Delhi District Court
Surender Singh vs Sunny Chawla on 17 November, 2020
IN THE COURT OF SHRI GAGANDEEP JINDAL
MM09: SOUTHEAST DISTRICT, SAKET COURTS COMPLEX:N.D.
Surender Singh Vs Sunny Chawla
U/s 138 Negotiable Instruments Act, 1881
1. CIS Number : 611491/2016
2. Name of the complainant : Surender Singh
S/o Sh. Jawahar Singh
R/o H.No.17/D, Block C
Molarband Extension, Badarpur
New Delhi110044.
3. Name of the accused, : Sunny Chawla
parentage & residential S/o Sh. Inder Kumar Chawla
address R/o C45 Jhilmil Colony
Delhi110095
4. Offence complained of or : U/s 138 of Negotiable Instruments
proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 17.11.2020
Date of Institution : 28.05.2016
Date of Reserving Judgment/Order : 09.11.2020
Date of Pronouncement of Judgment/Order : 17.11.2020
Surender Singh Vs Sunny Chawla Page 1 of 7
JUDGMENT
1 By way of the present Judgment, I shall dispose off the present complaint filed by Sh. Surender Singh (hereinafter referred to as 'complainant') against Sunny Chawla (hereinafter referred to as 'accused company') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short). 2 It is submitted that by the complainant in the complaint that he gave a friendly loan of Rs.10 lacs to the accused on 03.06.2015 in the presence of one person namely Sh. Rajinder Singh with the promise that accused will return the same on or before 25.12.2014. However, accused failed to fulfill his promise. Thereafter, accused issued the cheque bearing number 698894 dated 21.07.2015 of Rs.10,00,000/ drawn on Punjab National Bank, Vivek Vihar, in discharge of his legal liability. The complainant deposited the said cheques through its banker but those were returned unpaid due to the reason "Kindly contact drawer drawee bank" vide returning memo dated 07.08.2015. Thereafter, complainant got issued legal demand notice dated 03.03.2016 but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
3 Notice u/s 251 Cr.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
4 To prove its case, the complainant has examined himself as CW1 Sh. Surender Singh, who filed his evidence by way of affidavit Ex.CW1/1 and has relied upon the following documents: 4.1 Original cheque no. 698894 dated 21.07.2015 Ex.CW1/A; 4.2 Cheque returning memos Ex.CW1/B and Ex.CW1/C;
4.3 Copy of legal demand notice dated 03.03.2016 Ex.CW1/D;
Surender Singh Vs Sunny Chawla Page 2 of 74.4 Original receipts of speed post Ex.CW1/E and Ex.CW1/F; 4.5 Tracking report Ex.CW1/G and Ex.CW1/H;
4.6 Legal demand notice dated 21.04.2016 Ex.CW1/I and postal receipt Ex.CW1/J and tracking report Ex.CW1/K. 5 During his crossexamination, CW1 has relied upon ITR for the assessment year 20112012, 20132014, 20142015, 20152016 as Ex.CW1/D1 and coy of GPA, agreement to sell and purchase, affidavit, receipt, possession letter, deed of Will executed by Smt. Vimlesh and Sh. Jawahar singh in favour of Sh. Pankaj Gupta as Ex.CW1/D2.
6 Accused has also examined Sh. Rajender Singh as CW2.
7 In the statement of accused recorded u/s 313 Cr.P.C., all the incriminating evidence was put to the accused to which he has stated that he issued the blank signed cheque to Raju Bansal with regard to monetary transaction of Rs.50,000/ and not issued the impugned to the complainant. He has further submitted that he gave instruction to his banker to destroy the said cheque when Raju Bansal did not return the cheque to him. He has further submitted that he did not receive any legal demand notice.
8 Accused has examined himself u/s 315 Cr.PC as DW1 and Sh. Gulshan Kumar Chawla as DW2 and Ms. Nupur Yadav, Branch Manager Punjab National Bank, Vivek Vihar as DW3. DW3 has proved copy of cheque book requisition slip Ex.DW3/A, copy of cheque book request form Ex.DW3/B, and copy of letter dated 30.01.2020 Ex.DW3/C, details of the cheques destroyed at request of accused Ex.DW3/D. 9 Final arguments on behalf of accused heard through Cisco Webex Software. The complainant has failed to address the arguments despite numerous opportunities.
10 Ld. counsel for the accused argued that the complainant misused the Surender Singh Vs Sunny Chawla Page 3 of 7 cheque in question in connivance with Raju Bansal @ Rajinder Singh. Complainant failed to produce any document to show his financial capacity to grant loan of Rs.10 lacs. No document to prove the loan transaction has been produced. Accused is unmarried but complainant deposed that accused has two children. Complainant deposed that the loan amount was paid to the accused in denomination of Rs.500/ and Rs.2000/ currency notes whereas the currency notes of Rs.2000/ were not in existence in the year 2014 when the alleged loan was given. Complainant failed to prove the liability of accused against the cheque in question. Therefore, accused may be acquitted. 11 In the Judgment of the case titled as "Kulvinder Singh Vs. Kafeel Ahmed", 2014 (2) JCC (NI) 100, it was so observed that:
"The case of the petitioner is nutshell is that he had been approached by the respondent and he had advanced a loan of Rs.9,30,000/ in the first instance. If such a huge amount of money is advanced as a loan to the respondent, the petitioner ought to have shown to the court concerned as to the source from where he had generated such a huge amount. In his examination/cross examination, he stated that he had sold his machinery but he failed to produce any record to that effect. He has not reflected the loan advanced to the respondent in his income tax return not is he able to tell to the court the Ward in which the income tax return is filed. The learned Magistrate has rightly placed reliance on the provisions of Section 269 SS of Income Tax Act where in it is specifically laid down that if a loan is advanced which is more than Rs.20,000/, it has to be by way of writing reflected in the books of account but nothing of that sort has been done in the instant case. Obviously, this clearly creates a doubt regarding the truthfulness of the stand taken by the petitioner that he had advanced a loan of Rs.9,30,000/ to the respondent."
12 In the Judgment of the case tilted as "G. Pankajakshmi Amma and Ors.
Vs. Mathai Mathew", (2004) 12 SCC 83, it was so observed that: "10. There is any reason also why the impugned Judgment cannot be upheld. According to the 1st respondent these transactions were to be Surender Singh Vs Sunny Chawla Page 4 of 7 unaccounted transactions. According to the 1st respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transaction, the court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed."
13 In the Judgment in the case titled as "Sanjay Mishra Vs. Kanishka Kappor Alias Nikki", 2009Laws (Bom)29, it was so observed that: "If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months, the failure to disclose the amount in income tax return or books of accounts of the complainant may be sufficient to rebut the presumption under section 139 of the said Act. 14 In the present case, the complainant has alleged that he has given a friendly loan of Rs.10 lacs to the accused as accused is known to him. However, no loan document has been produced by the complainant to prove the said loan transaction.
15 Accused has denied the transaction of any such loan of Rs.10 lacs from complainant and disputed the financial capacity of complainant to give huge amount of Rs.10 lacs. Complainant deposed that he had arranged the loan amount from cash lying at his home as his father had sold a property in the name of his mother for Rs.42 lacs in the year 2013. The copy of documents to prove the said property transaction is Ex.CW1/D2. According to documents Ex.CW1/D2 the parents of complainant had sold the property for a sum of Rs.12 lacs to someone else in January 2013 whereas the present loan transaction was allegedly executed in June 2014. Complainant did not examine his parents to prove that they had given the sale consideration to their son to grant loan to the accused.
16 Furthermore, the complainant had deposed that the loan amount was paid Surender Singh Vs Sunny Chawla Page 5 of 7 to the accused in denomination of currency notes of Rs.500/ and Rs.2000/ whereas the currency notes of Rs.2000/ were not in existence in the year 2014 when the alleged loan amount was given in June 2014. this fact had dented the creditworthiness of CW1/complainant.
17 Moreover, under the provisions of section 269ss Income Tax Act, a loan of more than Rs. 20,000/ cannot be given in cash. The complainant is doing business of construction and property then he must be more diligent while granting loan to the accused without interest without execution of any documents. If there was sufficient funds were available with the complainant then why they did not give the loan amount to the accused through cheque or by bank transaction. All these facts and circumstances belied the story of complainant. The story of the complainant can not be relied upon especially in the absence of any documentary evidence.
18 Moreover, the said amount was unaccounted money and it was not a legally recoverable debt. It was held in case tilted as G. Pankajakshi Amma case (supra) that if these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. Hence, complainant has miserably failed to prove the fact that there is a legally recoverable debt payable by the accused.
19 Accused has examined himself as a witness u/s 315 CrPC. His defence remains consistent throughout the entire trial that the cheque in question was issued to Raju Bansal @ Rajinder Singh in blank. The said cheque was misused by the complainant in connivance with Raju Bansal @ Rajinder Singh. The accused has stopped the payment of the said cheque by issuing the instructions to his banker. As per the certificate Ex.DW3/C issued by Punjab National Bank, the cheque number 698894 i.e. cheque in question was destroyed in the system on 28.01.2014. This fact belied the story of complainant that accused had issued the Surender Singh Vs Sunny Chawla Page 6 of 7 cheque in question to him on 21.07.2015.
20 The case of the complainant has been very inconsistent and the complainant has floundered, as the crossexamination progressed. Complainant failed to produce the documents to prove loan transaction Rs.10 lacs. Complainant is not reliable witness as discussed above. This has made way for the accused to prove the non existence of consideration; or atleast that it was improbable or doubtful. The absence of any independent cogent/documentary evidence for corroboration of complainant's testimony compelled to believe the defence raised by the accused probable that he did not take any loan from complainant.
21 Conclusion:
In view of the aforesaid findings, the court is of the considered opinion that accused is able to adduce a probable defence in his favour and successfully rebut the presumption u/s 139 of Negotiable Instruments Act. The onus to prove the legal liability of the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused Sunny Chawla is acquitted for the offence u/s 138 N.I. Act. Digitally signed by GAGANDEEP GAGANDEEP JINDAL JINDAL Date: 2020.11.17 Announced in the open court 16:08:47 +0530 on 17.11.2020 (Gagandeep Jindal) MM09/South East District/New Delhi Surender Singh Vs Sunny Chawla Page 7 of 7