Delhi District Court
Anil Kumar Gupta vs . Sunil Kumar on 26 April, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
Anil Kumar Gupta Vs. Sunil Kumar
PS Keshav Puram
U/s 138 Negotiable Instruments Act, 1881
Date of Institution: 25.06.2015
Date of Judgment : 26.04.2018
JUDGMENT
(1) Serial number of the case :13612/2016 (2) Name of the complainant : Anil Kumar Gupta S/o.: Kailash Chand R/o.: C-3/46A, Lawrence Road Keshav Puram, Bank Colony, Delhi-110035.
(3) Name of the accused : Sunil Kumar
S/o Late Sh. Amarnath
R/o C-6/125, Lawrence Road,
Keshav Puram, Delhi-110035
(4) Offence complained of : Under Section 138 of the Negotiable
Instruments Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Reserved for judgment on : 26.04.2018
(7) Final Order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. As per the complaint, the complainant knew the accused since 2010 and the accused used to take frequent friendly loans from the complainant during 2010-2011 without interest which were returned by the accused. In 2012-2013, citing financial crisis in CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 1 of 18 business, the accused took loans many times which reached upto Rs 5,50,000/- by August 2013 and the complainant demanded that loan be repaid with interest. Upon being asked by the complainant for repayment, the accused promised to repay after one year, the loan amount of Rs 5,50,000/- with interest @ 9% per annum as provided by many banks on FDR's ie a sum of Rs 6 Lakhs which request was accepted by the complainant and he gave the accused a period of one year ie till September 2014.
2. After the lapse of one year, ie September 2014, the complainant demanded return of the amount but the accused delayed payment on one pretext or the other. In April 2015, upon repeated requests of the complainant, the accused issued three post dated cheques ie cheque bearing no. 796063 dated 24.04.2015 for Rs. 1,00,000/- and cheque bearing no. 796064 dated 15.04.2015 for Rs. 2,00,000/-, both drawn on Canara Bank, Tri Nagar Branch, Delhi (hereinafter referred to as the 'cheques in question') and cheque bearing number 077171 dated 20.04.2015 for Rs. 3,00,000/- drawn on SBI, Central Market Branch, Keshav Puram, Delhi-35
3. When the complainant presented the cheques in question for CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 2 of 18 encashment, it was returned dishonoured with the remarks "Funds Insufficient" vide memos dated 24.04.2015. Subsequent thereto, the complainant sent a demand notice dated 19.05.2015 to the accused which was returned with refusal report and despite the notice of demand being sent, no payment was made by the accused. Hence, the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
4. In the pre-summoning evidence, the complainant examined only himself and tendered his affidavit by way of evidence (Ex CW1/A) and also relied upon documents Ex CW1/1 to Ex CW1/9 ie the cheque bearing no. 796063 dated 24.04.2015 for Rs. 1,00,000/- and cheque bearing no. 796064 dated 15.04.2015 for Rs. 2,00,000/-, both drawn on Canara Bank, Tri Nagar Branch, Delhi (Ex.CW1/1 & Ex.CW1/2 respectively), bank return memos (Ex.CW1/3 & Ex.CW1/4); Notice dated 19.05.2015 (Ex CW1/5); Speed post receipt (Ex CW1/6); Courier receipt (Ex.CW1/7); tracking report (Ex CW1/8) and returned notice (Ex CW1/9). After consideration of the pre-summoning evidence, the accused Sunil Kumar was summoned for offence under Section 138 of the NI Act. CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 3 of 18
5. The accused was admitted to bail after he entered appearance and notice was served upon him for the offence under Section 138 NI Act wherein he did not plead guilty and claimed trial. In his defence as disclosed, though the accused admitted his signatures on the cheques in question, he contended that he had given them in blank in favour of complainant in the first quarter of 2012 and denied having filled the remaining contents. He further stated that the complainant had misused the cheques in question which had been given as security cheques for loan of Rs 2.75 lacs which he had already repaid to the complainant in installments and only the interest remained which he disputed as the complainant was charging interest @ 10% per month. He denied having any liability towards principal loan amount. He further stated that the complainant had filed a false case against him to extort money.
6. Upon his application under Section 145 (2) NI Act, the accused was permitted to cross-examine the complainant and the complainant was duly cross-examined at length on behalf of the accused.
7. The statement of accused was then recorded under Section 281 read with Section 313 of the Code of Criminal Procedure wherein the CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 4 of 18 entire incriminating evidence was put to the accused who reiterated his defence and also admitted his signatures on the cheque. He admitted the receipt of the legal notice while denying having any liability towards the complainant. The accused however chose not to lead any evidence in his defence.
8. Final arguments advanced by Sh. Nitin Bhardwaj, Ld counsel for complainant and by Sh. Mohd. Ali, Ld. Counsel for accused have been carefully considered alongwith the evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
i. The accused had issued the cheques on an account maintained by him/her with a bank;
ii. That the cheques had been issued for the discharge (either in whole or in part) of any debt or other liability; iii. That the cheques had been presented to the bank within the period of their validity;
iv. That the cheques were returned by the bank unpaid; v. The payee or the holder in due course of the cheques made a demand for the payment of the said amount of money by giving CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 5 of 18 a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him/her from the bank regarding the return of the cheques as unpaid; and vi. The drawer of such cheques failed to make payment of the said amount of money to the payee or the holder in due course of the cheques within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has not disputed that the cheques in question had been issued on an account maintained by him with a bank and hence the ingredient (i) stands proved as not disputed.
11.In respect of ingredient (iii) and (iv), the complainant has testified that the cheques in question ie Ex CW1/1 & Ex CW1/2 were returned dishonoured vide memo Ex CW1/3 & Ex CW1/4. During his cross-examination, no questions were put to the complainant nor any suggestions were given to him as to the cheques not having been presented to the bank within the period of their validity or as to the cheques in question not having been dishonoured upon presentation. The factum of dishonour of the cheque in question has also been admitted by the accused in his statement under Section 281 read with Section 313 of the Code of Criminal Procedure. CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 6 of 18 Hence the ingredients (iii) and (iv) also stand proved as not disputed.
12.In respect of ingredient (v), the complainant CW1 has testified that upon dishonour of the cheques in question, he sent notice dated 19.05.2015 ie Ex CW1/5 to the accused for return of the amount. As per receipts ie Ex CW1/6 and Ex CW1/7, the same was sent on 18.05.2015 and 19.05.2015 respectively ie within 30 days of dishonour of the cheques on 24.04.2015. The accused has also not disputed the factum of legal notice having been sent to him and has rather admitted receiving the same in his statement under Section 281 read with Section 313 of the Code of Criminal Procedure. Hence ingredient (v) ie the factum of issuance of legal demand notice having been sent by the complainant within 30 days of the dishonour of the cheque in question also stands proved.
13.It is not the case of the accused that he has made any payment to the complainant in respect of the cheques in question till date. Hence the non-payment of the cheque amount and consequently, ingredient (vi) also stands proved.
CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 7 of 18 DEBT OR LIABILITY
14.The accused has admitted his signatures on the cheques in question Ex CW1/1 and Ex CW1/2. With the execution of the negotiable instrument being admitted, the presumption under Section 118(a) NI Act arises as to the same being supported by a consideration. The NI Act also raises a presumption under Section 139 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.
15. However, the presumptions as raised are rebuttable and to rebut the presumption under Section 118(a) of the NI Act, if the accused is able to discharge the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 8 of 18 its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. (Reference to Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
16.To rebut the presumption under Section 139 NI Act, if the accused is able to create doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (Reference to Rangappa vs Sri Mohan, (Criminal Appeal 1020 of 2010 decided by the Hon'ble Supreme Court of India).
17.With the presumptions having been invoked in favour of the complainant, it was for the accused to disprove the case of the complainant either by leading his own evidence, or by bringing forth such facts in the cross-examination of the complainant as would render the case of complainant as improbable or doubtful. In the present case, the accused did not lead any defence evidence, yet he was able to discredit the case of the complainant through his CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 9 of 18 cross-examination. For instance, through the cross-examination of the complainant, the accused has been able to show that the complainant neither averred nor proved the basis of the calculation of the amount of Rs 5.5 Lakhs or even Rs 6.00 Lakhs in part discharge of which liability the cheque in question is stated to have been issued. The accused has also been able to bring forth sufficient material to cast a doubt as to the factum of any interest being charged on the principal amount and even the circumstances under which the cheques in question are stated to have been issued also appears to be highly improbable as brought out in the cross- examination. The same are being discussed in detail herein under.
18.It is the case of the complainant himself that he had advanced loans on various occasions in 2012-2013 to the accused which reached Rs 5.5 lakhs by August 2013. However, no statement of accounts or any other record in respect of advancement of such loan amount has been proved by the complainant and the accused has been able to elicit in cross-examination that the complainant did not make any account books. No evidence has been led by the complainant to prove the dates on which the amounts were advanced or even as to CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 10 of 18 the quantum of such 'various' amounts. No explanation has been put forth as to how the complainant calculated the amount to be Rs 5.5 Lakhs when allegedly there were multiple transactions with the accused.
19.It is duly noted that in his cross-examination, the complainant has admitted that he had received payments from the accused but when a specific question was put to him as to the quantum of the amount received from accused in 2012 and 2013, the complainant merely gave an evasive reply that he did not recall as to how much money was paid by the accused to him in 2012 or 2013 but in his entire cross-examination, he did not deny receipt of any money from the accused in such period. With the complaint as well as the evidence by way of affidavit not containing even a whisper of any amount having been returned by the accused in 2012-13, the admission by the complainant as to receipt of payment from the accused implies that material facts were not averred in the complaint and with evasive reply given by complainant in the cross-examination, no other evidence having come on record as to the quantum of loan repaid by the accused, the dates on which such payments were CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 11 of 18 made by the accused or even as to whether the amount of Rs 5.5 lakhs was after the adjustment of any payment made by the accused even more so as the complainant has himself testified during his cross-examination that he did not maintain any diary or record for recording the payments received from the accused.
20.It cannot be lost sight of that the basis of the calculation of the amount of Rs 5.5 Lakhs was within the specific knowledge of the complainant and thus it was for him to aver and prove the same, but for reasons best known to him, he neither averred the basis thereof nor proved the same either through any documentary evidence or even through cogent creditworthy oral evidence. Hence from the entire evidence as led, the factum of the basis of calculation of the amount of Rs 5.5 Lakhs remains unproved.
21.The complaint itself is also silent as to the dates on which loan was advanced by the complainant to the accused as also as to the quantum of the loan advanced in each such transaction and hence the complaint as filed is bereft of material details in respect of the legally enforceable debt/liability and on this count is liable to be dismissed. (Reliance placed on judgment of Hon'ble Delhi High CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 12 of 18 Court in Pine Product Industries And Anr. vs R.P. Gupta And Sons And Anr, II (2007) BC 20).
22.In respect of factum of interest being charged by the complainant, it is duly noted that it has been the case of the complainant that he had demanded that the loan amount of Rs 5.5.Lakh be returned with interest. In para 3 of his complaint as well as his para 4 of CW1/A, he has specifically stated that:
"on being asked by the complainant for repayment, the accused promised to repay after one year to the complainant, the above said loan amount of Rs 5,50,000/- with interest@9% p.a. which comes to Rs 6,00,000/- as provided by many banks on FDR's and the complainant accepted the accused's request and agreed to give accused a period of one year ie till September 2014".
23.Hence it is the consistent case of the complainant in para 2 and 3 of the complaint as also para 3 and 4 of evidence by way of affidavit Ex CW1/A that an interest was to be paid on the loan amount. The complainant has also re-affirmed his reliance of the para 3 of Ex CW1/A and testified that the contents of his complaint had been read over and explained to him in vernacular by his counsel. Hence, the complainant has not claimed any portion thereof to be the result of any typographical error or as to the same having been written due to any miscommunication or misunderstanding. Despite the CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 13 of 18 same, during his cross-examination, CW1 has categorically testified not just once but twice that he used to give loan to the accused without charging any interest and that he has never charged any interest from the accused on the loans given to him.
24.Hence inconsistent and contradictory testimony has come on record as to whether any interest was or was not being charged by the complainant in 2012-2013 on the alleged loans in as much as if the testimony of the complainant as to no interest having been charged by him or as to the loan having being given without interest is accepted as correct, it would imply that there was no occasion for the complainant to have demanded money with interest as testified to in para 4 of Ex CW1/A falsifying the complaint of the complainant whereas if the contents of para 4 of the Ex CW1/A is accepted as correct, then the complainant has falsified its own stand in the cross-examination having denied the factum of him having charged interest on the loan amount.
25.With the factum of interest being charged remaining doubtful, the very basis of the debt/liability gets shaken as the cheques in question are stated to have been issued towards discharge of part CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 14 of 18 liability of Rs 6 lakhs and if the complainant is unable to establish the existence of the debt/liability of Rs 6 Lakh, then the presumption as to the cheques in question having been issued in discharge thereof stands rebutted. In the present case, it is the claim of the complainant that on an amount of Rs 5.5 Lakh, an interest of 9% per annum as being given by many banks on FDR's was agreed upon for one year. However, it is noted that interest @9% per annum on principal amount of Rs 5.5 Lakh comes out to be Rs 49,500/- and not Rs 50,000/- and thus the amount due should have been Rs 5,99,500/- and not Rs 6,00,000/-. It is not the case of the complainant that the accused had agreed to pay the amount after rounding off as there is neither any averment to this effect in the complaint nor any acknowledgment or agreement in respect of the same has been placed on record by the complainant. For reasons best known to the complainant he did not lead any further evidence to prove the exact quantum of the loan amount due to be repaid.
26.The case of the complainant appears to be even more improbable as it is the case of the complainant that it was in April 2015 that the accused had issued three cheques including the cheques in question CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 15 of 18 after admitting and acknowledging his loan liability. However, during his cross-examination he has denied remembering the date, month or even year when the three cheques including the cheques in question were handed over to him by the accused. Hence he was not able to reaffirm his testimony as to the time of issuance of the cheques in his cross-examination. The complainant has also admitted in his cross-examination that when the accused had handed over the three cheques including the cheques in question, they were only signed by the accused and that he had got the details like amount, date etc through his acquaintances. If that is so and if the quantum of the amount payable was already agreed upon to be 6 lakhs at the time of the issuance of the cheques and three cheques, including the cheques in question were purportedly issued for discharge of the same, then it is difficult to accept that a reasonable prudent man would have issued not one but three blank cheques and handed it over to the complainant instead of atleast filling the amount therein. Also, there is no explanation on record as to why the complainant accepted three blank cheques including the cheques in question for the discharge of the quantified liability from CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 16 of 18 the accused as it is not the case of the complainant that the accused had ever asserted that there were lack of funds in one account or that it was due to the same that he was issuing multiple cheques, including the cheques in question.
27.All these factors when read together render the case of the complainant improbable sufficient to rebut the statutory presumption raised against the accused and it was for the complainant to prove his case as a matter of fact which he has miserably failed to do.
28.An argument was also raised by the complainant that the accused had not been able to prove his defence. However, the argument as raised is devoid of merits in view of the fact that the accused has been able to prove from the other evidence on record, the inherent improbability of existence of consideration and the complainant has miserably failed to prove his case as a matter of fact. Hence, the mere non-examination by the accused of any defence witness is not fatal to his defence.
29.Thus, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the NI Act having been rebutted by CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 17 of 18 the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sunil Kumar S/o Late Sh. Amarnath is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, he stands acquitted.
30.Accused is directed to furnish bail bond and surety bond in the sum of Rs.10,000/- under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
31.File be consigned to Record Room after due compliance.
Announced in the open court on 26.04.2018 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 18 pages and each page bears my signature.
(POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi CIS No. 13612/2016 Anil Kumar Gupta Vs. Sunil Kumar PS Keshav Puram Page 18 of 18