Delhi District Court
Cc No 106/1/04 Pawan Kumar Jaju vs . Tarakant Jha Page 1 Of 10 on 22 May, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
CC No. : 106/1/04
Unique ID No. : 02404R629902004
Pawan Kumar Jaju
S/o Sh. M.C.Jaju
R/o 139, Vikasheel Apartment,
Sector 13, Rohini , Delhi. .........Complainant
Vs.
Tarakant Jha
S/o Lakshmi Kant Jha
R/o House no. 923, Pushpa Vihar,
Sector 7, New Delhi. ..........Accused
Date of institution of case : 12.04.2004
Date of reserving the judgment : 05.05.2014
Date of pronouncement of judgment : 22.05.2014
JUDGMENT
1. S. No. of the Case: 106/1/04 2. Date of Commission of Offence: After 25.09.2003 3. Date of institution of the case: 12.04.2004 4. Name of the complainant: Pawan Kumar Jaju 5. Name of the accused: Tara Kant Jha 6. Offence complained or proved: S.138 N. I. Act, 1881 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 22.05.2014 CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 1 of 10 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The present complaint under section 138 of Negotiable Instruments Act,1881 (hereinafter referred to as "NI Act") is filed by the complainant Pawan Kumar Jaju against accused Tarakant Jha.
2. Succinctly, the facts which has led to the culmination of the present complaint as per the complainant are that accused owes money to the complainant and in discharge of his part liability, the accused tendered cheque bearing no. 928141 dated 29.09.2003 for Rs. 5,74,300 to the complainant drawn on Canara Bank, Malviya nagar, New Delhi Branch. The complainant deposited the said cheque in question on 14.03.2004 for the collection of Rs. 5,74,300 with his banker namely PNB, Prashant Vihar Branch, Delhi. The said cheque in question returned unpaid by the bankers of the accused due to funds insufficient on 15.03.2004 and the bankers of the complainant PNB returned him on 16.03.2004. The complainant informed the accused telephonically about bouncing of the said cheque in question and one cheque previously bounced but the accused evaded his liability. The complainant sent a legal notice dated 16.03.2004 to the accused through RP/AD. The notice was duly served upon the accused as the AD returned duly signed but no reply was given by the accused till the filing of this complaint. Despite service the accused did not return the cheque amount to the complainant and the present complaint was filed against the accused by the complainant.
3. After being satisfied that prima facie ingredients of Section 138 NI Act are made out, cognizance was taken and accused was summoned under section 204 CrPC whereupon the accused appeared and the notice under section 251 CrPC was served on the accused to which he pleaded not guilty and claimed trial.
4. In Complainant's evidence, the complainant(CW 1) adopted his pre-summoning CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 2 of 10 affidavit in post summoning evidence as Ex PW1/A and relied on documents:
Ex CW 1/A -Cheque in question bearing no. 92814
Ex CW1/B -Return memo
Ex CW1/C -Legal notice dated 16.03.2004
Ex CW1/D - Receipt of RPAD
Ex CW1/E -Receipt of AD
5. The complainant evidence was closed and the accused was examined under section 313 r/w 281 Cr.P.C where all the incriminating evidence was put to the accused. The accused stated that the complainant Pawan Kumar Jha is the employee of Goodwill India Ltd. Company. He had financed several buses from Goodwill India Ltd. At the time of finance, the company used to take blank cheques from him and used to return back when he pay the outstanding amount. The present cheque was given as blank to Goodwill India Ltd. Company for the finance of the bus for security. He paid the outstanding amount and when he asked about the impugned cheque, he was informed that the cheque has been lost. The owner of Goodwill India ltd. has also issued a letter to him in this regard. The accused wish to lead defence evidence and has examined himself as DW-1.
6. DW 1 Tarakant Jha deposed that he know the complainant since 1992 as he was working with M/S Goodwill India Ltd. He had taken/financed two bus bearing no. DL-1PB-1728 & DL1PB-1367 from above mentioned company and at a time of finance he had deposited two blanks cheques only signed by him and other contents of the cheques were blanks, as a security. He had paid the entire payment regarding the above CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 3 of 10 mentioned bus and in this regard the complainant also issued a letter to registering authority of Delhi vide letter no. 1136m24/2003 dated 07.08.2013 which is marked as A & B. The director of Motor and General Finance Ltd. also issued a letter to the registering authority of Delhi regarding the NOC of Vehicle no. DL-1PB 1367 which is Mark-C. The director of Motor and General finance Ltd also issued a certificate mentioning that blank cheque (cheque in question.) no. 928141 dated 25.09.2004 drawn of Canara Bank, Malvia Nagar has been lost as reported by his employee Panwan Kumar Jaju. The said letter/Certificate is Ex.DW-1/1. He further deposed that he had not taken any loan from the complainant. After payment of entire financed amount he demanded the blank cheque from complainant but complainant told him that the said cheques were not traceable. The complainant misused the blank cheques and filed in the present false case.
7. I have heard the rival contentions from both sides and have perused the judicial record.
8. Now the question in the present case revolves around as to whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 4 of 10 that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
9. Undoubtedly, it is a sine qua non for constitution of the offence u/s 138 NI Act that the cheque must have been issued for the discharge in whole or in part of legally enforceable liability or debt. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. Presumption in favour of holder CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 5 of 10 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."
"118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made: -
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) ............................................................................"
10. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant.
11. In the present case, the complainant has alleged that the accused is the most dishonest and unscrupulous person, who owes money to the complainant, in discharge of his part liability, issued the impugned cheque to the complainant which has been dishonored on the presentation and despite service of court notice the accused has not paid the cheque amount to the complainant CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 6 of 10
12. On the other hand the accused has defended the case on the ground that the complainant was the employee of Goodwill India (P) Ltd. where the accused has financed several cases and the company used to take blank signed cheques at the time of finance. It is also the defence that the impugned cheque was given as blank to the Goodwill India Ltd. Co. for the finance of bus and after payment of the outstanding amount towards the finance, when the accused asked for the impugned cheque, he was informed that the cheque has been lost. Thereafter the owner of Goodswill India Ltd. Co. issued a letter to the accused in this regard. Accused alleges that he has no liability to the complainant and under the impugned cheque.
13. In complainant's evidence, the complainant examined himself as CW-1 and during cross-examination he admitted that he was working as controller of finance in the Goodwill India Ltd. Co. and the accused had financed several buses from the company. He also stated that he had business relations with the accused and no. of times he has given money to the accused by way of cash and also by way of cheque on behalf of the accused on account of buses. He stated that he does not have any agreement with regard to the business transaction with the accused. He also stated that he is having documents regarding business dealing with the accused and therefore, the cross-examination of CW-1 was deferred for production of such documents. On 02.02.2013 CW-1 produced photocopy of three demand drafts drawn in favour of Seimens Video Automatic Ltd., Executive Director ASRTU and Executive Director ASRTU respectively.
14. CW -1 further deposed that he can provide proof of the cash amount given to the accused but no document was produced by the CW1 complainant to prove the allegations. He stated that he withdrew Rs. 1 lac each on three occasion from his account in OBC Bank and that he has paid Rs. 2 lacs to the accused on 07.08.2003 which the accused deposited with the Goodwill Co. with respect to the vehicle no. 2774. He further CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 7 of 10 stated that he has paid no. of times some amount to the accused but he do not remember their details. He also deposed that he has not reflected the amount given in his Income Tax Return.
15. To support the defence, the accused examined himself as DW-1 and categorically deposed that he knew the complainant since 1992 who was working with M/s. Goodwill India Ltd from where he had financed two buses and had deposited two blank signed cheques as security. He further deposed that he had paid the entire outstanding payment and the complainant also issued a letter to Registering Authority of Delhi dated 07.08.2013. He also deposed that the Director of MGF ltd. issued a letter to the Registering Authority regarding NOC of the vehicle and also issued a certificate Ex. DW 1/1 stating that the impugned cheque has been lost by their employee Pawan Kumar Jaju. He further stated that the impugned cheque has been misused by the complainant.
16. At the outset, it is pertinent to mention that the complaint or the affidavit of the complainant do not disclose as to towards which liability the accused has issued the impugned cheque to the complainant. The complainant has alleged the impugned cheque has been issued to discharge part liability but it is not proved what is the liability and how much is the total liability.
17. Indisputably, complainant was the employee of Goodwill India Ltd. Co. from where the accused had financed buses. The accused had examined himself as DW-1 and has proved his defence which has gone unrebutted, as he has not been cross-examined despite the opportunity given to the complainant. Further more, the accused has proved one letter issued by the MGF Ltd. whereby they have confirmed that the impugned cheque was received by their employee Pawan Kumar Jaju (complainant) and has been lost by Pawan Kumar Jaju. It is also mentioned that all the over due amounts have been CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 8 of 10 paid and settled by the client Tara Kant Jha.
18. The complainant has tried to show that he has business dealing with the accused and he has given some money in cash to the accused and had also made payments on behalf of the accused. Conspicuously, no such allegations have been made in the complaint or the affidavit filed by the complainant, such stand has been taken by the complainant only during the cross-examination. The complainant has produced photocopies of some demand drafts to show that he has made payments on behalf of the accused but no connection has been established between the payments made by the complainant and the liability of the accused. The complainant has allegedly made payments to Seimens Video and ASRTU, but not proximity or connection with accused has been shown. The complainant could not depose as to how much amount he has disbursed in cash to the accused and on what dates. The complainant has also not shown any payment made to the accused in his Income Tax Return. No document, pro-note, receipt or agreement has been produced or proved on record regarding the transaction alleged by the complianant. In totality the complainant has not been able to prove any legally enforceable liability or debt outstanding towards the accused. On the other hand, the accused had very well prove his defence and has shown that he has no liability towards the complainant and that the cheque was given to the Goodwill India Co. for security. The presumption lying in favour of the complainant stands rebutted. The complainant has failed to discharge the onus lying on his shoulders to prove its case against the accused. The accused is entitled to be exonerated FINAL ORDER
19. In the light of the above discussions and observations, this court has no hitch to hold that the complainant has failed in proving their case beyond the shadow of CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 9 of 10 reasonable doubts. This court exonerates the accused Tara Kant Jha for the offence under section 138 NI Act. The accused is hereby acquitted. Bail bonds are cancelled and sureties stands discharged. Endorsements, if any, stands cancelled.
Announced in open court (SUSHIL ANUJ TYAGI)
22ndday of May , 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
CC no 106/1/04 Pawan Kumar Jaju Vs. Tarakant Jha Page 10 of 10