Delhi District Court
Chatar Singh vs . Raj Kumar 1/1 on 1 September, 2015
1
IN THE HON'BLE COURT OF SH.CHANDER MOHAN, MM-02 NI ACT
(SED), SAKET COURT, NEW DELHI.
Complaint Case No. 3472/14
UNIQUE ID CASE NO:-02406R0546912009
In the matter of :
Chatar Singh
S/o Sh. Gajraj Singh
R/o Isalamabad, Kalda
Gautam Budh Nagar
U.P-201009 ...Complainant
Versus
Raj Kumar
S/o Sh. Ram Kishan Nirwan
R/o CS-91/181, Mahela Mohalla
Madanpur Khadar
( Near Delhi Jal Board Office)
Delhi-110076 ...Accused
Date of Institution : 01.04.2009
Date of Reserving Judgment / Order : 28.08.2015
Date of Pronouncement of Judgment/ Order : 01.09.2015
CASE OF THE COMPLAINANT
1.It is case of the complainant that the accused took a friendly loan of Rs. 50,000/- from him and after that he issued a cheque of Rs. 50,000/- bearing no. 430411 dated 12.10.2008 drawn on ICICI Bank Ltd., New Friends Colony, New Delhi in favour of the complainant. The complainant deposited the said cheque for its encashment with its banker i.e Punjab National Bank, Chhapraula, Gautam Budh CC No. 3472/14 Chatar Singh Vs. Raj Kumar 1/1 2 Nagar, Ghaziabad, U.P which was forwarded to the bankers of the accused for its collection but it was dishonoured by its bankers with remarks " Account Closed" vide memo dated 29.01.2009. Legal notice dated 16.02.2009 issued by the complainant through registered AD/UPC has failed to secure the payment of the cheque amount. Hence, complainant has filed the present case.
DEFENCE OF THE ACCUSED
2. Accused was summoned by my Ld. Predecessor U/s 138 NI Act vide order dated 16.09.2009 and he was put to notice U/s 251 Cr.P.C on 01.02.2012 to which he pleaded not guilty and claimed trial by disclosing the following defence.
" The cheque in question bears my signatures and other contents of the cheque were also filled by me. The cheque in question was issued in advance as security cheque and therefore, I owe no legal liability towards the complainant. The complainant has filed a totally false case against me. "
BREIF REASONS FOR THE JUDGMENT
3. I have heard both the parties and traveled through the record with their able assistance.
4. Before further adverting to the facts of the case, it is convenient for the sake of clarity to reproduce section 118 (a) and 139 of the Negotiable Instrument Act, Section 118 (a) read as:-
"That every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been CC No. 3472/14 Chatar Singh Vs. Raj Kumar 2/2 3 accepted, endorsed, negotiated or transfered for consideration."
Further Section 139 reads as under:
" It shall be presumed, unless the contrary is proved, 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, or any debt or other liability."
As per section 118 (a) of the Act, there is presumption in favour of complainant that the instrument i.e. cheque in dispute is issued for a consideration and further under section 139 of the Act it shall be presumed, unless the contrary is proved that the holder of the cheque received the cheque for discharge, in whole or in part, or any debt or other liability.
5. It is well settled that the above presumptions are rebuttal one and accused has been able to rebut the same due to cumulative effect of the following reasons:-
i) The complaint as well as evidence by way of affidavit of the complainant Ex. CW1/A is silent about the date, time, month or even year of advancement of loan. In his cross-examination also, the complainant stated that the does not remember the exact date, month or year of lending of the alleged loan of Rs. 1 lakh. He has only vaguely replied that the loan was advanced three years back from the filing of the present complaint. It makes the actual advancement of loan suspicious and doubtful.
ii) The execution of any pronote, agreement or even a receipt at the time of advancement of the loan is a strong circumstance that goes against the complainant and casts a shadow of doubt about lending a loan of Rs. 1 lakh by the complainant to the accused.
iii) There is no explanation on record why the amount of Rs. 1 lakh CC No. 3472/14 Chatar Singh Vs. Raj Kumar 3/3 4 was advanced by the complainant to the accused in cash and not through account payee cheque /bank draft or any other similar mode so that such transfer is reflected in the account statement of either the complainant or the accused.
iv) The complaint as well as evidence by way of affidavit is conspicuously silent as to the duration for which the loan was advanced and also silent about the date, month, year or even place as to where the accused had given him the impugned cheques.
v) The complainant has admitted in his cross-examination, he had given two vehicles to the accused on hire basis and also disclosed the registration number of one of the vehicle. He has further admitted that his two vehicles were with the accused for about one or two weeks. It is specific defence of the accused that he had given two security cheques to the complainant at the time of hiring of the two vehicles from him.
Besides putting a categorical suggestion to the complainant to this effect while complainant was under cross-examination, accused has also stepped into the witness box as DW-1 and reiterated his defence and has also examined DW-2 Kishan Pal who has also corroborated this defence version of the accused.
Accused has categorically mentioned in his affidavit by way of evidence Ex. DW1/A that he was having a tender /contract with the call centres for providing transportation services to them since the year 2004 and in the year 2008, the complainant contacted him for plying his two vehicles for providing transportation services to the call centres. He has further categorically stated that he never took any loan from the complainant and the complainant misused the two cheques ( one is the subject matter of the present complaint and other is subject matter of connected complaint bearing CC no 3471/14) which had been given to him in security of the payment which was payable after plying the above vehicles as per oral settlement and agreement between them in CC No. 3472/14 Chatar Singh Vs. Raj Kumar 4/4 5 the month of July 2008. He has further stated that all the dues pertaining to the plying of the vehicle of the complainant after adjusting the cost of the diesel /fuel have been cleared by him but the complainant did not return the impugned post dated cheques and told him that they are misplaced and same would be returned as and when they would be traceable. Further, DW-2 Kishan Pal has also stated that at the relevant time, he was working with the accused and provided diesel as per demand of the vehicle owners on behalf of the accused and also looked after general affairs of the tender /contract with the call centres on behalf of the accused. In rest of his testimony, by and large he has corroborated the version of the accused that impugned cheques were handed over by the accused to the complainant as security for plying the two vehicles of the complainant. Ld. Counsel for the complainant has invited the attention of this court towards the cross- examination of DW-2 and argued that the accused has failed to remember the bank upon which the impugned cheques were drawn or the date, month or year when the impugned cheques were handed over by the accused to the complainant. This court is of the opinion that this witness has come to depose in July 2015 and the present complaint was filed in the year 2009. No witness is expected to remember the above details after a gap of 6-7 years.
6. To conclude, the testimony of the accused inspires confidence and seems truthful and natural and on the other hand the version of the complainant has become doubtful due to aforequoted reasons. The the accused has been able to raise and prove a probable defence that he had never taken a loan of Rs. 1 lakh from the complainant and that the impunged cheques were given as security to the complainant for plying of his vehicles.
CC No. 3472/14 Chatar Singh Vs. Raj Kumar 5/5 67. Accordingly, in view of the above discussions, the accused is held not guilty and he is acquitted of the offence under 138 NI Act. Surety stands discharged. Documents if any be returned as per rules.
8. File be consigned to Record Room after due compliance.
Pronounced in the open court (Chander Mohan)
On 01.09.2015 MM-02 (NI ACT), South East, Saket
New Delhi
CC No. 3472/14
Chatar Singh Vs. Raj Kumar 6/6