Delhi District Court
The Relevant Portion Of The Judgment Is ... vs . on 5 June, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
Bajaj Finance Ltd.
Vs.
Jai Prakash Ankit Kumar & Ors.
C.C. No.475/13
P.S.: Netaji Subhash Place U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 25.02.2013
b) Name of Complainant M/s Bajaj finance Ltd. through its authorized representative Sh. Nitin Kashyap.
c) Name of the accused and Jai Prakash Ankit Kumar through its Address: partner Ankit Goyal and Asha Goyal address:440, Gali No.8, Durga Puri Extn., Delhi93.
d) Offence complained of: U/s 138 N.I. Act e) Plea of accused: Pleaded not guilty f) Final order: Acquitted. g) Date of order: 05.06.2014 h) Date of institution of case: 20.03.2013 i) Date of decision of case: 05.06.2014
CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 1 of 9 2 Brief facts and reasons for decision of the case:
1. The present case has been instituted upon a complaint filed by Bajaj Finance Ltd. (hereinafter referred as 'the complainant') against Jai Prakash Ankit Kumar (hereinafter referred as 'the accused'), alleging that on request of the accused, a loan was provided by the complainant company vide loan agreement no.'401PSB00173537'. In partial discharge of liability, accused no.2 & 3, on behalf of accused no.1 issued the impugned cheque bearing no. '91972' dated 12.01.2013 in sum of Rs.3,00,354/ (Ex.CW1/B) in favour of the complainant. On presentation, same was dishonoured for the reasons and remarks 'Funds Insufficient' vide bank memo dated 17.01.2013 (Ex.CW1/C). Thereafter, a Legal demand notice dated 01.02.2013 (Ex.CW1/D) was dispatched to the accused on 02.02.2013 (postal receipts are Ex.CW1/E1 to Ex.CW1/E3 and registered envelops are Ex.CW1/F1 to Ex.CW1/F3). It is alleged that payment was not made good despite service. Resultantly, the present complaint has been filed u/s.138 N.I. Act.
CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 2 of 9 3
2. On appearance, accused was admitted to bail and a notice u/s. 251 CrPC was served, to which they pleaded not guilty and claimed trial.
3. During the complainant's evidence, substituted AR Sh. Vinay Kumar Sharma was examined as CW1, the sole complainant witness. He filed his evidence by way of an affidavit Ex.CW1/1A. During post summoning evidence, the statement of account Ex.CW1/H & Ex.CW1/I and power of attorney of substituted AR Ex.CW1/A1 was also filed.
4. Complainant's evidence was followed by the statement of accused U/s. 313 CrPC, wherein, the entire incriminating evidence was put to the accused persons. During the statement, accused persons denied the entire case of complainant and stated that the case has been filed to harass them by misusing a security cheque. CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 3 of 9 4
5. Defence evidence was not led despite given sufficient opportunities. Thus, DE was closed.
6. I have heard the final arguments from the counsels appearing on behalf of the parties. Now, I proceed with the judgment.
7. First argument advanced by ld. counsel for the accused is that the alleged loan of Rs.33,48,387/ was never sanctioned and disbursed to the accused. The alleged loan of Rs.33,48,387/ has also been denied by the accused persons during their statements u/s.313 CrPC.
8. At this juncture, it would be very relevant to refer the cross examination of CW1 in context of the loan agreement. CW1 stated that: "I cannot say to whom the loan in question was advanced. The complainant had provided loan to CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 4 of 9 5
accused no.2 & 3 and not to accused no.1. Again said, the loan was provided to accused no.1 also." CW1 further deposed that: "No document has been filed on record to show that loan amount was actually disbursed to the accused."
CW1 further stated that: "I cannot say how much amount was disbursed to the accused."
9. The above testimony of CW1 clearly shows that he was not aware that to whom the loan was advanced and for what amount.
10. The statement of account filed by the complainant Ex.CW1/H & Ex.CW1/I are not supported by certificate in terms of section 65B, Indian Evidence Act. Thus, same are not admissible in evidence. CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 5 of 9 6
11. At this stage, I would like to refer the judgment passed in case of M. Vairavan v. T.M Selvaraj Crl A No. 352 of 2009, Madras High Court. The relevant portion of the judgment is reproduced here as under : "in the instant case, the appellant/complainant is only an individual, therefore, it cannot be said that non production of his account books would affect the case under section 138 of N.I. Act, though the same is relevant in a case relating to financial companies and other institutions having books of account. The decision of this court in Murugan Financiers Vs. P.V. Perumal reported in 2005 Crl L.J. 269 ended in acquittal on account of the non production of books of accounts, sought for by the accused therein has no relevancy in this case."
12. In the present case, complainant is a financial company, the alleged loan has been denied by the accused, despite the specific denial, the loan documents were not produced. In view of the above CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 6 of 9 7 mentioned judgment, since the loan documents were not produced, the disbursal of alleged loan is under the shadow of doubts.
13. Second argument advanced by ld. counsel for the accused is that impugned cheque is either one of the 39 blank signed security cheques handed over to the complainant towards the 1st and 2nd loan or one of the five security cheques handed over towards 3 rd loan.
14. Per contra, it is argued for the complainant that impugned cheque was a EMI cheque and not a security cheque.
15. During the cross examination, CW1 stated that the agreed mode of repayment was through ECS (electronic clearing system). However, witness failed to explain that when the agreed mode of payment was through ECS then why the impugned cheque was issued.
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16. It is admitted by CW1 that amount of each EMI was Rs. 1,00,118/. Whereas, the amount of impugned cheque is Rs. 3,00,354/. This difference of amount falsifies the claim of complainant that impugned cheque was a EMI cheque, reason being, for an EMI of Rs.1,00,118/, a cheque of same amount shall be issued and not of Rs.3,00,354/.
17. From perusal of the cheque, it can be easily noticed that signatures, amount, date and name of payee are filled with different inks. This fact provides further support to the argument of the accused that impugned cheque was given blank signed for purpose of security.
18. Thus, it is proved that impugned cheque was not an EMI cheque as alleged by the complainant. The possibility cannot be ruled out that same was filled and presented subsequently. CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 8 of 9 9
19. With the above discussions, this court arrives at a conclusion that the accused has satisfactorily rebutted the statutory presumptions u/s.118 and 139 of Negotiable Instruments Act. The possibility cannot be ruled out that impugned cheque was issued for purpose of security. Since the accused has satisfactorily rebutted the presumptions and has shown a plausible defence in his favour, thus further discussions are not required. Accused stands acquitted accordingly.
(Announced in the open court on 05.06.2014) This Judgment contains 9 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.475/13; Bajaj Finance Ltd. Vs. Jai Prakash Ankit Kumar & Ors. Page 9 of 9