Delhi District Court
Page No. 1 To 11 Suresh Goyal vs . Ruchi Dhatia on 31 January, 2015
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 1146/06
b. Date of the commission of the offence : 14/10/2005
c. Name of the Complainant : Suresh Goyal
d. Name of Accused person and his parentage: Ruchi Dhatia,
and residence D/o Sh. Kalicharan,
R/o Flat No. 28, PocketD,
Mayur Vihar, PhaseII, Delhi92.
e. Offence complained of : Dishonouring of cheque for
"Funds insufficient".
f. Plea of the Accused and his examination (if any): Not guilty
because alleged cheque
not issued in discharge
of any liability.
g. Final Order : Held not guilty.
Acquitted.
h. Order reserved on : 02.01.2015.
i. Order pronounced on : 31.01.2015.
Page No. 1 To 11 Suresh Goyal Vs. Ruchi Dhatia
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Brief reasons for decision:
1.Brief facts necessary for the disposal of this case are that on 10.11.2005, a complaint was filed by Sh. Suresh Goyal (hereinafter referred to as the Complainant) under sections 138 of the Negotiable Instruments Act (NI Act) against Ms. Ruchi Dhatia (hereinafter referred to as the Accused) whereby cognizance was taken for the offence under section 138 of the NI Act on 07.03.2006 and the Accused was summoned before this Court.
2. It has been alleged in the Complaint that the accused had borrowed a friendly loan of Rs. 80,000/ from the complainant on 05.06.2003 against proper documents and promised to pay the same within a short period. It is also stated that the father of the accused had also taken loan from the complainant. It is further stated that in order to discharge the liability towards aforesaid loan of Rs. 80,000/ the accused had issued a cheque in favour of the complainant and thereafter the accused had issued another cheque of Rs. 92,000/ in favour of the complainant which was dishonoured. Resultantly, with respect to the said dishonoured cheque a case u/s 138 of NI Act was filed by the complainant against the accused and her father at Karkardooma Court where the accused pleaded guilty at the time of service of notice u/s 251 Cr.P.C and on 30.10.2004 the matter was amicably settled by the accused with the complainant. It is stated that both the cases against the accused and her father were settled for a total amount of Rs. 2,50,000/. Further, it is added that during the pendency of cases Page No. 2 To 11 Suresh Goyal Vs. Ruchi Dhatia 3 against the accused and her father, a sum of Rs. 92,000/ was paid twice and time was sought by the accused to pay the balance amount with penal amount for delayed payment. Ultimately, it is submitted that the accused had handed over an unsigned paper bearing statement of account and the accused agreed to pay Rs. 1,09,400/ as well as executed a pronote (Ex. CW1/A). It is alleged that for payment of said amount of Rs. 1,09,400/ the accused had issued cheque bearing number 571847 dt. 08.09.2005 drawn on ICICI Bank Ltd., Connaught Place, New Delhi01 (Ex. CW1/B). The said cheque when presented for payment was dishonoured on 26.09.2005 vide return memo Ex. CW1/C on the grounds "Funds Insufficient". Thereafter, the complainant got served legal demand notice dt. 28.09.2005 (Ex. CW1/D) upon the accused vide registered post as well as UPC (Receipts are Ex. CW1/E to Ex. CW1/G). However, the complainant submits that despite service of notice the complainant has not received his money and hence the present complaint case was filed.
3. Notice of accusation u/s 251 Cr.P.C was served upon the accused under Section 138 NI Act on 06.08.2008, to which she pleaded not guilty and claimed trial.
4. To prove his case, the Complainant tendered his postsummoning evidence by way of affidavit Ex. CW1/1 and examined himself as CW1. Not only did the complainant rely upon his already exhibited documents, but also filed certified copies pertaining to cases bearing CC No. 658/04 & 659/04 which were collectively exhibited as Ex. CW1/H. During the cross examination of the Page No. 3 To 11 Suresh Goyal Vs. Ruchi Dhatia 4 complainant, copy of the money lending licence of the complainant was filed on record and marked L. After crossexamination of the Complainant by the Counsel for the Accused, CE was closed on 04.01.2012. However, vide an application of the accused u/s 311 Cr.P.C the complainant was recalled for cross examination and certain documents were collectively exhibited as Ex. CW1/X1 (OSR) which included balance sheet and income tax return of the complainant.
5. Statement of the accused had been recorded under Section 313 Cr.P.C on 01.02.2012 wherein the accused denied taking any loan of Rs. 80,000/ from the complainant and stated that she had given two blank cheques bearing number 571846 & 571847 towards security against loan of Rs. 80,000/ borrowed by her father. She added that settlement with respect to above said cheques had already been arrived between the complainant and her father whereby the complainant had already withdrawn the earlier cases filed against the accused and her father. She also stated that no settlement was arrived between her and the complainant for an amount of Rs. 2,50,000/. She denied executing pronote Ex. CW1/A as well as the alleged settlement of Rs. 1,09,400/. She also denied that she had issued cheque in question to the complainant on 08.09.2005 for an amount of Rs. 1,09,400/. The accused also denied receiving any legal demand notice issued by the complainant. Accused further stated that she had not issued any cheque towards the alleged liability and that she had no liability towards the present cheque in question. Accused added that blank pronote as well as some blank papers were got signed by her and taken at the Page No. 4 To 11 Suresh Goyal Vs. Ruchi Dhatia 5 time of granting of loan of Rs. 80,000/ to her father. Lastly, the accused stated that she wants to lead evidence in her defence.
6. In order to prove her innocence, the accused examined two witnesses i.e. herself as DW1 and her father Sh. Kali Charan as DW2. During the cross examination of DW1 certain documents were put to DW1 by the counsel for the complainant which were filed on record as Ex. DW1/DA to Ex. DW1/DC (hand written letters), Ex. DW1/DD (photocopy of statement of the accused in CC No. 658/04), Ex. DW1/DE (cheque bearing number 571846 drawn on ICICI Bank) and Mark DX1 (a hand written settlement). During the cross examination of DW2 also certain documents were put to DW2 by the counsel for the complainant which were filed on record as Ex. DW2/DA to Ex. DW2/DC (hand written letters), Ex. DW2/D (cheque bearing number 033860 drawn on Canara Bank), Ex. DW2/DE (photocopy of an FIR No. 91/08, PS Samaypur Badli dt. 03.03.2008) and Mark DX2 (photocopies of certain letters issued by DW2).
7. Both the parties argued the matter at length and filed the written arguments in support of their respective cases as well as filed relevant case law for the assistance of this Court. Heard. Record perused.
8. Having perused the facts of the case and the averments of the parties in favour of their respective cases, the primary issue which needs to be decided before proceeding further is in respect of the liability with respect to which the cheque is alleged to have been issued by the Accused to the Complainant. It is pertinent at this stage to examine the Explanation to Section Page No. 5 To 11 Suresh Goyal Vs. Ruchi Dhatia 6 138 of the NI Act which provides that: For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
The importance of the existence of a legally dischargeable liability has also been emphasized by the Hon'ble Apex Court in its recent judgement titled as Indus Airways P. Ltd. vs. Magnum Aviation P. Ltd. [2014 (4) SCALE 645] by holding that:
The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138.
9. In view of the above stated legal principles, it is indisputable that for the case to be made out against the Accused under section 138 of NI Act, the cheque must have been issued for some liability which can be legally enforced.
Coming to the facts of the present case, as per the Complainant's own case, the cheque in question has been issued by the Accused to him for payment of the Page No. 6 To 11 Suresh Goyal Vs. Ruchi Dhatia 7 settlement amount as agreed between the parties with respect to other cases filed under section 138 of NI Act. Now the question to be determined by this Court is, whether the cheque issued in respect of compromise between the parties for amicable settlement of an existing case under section 138 of NI Act, constitutes legally enforceable liability for the purposes of section 138 of NI Act or not.
10. Even for the above mentioned question that has come for determination before this Court, the answer can be found in the canon of law laid down by the Hon'ble Supreme Court of India in the matter titled as Lalit Kumar Sharma & Anr. vs. State Of U.P. & Anr. [(2008) INSC 816 (6 May 2008)] wherein it has been clarified that the cheque issued in terms of compromise between the parties does not bring about a new liability. It was held by the Apex Court that:
15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt.
11. In the present case as well, the bare perusal of the Complaint makes it evident that the liability averred by the Complainant is towards payment of settlement amount in respect of complaint cases bearing numbers 658/04 and 659/04 as is also evident from the crossexamination of the Complainant as well as the documents relied upon by him. Vide his own statement before the Page No. 7 To 11 Suresh Goyal Vs. Ruchi Dhatia 8 Mediation Cell dt. 04.10.2005, the Complainant had stated on oath that:
I undertake to withdraw the Complaint case no. 658/04 against Ms. Ruchi Datia in view of issuance of a cheque of Rs.1,09,400/ by her towards full settlement of the complaint case no. 658/04 and the complaint case no. 659/04 qua which cheque I shall take action in accordance with law.
12. Hence, it is now undeniable by the Complainant that the liability in question is this case is in fact not any further debt/loan transaction between the Complainant and the Accused but payment in respect to some other complaint case. In these circumstances, the case of complainant is rendered weak enough to be unable to stand on its own legs.
13. Nevertheless, even other factors surfacing from the cross examination of the Complainant also bring the case of the Complainant in the broad spectrum of disbelief. Perusal of record reveals that the cheque in question had been dishonoured on 26.09.2005 and the legal demand notice with respect to the dishonoured cheque was issued on 28.09.2005. It is astonishing that despite the dishonour of cheque allegedly issued for payment of settlement amount, the Complainant instead of continuing with the Complaint case no. 658/04, withdrew the same. To the utter surprise of this Court, the Complainant preferred not to even mention the fact of said dishonour and rather deposed on oath on 26.10.2005 before the Court of Ld. MM that he had received full and final payment from the Accused. The conduct of the Complainant does not reflect that Page No. 8 To 11 Suresh Goyal Vs. Ruchi Dhatia 9 of a reasonable prudent man and hence, doubt is created on the veracity of his testimony as the same does not inspire the confidence of this Court. Moreover, with the above discrepancy, it is apparent that only one averment of the Complainant can be true, either that he had received the entire payment and hence withdrawn the case or that despite being fully aware that he had not received entire payment he deposed on oath that he had received the same. Thus, concealment of some material facts from the Court by the Complainant is prima facie manifest from the case of the Complainant and the evidence brought by him.
14. Moreover, on further perusal of the record it is also revealed that during the earlier proceedings before the Mediation Cell with respect to CC No. 658/04, it has been noted by the Member, Mediation Cell, vide order dated 04.10.2005 that the Accused had stated that there was no such cheque for an amount of Rs.1,09,400/ which has been issued by her to the Complainant. Therefore, the issuance of cheque in question for the alleged amount has in any case been denied by the Accused even before the Mediation Cell. It is on the unilateral statement given by the Complainant with respect to receipt of cheque from the Accused that the case had been allowed to be withdrawn.
15. On the other hand, a consistent defence has been taken by the Accused that the cheque in question was given as a blank signed cheque to the Complainant as a security for a loan taken by father of the Accused from the Complainant. It has also been stated by the Accused that she had also handed Page No. 9 To 11 Suresh Goyal Vs. Ruchi Dhatia 10 over a blank signed pronote at the time issuance of aforesaid loan. Various documents admitted by both the parties to be in handwriting of the Accused are available on record (refer to Ex.DW1/DA and Ex.DW1/DB) which when compared to the handwriting of the contents on the cheque in question (Ex. CW1/B) and the pronote (Ex. CW1/A) make it clearly visible to the naked eye that the contents of the cheque in question and the pronote have not been filled in by the Accused. Even the document Mark DX1, which pertains to the calculation of the amount as mentioned on cheque in question is not in the handwriting of the Accused. Hence, it is relevant to mention here that even the argument taken by the Ld. Counsel for the Complainant that the cheque in question and pronote in question have been filled by the Accused in her own handwriting falls flat on the ground. With the above observations, the defence taken by the Accused that the cheque in question and the pronote were issued by her to the Complainant in blank signed form becomes highly probable.
16. In view of the facts of the case as well as appreciation of evidence led by both the parties and the law of the land, it rendered clear beyond even a speck of doubt that the case of the Complainant is unable to sustain any credibility. While on the one hand the case of the Complainant appears to be unreliable, on the other hand, the defence taken by the Accused seems probable. In these circumstances, presumptions, if any, raised against the Accused under section 118 and 139 of the NI Act successfully stand rebutted. The case at hand has been pending disposal before the Court since almost a Page No. 10 To 11 Suresh Goyal Vs. Ruchi Dhatia 11 decade and therefore, without consuming any more time, in the light of above held discussion, this Court has no hesitation in holding that the Accused deserves to be set at liberty with respect to the present complaint case.
17. Hence, the Accused is hereby acquitted of the offence under section 138 of the NI Act.
Announced in the open court (VIDHI GUPTA)
on 31 Day of January, 2015.
st
MM/KKD/Delhi
This judgment contains 11 signed pages.
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