Delhi District Court
Poonam vs . Kartik Dhawan on 29 June, 2022
IN THE COURT OF MS. MEDHA ARYA
MM (N.I. ACT-03) SOUTH-WEST: DWARKA COURTS: NEW DELHI
CNR No.DLSW02-031896-2019
Ct. Case No.22733/2019
PS: Uttam Nagar
U/s.138 N.I. Act.
POONAM VS. KARTIK DHAWAN
Date of Institution of case: 29.06.2019
Date of which Judgment reserved: 25.06.2022
Date on which judgment pronounced: 29.06.2022
JUDGMENT
1) Unique ID no. of the case : DLSW02-031896-2019
2) Name of complainant : Poonam
W/o Sh. Naveen Sachdeva
R/o M-121, Mohan Garden
Uttam Nagar,
New Delhi-110059.
3) Name and address of accused : Kartik Dhawan
S/o Sh. Krishan Pal Dhawan,
R/o R-1/9, Vijay Vihar
Uttam Nagar,
New Delhi-110059
4) Offence complained of : Section 138 N.I. Act
5) Plea of accused : Accused pleaded not guilty and
claimed trial
6) Final Order : Acquitted for the offence punishable
U/s.138 N.I. Act
7) Date of order : 29.06.2022
Pg. 1 of 20 C.C. No.22733/2019
BRIEF REASONS FOR DECISION
"Debile fundamentum falit opus"
The complainant had set up a case that she had advanced a loan to the accused. The accused brought on record the fact that much prior to this alleged loan transaction, he had issued stop payment instructions qua the cheques, and probabalised his defence that the real transaction had taken place with the father of the complainant. With the slightest provocation, the case of the complainant fell like a pack of cards- and earned the accused a verdict of acquittal.
1. The cheques bearing numbers 845517 and 845519 both dated 18.03.2019, each amounting to Rs.1 lakh, and drawn on State Bank of India, Janakpuri branch are the 'cheques in question' in the present case. It is the case of the complainant that the cheques in question were issued in her favour by the accused in discharge of his legal liability towards repayment of the friendly loan of Rs.2 lakhs, which she had extended to the accused in November, 2018. The cheques in question were returned dishonoured upon presentation four times, on 25.03.2019, 30.03.2019, 08.04.2019 and 03.05.2019, with the remarks 'payment stopped by drawer' vide return memo dated 09.05.2019. A statutory legal demand notice dated 17.05.2019 was also duly served by the complainant upon the accused, and when the same went unheeded Pg. 2 of 20 C.C. No.22733/2019 to, the complainant was left with no option but to approach this court by way of the above captioned complaint.
2. The complainant was examined under section 200 Cr.PC, and while deposing as CW1, she placed reliance on her evidence affidavit Ex.CW1/1. The contents of the same are not being reproduced herein in the interest of brevity, the same being a reiteration of contents of the complaint. CW1 also placed reliance on the following documents:
(i) Original cheque bearing no.845519 dated 18.03.2019 in sum of Rs.1,00,000/- drawn on State Bank of India, Janakpuri Branch, Delhi, being Ex.CW1/A.
(ii) Original cheque bearing no.845517 dated 18.03.2019 in sum of Rs.1,00,000/- drawn on State Bank of India, Janakpuri Branch, Delhi, being Ex.CW1/B.
(iii) Cheque return memo dated 09.05.2019 being Ex.CW1/C,
(iv) Legal Demand Notice dated 16.05.2019 being Ex.CW1/D,
(v) Postal receipts being Ex.CW1/E.
(vi) Tracking report being Ex.CW1/F.
3. Upon consideration of the pre-summoning evidence, the accused was summoned to face the trial. When the accused entered appearance consequent to the service of summons, he was admitted to bail.
Pg. 3 of 20 C.C. No.22733/2019
4. A notice under section 251 Cr.PC was served upon the accused, vide which notice the accused was explained the substance of the allegations against him. The accused pleaded not guilty to the offence alleged against him, and claimed trial. He admitted issuing the cheques in question, and also admitted filling the amounts therein. He denied the receipt of legal service notice. When he was asked to elaborate his defence, he stated that he had arranged the loan of Rs.1,55,000/- for one of his friends Mr. Rishav Bhatia, from Mr. Radhe Shyam, and had given the two cheques in question to Mr. Radhe Shyam, who is the father of the complainant herein, as a guarantor. He further stated that the loan transaction had taken place in the year 2016, and by the year 2017, his friend had repaid the entire loan amount, but Mr Radhe Shyam refused to return the said cheques on the pretext that he is unable to locate them. The accused stated that thereafter, Mr. Radhe Shyam expired, subsequent to which he had given stop payment instructions with respect to the cheques in question to his banker.
5. When the documents of the complainant were put to him, the accused admitted the genuineness and correctness of the cheques in question Ex.CW1/A and Ex.CW1/B, as well as the cheque dishonour memos Ex.CW1/C (colly). The accused Pg. 4 of 20 C.C. No.22733/2019 then filed an application under section 145(2) N.I. Act, which was allowed vide order dated 04.02.2021. The hearing in the case was then adjourned for the recording of CE.
6. When the complainant took the witness stand as CW1, she adopted her pre-summoning evidence contained in the evidence affidavit Ex.CW1/1, and also placed reliance upon the documents already exhibited as Ex.CW1/A to Ex.CW1/F. In her cross-examination, CW1 stated that she is a housewife and is not an income tax assessee. CW1 deposed that her father used to have a business of clothes, and he expired on 26.05.2018. CW1 further testified that the loan of Rs.2 lakhs was given by her to the accused in the presence of her parents as well as her younger sister, but no document encapsulating the loan transaction was executed between the parties. CW1 volunteered that the two cheques in question, amounting to Rs.1,00,000/- each, were given to her by the accused at the same time when the loan was advanced by her to him. CW1 deposed that the loan transaction took place in the third week of November, 2018. CW1 further deposed that she is acquainted with one Rishav Bhatia. She deposed that probably there were financial transactions between the said Rishav Bhatia and her father, but she is not sure of the same. She stated that after arranging some funds from her personal savings, and borrowing the remaining amount from her husband, she had advanced the loan of Rs.2,00,000/- to the accused. She further deposed that no money was withdrawn by her or her husband from any Pg. 5 of 20 C.C. No.22733/2019 bank account before advancing the accused. After being cross-examined thus, CW1 was discharged as a witness.
7. No other witnesses were examined by the complainant, and CE was consequently closed.
8. Thereafter, the accused was examined under section 313 Cr.PC. All the incriminating evidences appearing against him at trial were put to the accused, and the accused was given the opportunity to explain the same. At this stage, the accused stated that he does not even know the complainant, and there was no question of him obtaining any loan from her. The accused stated that a loan transaction had taken place between the father of the complainant Radhe Shyam and his friend Rishav in September, 2017, and he had stood as a guarantor in the said loan transaction, in consequence of which he had given the two cheques in question as security cheques to the father of the complainant. The accused further stated that the said Rishav Bhatia repaid his loan by March, 2018 and when his cheques were not returned by the father of the complainant, he issued stop payment instructions with respect to the same. The accused stated that in fact, the father of the complainant had an outstanding liability of Rs.22,000/- towards him, and he had not approached his bereaved family, after his death to seek the recovery of the said amount on a humanitarian ground. The accused stated that he never received the statutory legal demand notice. When queried specifically, the accused submitted that he wishes to lead DE in the affirmative. Pg. 6 of 20 C.C. No.22733/2019
9. At the stage of DE, the accused filed an application under Section 315 Cr.PC. After the said application was allowed, the accused took the witness stand as DW1. Deposing as DW1, the accused stated that in October-November 2017, he had approached the father of the complainant to arrange a friendly loan of Rs.1,55,000/- for his friend Rishav Bhatia. He deposed that he had given the two cheques in question, after filling the amounts therein and signing the same, to the father of the complainant, as security cheques. DW1 further testified that his friend Rishav Bhatia repaid the entire loan in March, 2018. Thereafter, he approached the father of the complainant to seek the return of the cheques in question, but the same were not returned to him on one pretext or another. DW1 deposed that after the lapse of 2 to 3 months, the father of the complainant expired, and when he came to know of the same, he issued stop-payment instructions with respect to the cheques in question. DW1 deposed that he does not know how the cheques in question came in possession of the complainant, and that they have been misused by the complainant.
In his cross-examination, DW1 admitted that he has been residing at the address mentioned by him at the commencement of his testimony since 2005, and he was acquainted with the father of the complainant for about 3 to 4 years before his expiry. DW1 deposed in his cross-examination that he had given the cheques in question as security cheques, as his friend Rishav did not have his cheques in his possession at the time of the loan transaction. DW1 denied the suggestion that he has concocted a false story to escape his liability, and volunteered that he has a phone Pg. 7 of 20 C.C. No.22733/2019 recording in which the complainant had told him that she shall extract money from him, having his cheques in her possession. DW1 deposed that he knows Rishav since 15 years. DW1 further deposed that he had not made any police complaint regarding the phone call of the complainant and her threat to misuse the cheques in question. After being cross-examined thus, DW1 was discharged as a witness.
10. The accused next examined Nemi Chand, Deputy Manager, SBI, District Centre Branch, Janakpuri, New Delhi as DW2, who brought on record the certified copy of the entry register and the application dated 13.06.2018, being the documents Ex.DW2/A, as per which stop payment instructions with respect to the cheques in question had been issued by the accused on 13.06.2018 itself. DW2 was not cross- examined despite opportunity.
11. The accused next examined DW3 Rishav Bhatia, his friend, to establish the fact that the loan transaction had taken place between the said friend and the complainant's father. DW3 stated in his examination-in-chief that he had taken a personal loan of Rs.1,55,000/- from the father of the complainant in October, 2017, and he had repaid the loan in March, 2018. DW3 further deposed that after the repayment he requested Radhe Shyam, the father of the complainant, to return the cheques in question, but the latter refused to do so on the false pretext that the cheques have been misplaced.
Pg. 8 of 20 C.C. No.22733/2019
In his cross-examination DW3 deposed that he knows the accused since 2013. DW3 deposed that the accused had asked him to depose as a defence witness in his favour. DW3 further deposed that he does not know the complainant Poonam. He denied the suggestion that he was deposing falsely at the behest of the accused. After this limited cross-examination, DW3 was discharged as a witness.
12. No other witnesses were examined by the accused, and DE was subsequently closed.
13. Final arguments have been heard on the part of both the parties. Record perused and considered.
14. It would be apposite at this stage to briefly the discuss law applicable to the offence of dishonour of cheques. The legal position that emerges, from a reading of S.138 N.I. Act, is that before a finding of conviction for the offence punishable under Section 138 N.I. Act can be returned against the accused, it has to be established, cumulatively-
(i) that the cheque in question was issued by the accused in favour of the complainant for the discharge of a legally enforceable liability.
(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier; Pg. 9 of 20 C.C. No.22733/2019
(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheque; and
(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
This court shall now examine if the four ingredients as described in the foregoing paragraph have been satisfied in this case.
15. That the cheques in question have been drawn on the account of the accused, and were presented by the complainant within the statutory period of their validity has not been disputed by the accused. Accordingly, condition number (ii) above stands satisfied.
16. The much hackneyed defence of non-service of legal notice was taken by the accused, albeit with little sincerity. The accused admitted the veracity of his address as mentioned on the legal notice, to a specific question in this regard put to him in his cross-examination as DW1. This fact, when considered in conjunction with the testimony of CW1 that he had sent the legal notice by speed post, after correctly addressing it to the accused, leads this court to the conclusion that by virtue of Section 27 of General Clauses Act, a presumption can be drawn that the legal notice was duly served upon the accused. Section 27 of the General Clauses Act provides that the service of a post can be deemed to be affected, by properly addressing, prepaying and Pg. 10 of 20 C.C. No.22733/2019 posting by registered post, the latter containing the document. No evidence has been brought on record by the accused to rebut such presumption.
Further, even if it is believed that legal notice was not received by the accused, it is apparent from the record that even after he received the summons, the accused had sufficient opportunity to pay the amount of cheque in question to the complainant, but didn't. The requirement of service of legal notice has been thus substantially complied with. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, wherein it has been held as follows :
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper Pg. 11 of 20 C.C. No.22733/2019 service of notice as required under Section 138 N.I. Act by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [(1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of the Act."
Accordingly, conditions no.(iii) and (iv) above also stand satisfied, as it is a matter of record that the accused had due notice of pendency of the present complaint, despite which he failed to make the payment of cheque in question to the complainant.
17. The formalistic hurdles out of the way, it now remains to be examined if the cheque in question was issued by the accused in favour of the complainant in discharge of a legally enforceable liability.
Pg. 12 of 20 C.C. No.22733/2019
18. At this stage, regard has to be given to Section 139 N.I. Act, which provides that if the maker of the cheque admits his signatures on the same, a presumption shall arise that the cheque in question has been received by the holder in discharge of any debt or liability. Section 118 of the same enactment is also to be referred here, which provides for a presumption that every negotiable instrument, in the hand of a holder in due course, has been made for consideration. In the case at hand, the accused has admitted his signatures on the cheque in question, though he has disputed the nature of transaction in which the cheque was issued by him. Therefore, a presumption u/s.139/118 N.I. Act can be raised against the accused.
This is so, even though the accused has taken the defence that he had not filled the details on the cheque in question. It is a well settled position of law that where a cheque has been given by the drawer thereof to another without filling the particulars thereon, the holder in due course of the cheque is presumed to have been given a authority to complete the instrument. Section 20 of the Negotiable Instrument Act assumes relevance here, which provides that if the person signs and delivers a paper stamped in accordance with law and 'either wholly blank or having written thereon an incomplete negotiable instrument', such person thereby gives prima facie authority to the holder thereof to complete the instrument. Similarly, Section 49 of the said enactment also permits the holder of the negotiable instrument, endorsed in blank, to fill up the said instrument by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque. It makes it clear that by doing that the holder does not thereby incur the responsibility of Pg. 13 of 20 C.C. No.22733/2019 an endorser. Section 125 N. I. Act also permits the holder of the uncrossed cheque to cross it. Collective reading of these provisions indicate that under the said statute, it is possible for the drawer of the cheque to give a blank cheque to another, expressly or impliedly authorising him to fill-up the instrument. It has been held by the Hon'ble High Court of Delhi in Ravi Chopra Vs. State & Anr. 2008 (2) JCC (NI) 169 that as long as a cheque has been signed by the drawer, the fact that the ink in which the name and figure was written or the date was filled up is different of the ink of the signatures is not a material alteration for the purpose of section 87 N. I. Act. In view of the legal position described above, as the accused has admitted the foundational fact of affixing his signature on the cheques in question the presumption u/s 139/118 N. I. Act can be duly raised against him.
19. It is trite that the presumption that has been raised against the accused is rebuttable in nature. The effect of the presumption is that the journey of the trial in this case, after a presumption is raised against the accused, shall begin from the vantage point of the accused who is required to prove that the cheque in question was not issued by him in favour of the complainant towards the discharge of any legally enforceable liability. To achieve this purpose, the accused can either take the witness stand and prove his defence in the affirmative, on a scale of preponderance of probabilities or he can show sufficient gaps in the case of the complainant, so as to create a reasonable doubt in the mind of the court regarding the version of the complainant.
Pg. 14 of 20 C.C. No.22733/2019
20. Against the version of the complainant that the cheques in question were issued in her favour by the accused towards repayment of the friendly loan, the competing version set up by the accused was that a loan transaction had actually taken place between the complainant's father and his friend, and the cheques in question were issued by him only in the capacity of a guarantor. The defence of the accused is also that the said loan amount was subsequently repaid, consequent to which stop payment instructions were issued by him with respect to the cheques in question.
21. Now, bare perusal of one of the cheques in question, Ex.CW1/A, in exercise of powers under section 73 of the Indian Evidence Act 1872, reveals that the handwriting in which the amount on the cheque in question and the signatures thereon have been appended, differs from the handwriting in which the remaining particulars on the cheques in question have been filled. This fact lays the foundation of the case of accused.
22. The accused deposed that the loan transaction between his friend Rishav Bhatia and the complainant's father had taken place in October 2017, and the cheques in question were issued by him in favour of the father of the complainant at that time. He further deposed as DW1 that the loan amount was subsequently repaid in March, 2018, and as the cheques in question were not returned to him, he issued stop payment instructions with regard to the same. It is a matter of record that the cause of the Pg. 15 of 20 C.C. No.22733/2019 dishonour of the cheques in question is also the stop payment instructions given by the accused. It is further established by the testimony of DW2 that the stop payment instructions were issued qua the cheques in question on 13.06.2018. Now, this fact has to be juxtaposed with the specific testimony of CW1 that the loan transaction had taken place in November, 2018. Not only did the complainant depose in this regard in her examination-in-chief, she stuck to this version even in her cross-examination. That is to say, it is not merely a case that the complainant had once erroneously mentioned the date of the loan transaction, but in fact stuck to her version even later on. However, the accused could successfully perforate this version of the complainant by bringing on record the fact that he had issued stop payment instructions with respect to the cheques in question much prior to the alleged loan transaction. By adducing evidence on record to this effect, the accused raised a doubt as to the veracity of the case of the complainant, for surely there could have been no need for the accused to issue stop payment instructions with respect to the cheques in question in June, 2018, if the loan transaction, as alleged by the complainant, had indeed taken place only in November, 2018.
23. Now, the defence raised by the accused gains momentum also in view of testimony of CW1 herself. The complainant deposed that perhaps there were financial transactions between her father and Rishav Bhatia. The testimony also indicates that the defence raised by the accused is not baseless. The testimony of CW-1 to the effect that her father expired in May, 2018 also supports the version of the accused that he Pg. 16 of 20 C.C. No.22733/2019 issued stop payment instructions qua the cheques in question post the death of complainant's father.
24. To substantiate his version that the loan transaction had actually taken place between complainant's father and his friend, the accused also called his friend Rishav Bhatia as DW3. DW3 deposed in his examination-in-chief that the loan transaction for the amount of Rs.1,55,000/- had taken place between him and the complainant's father, and that he had subsequently repaid the loan amount. DW3 also corroborated the version of the accused by stating that the accused had given the cheques in question as security cheques in the capacity of a guarantor with respect to the said loan transaction. In his cross-examination, DW3 was only subjected to one substantive question. That is, the complainant became satisfied with the answer of DW3 that he had come to the court to depose at the behest of the accused. Merely this fact, however, does not prove that the witness was an interested witness, and that he was deposing falsely. The court has to remain cognizant of the fact that being a lay man, DW3 deposed candidly when he was asked if he had come to the court at the behest of the accused. This testimony cannot be deemed to be an admission on his part of his deposing falsely. Merely because the witness was not a summoned witness, and had come to the court to depose at the instance of the accused, cannot lead this court to the conclusion that he had deliberately committed perjury. He had deposed on oath that he had obtained a sum of Rs.1,55,000/- from the complainant's father, and that he had subsequently repaid the loan. Not even a single question was put to him as to the date, Pg. 17 of 20 C.C. No.22733/2019 time and place on which he had obtained the loan, the mode in which the repayment was done, or the manner in which the repayment had been made-that is, if he had repaid the loan in a single instalment or in tranches. The complainant did not even attempt to demolish his testimony, and therefore can be deemed to have accepted the version of DW3. This gives further credibility to case of the accused.
25. The accused had taken the defence that he had stood as a guarantor in the loan transaction between his friend and the complainant's father. The accused did not rely merely on storytelling, but substantiated his testimony by calling on record DW2 to establish that stop payment instructions had been issued qua the cheques in question much prior to the alleged loan transaction, and also examined his friend to establish his defence. Besides, deposing as DW1, he also testified that the complainant had threatened him about misusing the cheques in question. Even this part of his testimony was not successfully discredited by the complainant. No questions were asked as to why such a recording has not been produced on the record, in which the complainant had allegedly extended threats? No question as to the day or time of such conversation were also put to the accused. Merely putting a question to him that if he had filed a police complaint with respect to this conversation does not suffice. The accused substantiated sufficiently, with material particulars and evidences, his version that the loan transaction actually took place between his friend and the complainant's father. It is to be remembered that the accused is only required to probabalise a defence version. He is not required to prove his defence beyond all reasonable doubt. On a scale of Pg. 18 of 20 C.C. No.22733/2019 preponderance of probabilities, the material brought forth on the record by the accused was sufficient to establish that a loan transaction had probably taken place between the complainant's father and his friend. With this, the accused could dispel the burden of proof placed upon him by virtue of Section 139 N. I. Act.
26. Once the burden of proof shifted to the complainant, it was then required of her to prove her case beyond all reasonable doubt. In the considered opinion of this court, the complainant has failed to do so. The complainant stated that she had advanced a loan of Rs.2 lakhs to the accused. However, she could not establish her financial capacity to so advance the loan. She admitted in her cross-examination that she is a housewife. When queried specifically as to the source of the funds, she gave a vague statement that she had some money lying with her in her personal savings, and that she borrowed the remaining amount from her husband. She did not attempt a sufficient explanation of how much money she had borrowed from her husband, and how much money was lying with her in her personal savings. She did not depose as to the profession or the financial capacity of her husband to help her extend a loan to the accused. She did not even examine her husband as a witness to establish the facts of the loan transaction. Further, CW1 had deposed in her cross-examination that she had given the loan to the accused in the presence of a younger sister and her parents. She could have examined her mother and her younger sister to establish this part of her testimony. But not to be. CW1 further admitted that there is no document in her possession encapsulating the loan transaction. The complainant could not explain why Pg. 19 of 20 C.C. No.22733/2019 a huge sum of Rs.2 lakhs was advanced by her to the accused, in cash, without first securing the loan transaction by way of a document. She could not offer any explanation, cogent or otherwise, as to what occasion the accused had of issuing stop payment instructions with respect to the cheques in question in June, 2018, if the loan transaction between them took place in November, 2018. All in all, the complainant failed to establish beyond reasonable doubt, the existence of a loan transaction between her and the accused, as alleged by her, and that the cheques in question were issued in her favour by the accused in discharge of this liability.
27. Accordingly, the accused Kartik Dhawan S/o Krishan Pal Dhawan is acquitted of the offence punishable under section 138 N. I. Act with respect to the cheques in question.
File be consigned to record room after compliance with Section 437A CrPC. Digitally signed by MEDHA MEDHA ARYA Date:
ARYA 2022.07.01
14:55:36
+0530
Announced in open Court on (MEDHA ARYA)
29th day of June, 2022 M.M. (N.I. Act-03), South-West,
(20 pages) Dwarka Courts, New Delhi
Pg. 20 of 20 C.C. No.22733/2019