OPEN COURT DATED: 12/01/2011 (SUMIT DASS) METROPOLITAN MAGISTRATE - 01 DWARKA COURTS : DELHI Comp. Case: 1147/08 Page 11 of 11