Delhi District Court
Cc No. 15026/1/11 Manoj Babbar vs . Manish Sharma 1/11 on 25 July, 2014
IN THE COURT OF MS. MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
ROHINI: DELHI
Unique ID No. 02404R0293342011
CC No. 15026/1/11
Manoj Babbar
S/o Late Sh. Darshan Lal,
R/o A302, Second Floor,
Meera Bagh, Paschim Vihar,
New Delhi110087 ............Complainant
V/s
Manish Sharma
S/o Late Sh. Permanand Sharma,
R/o B814, Sector21D,
Faridabad, Haryana121 008
................Accused
JUDGMENT
(1) Name of complainant, Manoj Babbar
parentage & address S/o Late Sh. Darshan Lal,
R/o A302, Second Floor,
Meera Bagh, Paschim Vihar,
New Delhi110 087.
(2) Name of accused, Manish Sharma
parentage & address S/o Late Sh. Permanand Sharma,
CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 1/11
R/o B814, Sector21D,
Faridabad, Haryana121 008
(3) Offence of complained of or proved: 138 N. I Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 17.10.2011
(6)Date of reserve of order: 17.07.2014
(7)Date of Final Order: 25.07.2014
(8) Final Order: Acquitted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That accused approached the complainant for friendly loan of Rs. 4,00,000/ at the above mentioned address of the complainant. The complainant in good faith gave friendly loan of Rs. 4,00,000/ to the accused and they were having good friendly relations. In liquidation to his liability the accused issued a cheque bearing no. 354761 dated 27.06.2011 of Rs. 4,00,000/ drawn on Bank of Baroda, Rajender Nagar, Ghaziabad. Thereafter the complainant presented the said cheque in his bank i.e. Vijaya Bank, Rohini Branch, Delhi but the same was dishonoured with the remarks "Account is inoperative/dormant" vide bank returning memo dated 03.09.2011. On such dishonor of cheque, the complainant sent a legal notice dated 13.09.2011 to the accused but instead of making payment CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 2/11 to the complainant, the accused sent a false, frivolous, vague and baseless reply just to avoid his liability towards the complainant. Thereafter complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished accordingly to law.
3. In his pre summoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record the original cheque bearing no. 354761 dated 27.06.2011 of Rs. 4,00,000/ as Ex.CW1/1, Cheque returning memo dated 03.09.2011 as Ex.CW1/2, legal demand notice dated 13.09.2011 as Ex. CW1/3, postal receipt as Ex.CW1/4, courier receipt as Ex.CW1/5. He also exhibited the complaint as Ex.CW1/6.
4. Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.P.C for this offence was framed upon him on 29.06.2012 to which he pleaded not guilty and claimed trial. He further stated that his brother had some loan transactions with the complainant and he gave blank signed cheque to the complainant as a guarantor of his brother. He further stated that later his brother had given all the loan amount he does not have any liability towards the complainant. He accepted that he received the legal notice.
5. In his post notice evidence, complainant examined himself as CW1 and he adopted his pre summoning evidence and during cross examination he deposed that he gave interest free loan of Rs.4,00,000/ to the accused in second week of June,2010 and he is running his own property business. He further stated that he gave sum of Rs.4,00,000/ by arranging the same from his mother, brother and some other persons. He further stated that he does not remember the name of those persons. He further stated that he did not take the receipt of the loan amount given to the accused and no agreement was executed for the aforesaid loan. He further stated that there is no documentary proof of loan. He further stated that as accused is illiterate person, so no written agreement was executed. He further stated that cheque in question bears the signatures of the accused and all the contents in the cheque except the amount in figures was filled by him. He CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 3/11 also denied the suggestion that accused did not filled the amount in figures in the cheque in question. It is pertinent to mention here that vide his statement dated 29/04/2014 complainant accepted that the amount in figures also was filled by him in the cheque in question. He further stated that he used to file Income Tax Return but he had not shown the loan amount in his Income Tax Return of the relevant years and in the balance sheet and in the profit and loss account. He further stated that accused had to invest the loan amount in the property dealing business. He further stated that he did not take any security or guarantee from the accused. He further stated that he received the cheque in question from the accused at the time of giving loan. He further stated that the date in the cheque was filled by him after lapse of one year. He accepted that one complaint for dishonour of cheque against the brother of accused is pending. He denied the suggestion the the cheque in question was taken from the accused as blank signed cheque as security for the loan amount of Rs.1,25,000/ given to the brother of accused. The reply to the legal notice as EX.CW1/D1 was shown to the complainant which was accepted by him. He further denied the suggestion that he misused the cheque in question against the accused.
6. Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating evidence was put to the accused to which he has stated that he had never taken any loan from the complainant and his brother Sh. Virender Sharma took a loan of Rs. 1.25 lacs from the present complainant and as a guarantor he had given a blank signed cheque as security. He further stated that later on his brother had paid the entire loan amount before filing of this complaint. He further stated that he had received legal notice and replied the same. He further stated that he does not have any liability towards the complainant and complainant has misused his cheque.
7. During defence evidence, accused examined two witnesses including himself as DW1 and Sh. Virender Sharma as DW2 in his defence.
DW1 during his examination in chief stated that he had not taken any loan CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 4/11 from the complainant and his brother namely Sh. Virender Sharma took loan of Rs.1,25,000/ from the complainant about threefour years back. He further stated that the cheque in question was given as blank security cheque for the loan taken by his brother and his brother has already returned the loan amount. He further stated that despite repayment of loan, the complainant did not return the cheque in question on one pretext or other and has filed the false complaint to extract money from him.
During his cross examination he submitted that the cheque in question bears his signatures and voluntarily stated that the same was given as blank security cheque to the complainant as his brother had some financial transactions with the complainant. He accepted that his brother was also in property business along with him. He denied the suggestion that cheque was given for repayment of loan and he accepted that no written communication was made by him to demand the cheque back from the complainant. He voluntarily stated that he made the demands verbally. He denied the suggestion that he took the loan for Rs. 4,00,000/ from the complainant and cheque was issued for the repayment of loan.
8. DW2 during his examinationinchief stated that he took loan from the complainant for Rs.1,25,000/ from the complainant about 45 years back and towards security complainant took four blank cheques from him and one cheque from his brother. He further stated that he has repaid the loan and despite that complainant had not returned the cheques and filed this false case. He further stated that his brother has no liability towards the complainant. In his cross examination stated that he took loan from the complainant only once. He denied the suggestion that he borrowed the money for investing in property business. He accepted that accused is not working with him.
9. After closing of Defence Evidence, oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 5/11
10. Following submissions were made on behalf of the complainant: •That the complainant gave loan for Rs.4,00,000/ to the accused and the cheque in question was given for the repayment of loan.
•That the accused has already accepted the relations with the complainant and has accepted that the cheque in question was given by him to the complainant. •That the defence of the accused is that the brother of the accused took the loan of Rs.1,25,000/ from the complainant and the cheque was given as security cheque.
•That the accused has accepted that he stood the guarantor of his brother. •That the brother of accused who was examined as DW2 has also stated that the cheque in question was given by the accused as security.
•That as per the brother of the accused, he had repaid the loan and the complainant had not returned the cheques given by them for security. •That no proof towards repayment of loan has been given by the accused. •That this is very crystal clear case in favour of the complainant and the accused has failed to rebutt the presumption in favour of the complainant.
11. Per contra Following submissions were made on behalf of the accused: •That the complainant has not placed on record any document regarding the advancement of loan to the accused.
•That the complainant has not mentioned the date of advancement of loan to the accused.
•That the complainant has not given the mode of payment of loan. •That only during cross examination the complainant has stated that the loan was given by way of cash.
•That the complainant has failed to give the name of persons from whom he arranged the cash to be given for loan.
•that complainant during cross examination stated that he arranged some cash from his mother and brother, however he did not examined them as witnesses. •That no receipt was taken by the complainant and no agreement was executed CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 6/11 by the complainant for the advancement of loan.
•That earlier the complainant had stated that the amount in figures in the cheque in question was filled by the accused, however on 29/04/2014 he gave statement in the court that the amount in figures in the cheque in question was also filled by the complainant himself.
•That the loan amount has not been shown by the complainant in his Income Tax Returns and in the profit and loss statement filed with the Income Tax Returns. •That it is accepted by the complainant that date in the cheque in question was filled by him after lapse of one year.
•That no witness has been examined by the complainant who witness the transaction.
•That it is hard to believe the version of the complainant that loan was given to the accused for the investment in property and no interest was charged by him, as investments in the property give huge returns.
•That it is accepted by the complainant that one case for dishonour of cheque is pending against the brother of the accused also.
•That it is accepted by the complainant that the cheque in question was given by the accused as blank cheque and he has not given any evidence to corroborate the loan amount.
•That the suggestion given by the complainant to DW2 that the loan was given for the investment in the property business proves our case. •That as per the complainant the accused is illiterate person, however he has said that accused was in property business which means that accused is not illiterate person.
•The Ld. Counsel for the accused has relied upon the following judgments:
1. SS Chauhan Vs. State & Anr., Delhi HC, IV (2012) BC, 426.
2. Krishna Jnardhan Bhatt Vs. Dattatraya G. Kegde, (2008), IV SCC 54.
3. John K. John Vs. Tom Vergish & Anr., 2008 CRL.LJ 434.
4. Sandhi Vs. Mary Sherly, 2011 (4), Crimes 158(Ker.).
5. Gopan Vs. Tonny Varghese, 2009 (1) DCR 314.
6. Shri Jose Pullan Vs. Uma Jasrasaria, 2012 (1) DCR 410.
CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 7/11
7. M/s. Sekhon and Sekhon Finance Vs. Rani, 2013 (3) DCR 120.
All the judgments have been perused, considered and taken on record.
12. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first: As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the Hon'ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325.
Section 138 of the Act three ingredients, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
13. Above said three ingredients have been proved by complainant in the present case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118(a) and section 139 of the said act are read as under:
Sec. 118 Presumption as to Negotiable Instruments : Until the contrary is proved, the following presumptions shall be made: CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 8/11
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;
Sec. 139. presumption in favour of holder: 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, of any debt or other liability.
14. For the offence under sec. 138 N.I. Act, the presumptions under section 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under section 118 and 138 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
15. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
16. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case the accused has admitted his signatures and it is said by him that the cheque in question was given by him as security cheque as he stood guarantor for his brother who took loan from the complainant for sum of Rs. 1,25,000/. As per the CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 9/11 accused he never took any loan from the complainant. However on the other hand complainant stated that accused took loan for sum of Rs. 4,00,000/ from him which was given by him in cash after arranging money from his mother, brother and some other persons. Complainant failed to give the name of the persons from whom he arranged the loan amount. Complainant has also not examined his mother and brother as witness. Complainant has not placed on record any documentary proof for loan. As per the complainant no loan agreement or receipt was executed for the loan transaction between him and the accused. Complainant has accepted that one case has been filed by him against the brother of the accused under section 138 of N.I. Act itself. It means that complainant know the brother of the accused. But complainant has not given name of any person who witness the loan transaction between him and the accused. Brother of the accused could be made witness to the same transaction by the complainant.
During the cross examination of complainant he specifically denied the suggestion that the amount in figures in the cheque in question was not filled by accused. However on 24/04/2014 he gave the statement in the court that the amount in figures in the cheque in question was filled by himself and not by the accused. During cross examination of DW2, suggestion was given on behalf of the complainant that the loan amount was given for the investment in property business. But it should be noted that no interest was charged by the complainant for the loan amount. This fact is hard to believe that for the investment in the property business interest free loan could be given for a huge amount and that too without execution of any loan agreement and receipt. Complainant has not adduce any evidence to corroborate the loan amount. He has also not shown the loan amount in his relevant Income Tax Returns. Complainant has also accepted that date in the cheque in question was filled after lapse of one year. In these circumstances doubt over the truthfulness of the version of the complainant can be raised.
17. Hence in the light of above discussion it comes out that the complainant CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 10/11 has failed to prove his case beyond all the reasonable doubts and accused has successfully rebutt the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'preponderance of probabilities' and inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies as the same was held by Hon'ble Supreme Court in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172. Accordingly accused is acquitted for the offence under section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
th
TODAY i.e, 25 Day of July, 2014 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
CC No. 15026/1/11 Manoj Babbar vs. Manish Sharma 11/11