Delhi District Court
Ajay Aggarwal vs Subhash Bundela on 29 November, 2024
IN THE COURT OF SH. RISHABH TANWAR,
JUDICIAL MAGISTRATE FIRST CLASS/NI ACT-01/WEST/DELHI
Ct. Case 1630/2017
Sh. Ajay Aggarwal,
S/o Late Sh. Sagar Mal Aggarwal,
R/o G-39-A, Kunwar Singh Nagar,
Najafgarh Road, Nangloi,
Delhi-110041 .........Complainant
Vs.
Sh. Subhash Bundela,
S/o Sh. Brij Lal Bundela,
R/o Ward no. 12,
Village & Post Office Baggar,
District Jhunjhunu, Rajasthan
Also at :
D-116, Kunwar Singh Nagar, Najafgarh Road,
Nangloi, Delhi-110041 ............Accused
Date of institution of case : 17.03.2017
Date of reserving the judgment : 07.11.2024
Date of pronouncement of judgment : 29.11.2024
JUDGMENT
1. S. No. of the Case : 1630/2017 2. Date of institution of the case : 17.03.2017 3. Name of the complainant : Sh. Ajay Aggarwal 4. Name of the accused : Sh. Subhash Bundela CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 1/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:14:59 +0530 5. Offence complained or proved : 138 N.I. Act 6. Plea of Accused : "Not Guilty" 7. Final Order : ACUITTAL 8. Date of Final Order : 29.11.2024 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the present complaint filed by the Complainant against the above-named Accused under Section 138 read with Section 142 of Negotiable Instrument Act, 1881 (hereinafter referred to as N.I. Act) for dishonour of cheque bearing 823094 dated 07.12.2016 for Rs. 4,25,000/- drawn on Punjab National Bank, Nangloi, Delhi-110041.
2. The brief facts of the case are as follows:-
(a) That the accused resides near to the house of the complainant in the same locality and was known to the complainant for two years. That the accused approached the complainant in the month of January, 2016 and requested for a friendly loan of Rs. 8,50,000/- on the pretext that he was in dire need of money. That the complainant being the neighbour and well known to the accused, gave a loan of Rs. 8,50,000/- to the accused.
That the accused assured the complainant to return the loan amount in the month of August, 2018.
(b) That in the month of August, 2016, the complainant approached the accused and requested to return the loan amount but the accused seeks some to to repay the same. That the complainant again approached the CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 2/16 Digitally signed by RISHABH TANWAR RISHABH Date:
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accused in the month of October, 2016 for repayment of the aforesaid loan but the accused handed over two cheques bearing no. 823094 dt. 07.12.2016 for Rs. 4,25,000/- and 823095 dt. 21.12.2016 for Rs. 4,25,000/- both drawn on Punjab National Bank, Nangloi, Delhi-110041 towards the repayment of the aforesaid loan.
(c) That the complainant deposited the cheque bearing no. 823094 with his banker but the cheque was returned back dishonored vide bank return memo dated 17.01.2017 with the remarks "Funds Insufficient".
(d) That the complainant sent legal notice dt. 31.01.2017 to the accused and the accused failed to comply with the requirement of the said notice within the stipulated period of 15 days from the date of service of notice.
(e) That the accused issued the said cheque in discharge of a credit liability knowing fully well that the same would be dishonored on presentation and had issued the said cheque with malafide intention to cheat the complainant and thus he has committed an offence u/s 138 of the Negotiable Instrument Act. Hence, the present complaint has been filed.
3. After taking pre-summoning evidence, the Court took cognizance of the offence under Section 138 NI Act and directed issuance of process against accused. In pursuance thereof, accused appeared before the Court and furnished Court Bail.
4. Notice under Section 138 of the Negotiable Instruments Act was framed against the accused on 28.08.2019. In the notice, the accused pleaded not guilty and claimed trial. It was stated by the accused that he used to work with the complainant as partner in property business in CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 3/16 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.11.29 16:15:13 +0530 Delhi. It was further submitted that he shifted to Rajasthan in the year 2015 and he never gave any cheque to the complainant. It was further submitted that he used to keep blank signed cheque in the office. It was further submitted that he has no liability towards the complainant. The accused admitted his signatures on the cheque but denied filling in the other particulars on the cheque. The accused denied receiving the legal notice from the complainant.
5. In Complainant's Evidence (CE), complainant has examined himself as CW-1 by way of tendering an affidavit of evidence which is Ex. CW-1/A. The complainant placed reliance on the following documents:-
(a) Ex. CW1/1 is cheque bearing no. 823094.
(b) Ex. CW-1/2 is return memo dated 17.01.2017.
(c) Ex. CW-1/3 is the legal notice dated 31.01.2017.
(d) Ex. CW-1/4 is the postal receipt.
6. CW-1 was duly cross-examined by Ld. counsel for accused. Thereafter, CE was closed vide order dated 24.02.2022. It was followed by recording of the statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to the accused to which he pleaded innocence and false implication. It was stated by the accused that he did not take any money from the complainant. It was further stated by the accused that they had property business in partnership and he used to reside in a tenanted house in front of the complainant's residence. It was further stated by the accused that since they both used to work from the CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 4/16 Digitally signed RISHABH by RISHABH TANWAR TANWAR Date: 2024.11.29 16:15:18 +0530 same office, he kept his cheque book in the drawer at his office. It was further stated by the accused that the complainant used to work in Gaurav Electricals and also as property dealer. It was further stated by the accused that he never gave cheque to the complainant and the complainant took the cheques without his knowledge. It was further stated by the accused that the circulation of the cheque in question was stopped by the bank in the year 2011-12 and he went to Rajasthan in the year 2016 and thereafter, he received the legal demand notice from the complainant and he immediately approached him. It was further stated by the accused that the complainant ensured him that he is under debt and he is filing this case just to stop his creditors. It was further stated by the accused that the complainant further assured him that he would take back this complaint filed against him soon and on his assurance, he did not file any police complaint against the complainant. It was further stated by the accused that the complainant also maintains a diary wherein he enters all the entries with respect to the money advanced/received by the creditors/debtors. The accused denied signing the cheque in question. The accused admitted to receiving legal notice from the complainant and opted to lead defence evidence.
7. The accused has examined himself as DW-1 and has placed reliance upon following documents :
(a) Ex. DW-1/A(colly)(OSR) are the receipts given by the complainant to the accused at the time of winding up of their business of property and the receipt pertaining to amount of committees.
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No.Digitally 5/16 signed by RISHABH RISHABH TANWAR TANWAR Date:
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8. DW-1 was duly cross-examined by Ld. counsel for the complainant. Thereafter, DE was closed on 23.01.2023 and the matter was then listed for final arguments.
9. During the course of arguments, it was argued on behalf of the complainant, by Sh. A. K. Sharma, Ld. Counsel for the complainant, that all the ingredients of the offence under Section 138, NI Act, are fulfilled in the present case. On this basis, the complainant has argued that the presumption under Section 139 read with Section 118 of the NI Act lies in favour of the complainant and that the accused persons have failed to rebut the presumption and raise a probable defence. Ld. Counsel has relied upon the following judgments in support of his arguments:
a. Rafiq and Ors. Vs. Munshilal and Ors. CA no. 1415 of 1981 decided on 16.04.1981 (Hon'ble Supreme Court). b. Ram Kumar Gupta and Ors. Vs. Har Prasad and Ors. CA no. 7648-7649 of 2009 decided on 18.11.2009 (Hon'ble Supreme Court).
c. Kalamani Tex and Ors. Vs. P. Balasubramanian CA no. 1232 of 2021 decided on 10.02.2021 (Hon'ble Supreme Court). d. Triyambak S. Hegde Vs. Sripad CA no. 849-850 of 2011 decided on 10.02.2021 (Hon'ble Supreme Court).
10. Per contra; Sh. M. S. Kaushik, Ld. Counsel for the accused has opposed the arguments rendered on behalf of the complainant and submitted that the accused has not taken any loan from the complainant.
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 6/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:15:32 +0530 It is further submitted that the complainant and accused were business partners and the accused had left his signed cheques in the office before leaving the business and had relocated to Rajasthan and the same have been misused by the complainant to file the present complaint. Ld. counsel has also argued that the complaint is not maintainable as the same has not been signed by the complainant himself. Ld. Counsel has relied upon the following judgments in support of his arguments:
a. P. Preetha V. Panyam Cements and Mineral Industrial Limited 2001 (6) ALT 775.
b. Angu Parameswari Textiles Pvt. Ltd. Vs. Rajan and Company 2017 (1) DCR 173.
e. M/s Rajco Steel Enterprises Vs. Kavita Saraf and Anr. SLP 5996 of 2022 & 5781 of 2022 (Hon'ble Supreme Court). c. Basalingappa Vs. Mudibasappa d. Anil Kumar Vs. Gurmeet Singh (Hon'ble High Court of Punjab and Haryana).
e. Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki (Hon'ble High Court of Bombay).devender Kumar Vs. Khem Chand 2016 (1) DCR 147 (Del.)
11. The Court has carefully perused the case record and has heard arguments advanced by Ld. Counsel for complainant as well as by Ld. Defence counsel.
DISCUSSION ON APPLICABLE LAW CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 7/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:15:37 +0530
12. The question in the present case revolves around 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 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 Explanation: For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability."
13. Thus, in order to ascertain whether the accused has committed an offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 8/16 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
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(b) The cheque 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 that account by an agreement made with that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above-mentioned ingredients are satisfied that the person who has drawn the cheque can be said to have committed an offence u/s 138 NI Act.
14. 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 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;..............."
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 9/16 Digitally signed by RISHABH TANWAR RISHABH Date:
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15. These presumptions in favour of 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. It is not necessary for the accused to lead direct evidence to rebut the presumptions. He may do so by showing preponderance of probabilities and that may be by relying upon the circumstances on record.
16. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is pre-ponderances of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
17. The Apex Court also clarified that the standard of proof is not as heavy as that of prosecution, which is to prove the guilt beyond reasonable doubts but the one upon the accused is only mere preponderance of probabilities. The observations made in K. Prakashan CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 10/16 Digitally signed by RISHABH RISHABH TANWAR Date:
TANWAR 2024.11.29 16:15:52 +0530 vs P. K. Surenderan, (2008) 1 SCC 258 are as follows:
"It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability".
FACTUAL DISCUSSION
18. Now coming to the factual matrix of the present case, this complaint has been filed by the complainant against the accused on the allegations that an amount of Rs. 8,50,000/- is due and payable by the accused to the complainant towards the friendly loan advanced by the complainant to accused. That the accused in discharge of his legally enforceable liability had issued cheque in question (Ex. CW-1-1). However, the aforesaid cheque was dishonoured on presentation. Despite service of legal notice, the accused did not pay the cheque amount to the complainant and thus committed the offence u/s 138 NI Act.
19. The accused has assailed the present complaint and has pleaded that the cheque in question has been misused by the complainant. It is observed here that the accused has not denied his signatures on the cheque in the statement recorded under Section 313 CrPC. In such circumstances, the statutory presumption u/s 118 Indian Evidence Act and Section 139 NI Act is raised in favour of the complainant and the complainant has been able to prove that the cheque in question was given by the accused for a debt or liability. The onus of proof thereafter shifts on the accused to rebut the presumption. The accused can rebut this CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 11Digitally /16 signed by RISHABH RISHABH TANWAR Date:
TANWAR 2024.11.29 16:15:58 +0530 presumption either by bringing out contradictions in the evidence led by the complainant or by leading his own evidence.
20. It is the case of the accused that he was a member of a committee being run by the complainant and he had various financial transactions with him with respect to the committee. To prove this, the accused had brought on record a calculation sheet drawn on a paper (Ex. DW-1/1), which is allegedly the settlement of accounts between the accused and the complainant before the accused had left for Rajasthan. As per the accused, his liability, as per Ex. DW-1/1, was only Rs. 1,53,420/- and the same was already paid by him. It was further argued that even if this liability is assumed to be alive, still the cheque amount of Rs. 4,25,000/- is not maintainable. It is noteworthy that Ex. DW-1/1 is drawn on a paper bearing a printed name of 'Gourav ®' and at the bottom, there are printed words which read "Switches - MCB's - Lightings - Fans - Cables". CW-1 in his cross-examination by the Ld. Counsel for the accused had admitted that he was running a business of electrical goods and trading under the name of 'Gourav' company. Furthermore, in the cross- examination of the accused by Ld. Counsel for the complainant, no suggestion was given on behalf of the complainant that the Ex. DW-1/1 was either a forged or fabricated document. Furthermore, a suggestion was given to the accused that the document does not mention that the same was towards full and final settlement of account, which the accused had denied, however, the suggestion carried forward with it an admission that there was a settlement between the parties, albeit not full and final. Meaning thereby, what was sought to be suggested that there existed some outstanding liability on the part of the accused towards the CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 12/16 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.11.29 16:16:03 +0530 complainant. However, the complainant in his complaint or evidence by way of affidavit has not stated that any such settlement had taken place or that he had received any payment from the accused. Therefore, the defense of the accused that he was a member of a committee being run by the complainant and that there was a settlement between them appears to be probable and the complainant has not been able to controvert the same.
21. It is the case of the accused that the complainant did not have the requisite financial capacity to extend the loan of Rs. 8,50,000/- to the accused. CW-1 in his cross-examination by the Ld. Counsel for the accused had admitted that he used to earn approximately Rs. 1,00,000/- to Rs. 1,50,000/- from his business. CW-1 had brought his income tax returns for the assessment year 2016-17 wherein his gross income for the said assessment year is shown as Rs. 3,28,477/-. Therefore, for a person with such gross incomes, it appears highly unlikely that he would be in a financial position to extend a loan of Rs. 8,50,000/-, that too when admittedly CW-1 maintains his two daughters and also pays maintenance to his ex-wife out of this income. Moreover, the complainant during his testimony had taken a stand that he had taken a loan from Muthoot finance to give the loan to the accused and had brought on record the ledger account statement from Muthoot finance Ltd. (Ex. CW-1/6). As per the same, loan date is shown to be 28.02.2017, however as per the evidence by affidavit of the complaint, the loan was allegedly given by the complainant to the accused in January 2016. Therefore, it also appears improbable that a person who takes a loan in 2017 would be able to further extend the same to another person in the year 2016. It rather CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 13/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:16:11 +0530 seems impossible.
22. The complainant deviated from his own previous statement thereafter and had stated that he had taken the aforementioned loan from Muthoot Finance Ltd. to pay his lenders from whom he had borrowed the loan amount. Now this court has deliberately used the word 'deviated' as the complainant has neither in the complaint nor in his evidence by way of affidavit, stated that he had borrowed the loan amount from his lenders. This statement further falls flat on the ground because neither the names or any other details of those lenders have been explained by the complainant nor any such lenders have been examined by the complainant as his witnesses during the trial. Without the aforesaid, the explanation of the complainant cannot be relied upon. On this count, it can be safely deduced that the complainant did not have the financial wherewithal to extend a loan of Rs. 8,50,000/- to the accused.
23. Furthermore, the alleged loan amount in the present case is Rs. 8,50,000/-, which by no means can be considered a small amount of money. Any prudent person, while extending such a huge loan to someone, would draw any formal or informal documentation or ensure the presence of any witnesses to the loan or any iota or semblance of evidence to establish the factum of loan later. If any such person fails to take any of the aforementioned steps, he puts himself in peril in future and would have to adopt all evils arising out of any dispute with respect to the loan in future. He cannot later rely only on oral evidence to prove the existence of the loan.
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 14/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:16:15 +0530
25. The Court is mindful of the fact that the burden of proof on an accused in a complaint under Sec. 138 NI Act is a mere preponderance of probabilities. The accused only has to raise a probable defence in order to rebut the presumption raised in favour of the complainant. In the instant case, it is quite clear that the accused has raised a probable defence in view of the discussion which has already taken place and has rebutted the presumption raised in favour of the complainant. The onus then lies with the complainant to prove his case beyond reasonable doubt in the absence of any presumption operating in his favour. However, the complainant has failed to prove his case beyond reasonable doubt as he has not been able to show that he had advanced a friendly loan of Rs. 8.5 lakhs to the accused. No written documentation qua the loan has been placed on record nor any witness to the loan has been examined by the complainant in support of his case. On the other hand, the accused has already raised a probable defence. Therefore, it can be safely said that the complainant has failed to prove his case beyond reasonable doubt.
CONCLUSION
26. Accordingly, this Court exonerates the accused Subhash Bundela S/o Sh. Brijlal Bundela for the offence under Section 138 NI Act. The accused is hereby held 'not guilty' and accordingly acquitted of the offence under section 138 NI Act. Bail bonds are cancelled, and sureties stand discharged. Endorsements, if any, stand cancelled.
27. This judgment contains 16 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 15/16 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.11.29 16:16:20 +0530 signatures of the undersigned.
28. Let a copy of the judgment be uploaded on the official website of District Courts, Tis Hazari forthwith.
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2024.11.29
16:16:25
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Announced in open Court (RISHABH TANWAR)
on 29th of November 2024 JUDICIAL MAGISTRATE,
FIRST CLASS NI ACT-01/WEST/DELHI
CC No. 1630/2017 Ajay Aggarwal Vs. Subhash Bundela Pg. No. 16/16