Delhi District Court
Second Address vs Sh. Nippun Jasuja on 5 January, 2021
CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit No.1454/2012 (16617/2016)
In the matter of:
Sh. Praveen Gupta
son of Sh.Rajinder Kumar Gupta
R/oB358 Hari Nagar
New Delhi - 110064
Second Address
RZ29, Raghu Nagar
Pankha Road
New Delhi110045
.....Plaintiff
Versus
Sh. Nippun Jasuja
R/oNil - 59 AB
Malviya Nagar
New Delhi110017
....Defendant
Date of Institution of Suit : 19.12.2012
Date of reserving judgment : 19.12.2020
Date of pronouncement : 05.01.2021
Appearance: Sh.Pradeep Kumar, Advocate, ld. Counsel for the plaintiff.
Defendant in person.
Page no. 1 of 33
CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021
JUDGMENT
1. Vide this judgment, I shall decide the present suit which has been filed by the plaintiff against the defendant thereby seeking recovery of Rs. 5,90,000/ (Rupees Five Lakh Ninety Thousand) along with pendente lite and future interest.
2. Relevant facts as emanating from the plaint are as under:
(i) Plaintiff and defendant were having friendly and family relationships and he was known to the plaintiff being his friend for the last about 11 years.
(ii) It is averred that on 15th October 2009, defendant approached plaintiff at his residence at Hari Nagar and requested for a friendly loan of Rs.5,00000 (Rs. Five Lakhs Only) for a period of 1½ years. He asked this money for the treatment of his mother who was not keeping well at that time. Plaintiff accepted the request of the defendant and decided to advance the loan to the defendant. The said loan was advanced to the defendant at the other house of the plaintiff at Raghu Nagar in presence of Sh.Bharat Kohli, common friend of plaintiff and defendant, who was present at that time.
(iii) In discharge of his liability of loan, defendant issued one post dated cheque bearing No.859127 dated 21st April, 2011 of Rs.5,00,000/ (Rs. Five Lac Only) from his saving bank account bearing No.053051017006 maintained with HSBC Bank Ltd having its Page no. 2 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 branch at F43 South Extension, Part 1 New Delhi110049 (hereinafter referred to as the said cheque). It is averred that the defendant has even signed the said cheque in presence of plaintiff and Sh.Bharat Kohli. At the time of issuing of the said cheque, plaintiff was assured by defendant that the same will be honoured on its presentation. Plaintiff presented the said cheque with his banker and surprised to see that the aforesaid cheque returned 'unpaid' with the remarks "ACCOUNT CLOSED." The main purpose of the defendant was to deceive and cheat the plaintiff in as much as he was fully aware that he does not have sufficient balance in his bank account. On coming to know about the fate of the said cheque, plaintiff tried to contact the defendant but instead of paying the cheque amount, he (defendant) showed negative attitude towards the plaintiff. Plaintiff made several telephonic requests to the defendant but to no effect.
(iv) Plaintiff issued a legal notice dated 24 th May 2011 to the defendant which was duly received by the defendant. In spite of receiving legal notice, defendant did not bother to honor his liability and did not pay the cheque amount. Plaintiff filed a complaint under Section 138 of Negotiable Instrument Act (in short N.I.Act) which is pending trial. Hence, the present suit.
3. Defendant filed his written statement, and interalia submitted that he was approached by the office of plaintiff in year 2008 representing him as TeleBanking Officer for assisting him in providing Page no. 3 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 loans from reputed bank both nationalized and private banks. Induced by the said representation, plaintiff sought some documents from him for processing loan application and accordingly he submitted his documents. However, after some time, he was informed by plaintiff that his loan application has been rejected but plaintiff may assist him in providing loan through some private financier, namely, Praveen Kumar Gupta @ Tilu Gupta. It is stated that plaintiff had introduced himself as Tilu Gupta to him, which is the other name of Plaintiff.
4. It is denied that defendant had given his consent to avail the loan facility from private financier i.e. Praveen Kumar Gupta (Plaintiff). It is further submitted that plaintiff had requested him to submit some signed documents and some blank signed cheques as security and guarantee for availing the loan facility.
5. Believing the contentions of the plaintiff, he handed three crossed security cheques for processing loan to the plaintiff i.e. Praveen Kumar Gupta. Out of these three cheques, cheque bearing No. 859127 has been misused to file present case and a criminal case u/s 138 of N.I. Act at Dwarka Court, wherein except the date, all the details were filed by him and bears his handwriting while other two cheques including the cheque bearing no.859128 except his signature none of the details were filed by him or bears his handwriting.
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6. It is submitted that the plaintiff has misused one of the security cheque by filing a case Tis Hazari Court against him in collusion and connivance with his friend Surinder Singh s/o Late Sh. Padaman Singh. The said three cheques including the said cheque has been handed over to the plaintiff as a security cheque towards future loan transaction which was never availed by him and as such he does not owe any liability to repay the said loan. It is, therefore, prayed that suit filed by the plaintiff may be dismissed with cost.
7. Replication has not been filed by plaintiff despite opportunity granted.
8. Based on the pleadings of the parties, following issues were framed on 07.10.2013:
i) Whether the plaintiff is entitled to the decree of amount, as prayed for? OPP
ii) If answer to the aforesaid issue is in affirmative, then whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP
iii) Relief.
9. In order to prove his case, plaintiff stepped into witness box as PW1 and led evidence of PW2 Ms.Roshini, Assistant Ahlmad and PW3 Bharat Kohli who deposed on the lines of plaintiff. and closed plaintiff evidence.
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10. Defendant examined himself as DW1 and got examined DW2 Sh. B.C.Das, CMO (SAG), Ministry of Health & Family Welfare who proved health card of the mother of the defendant and closed defendants evidence.
11. I have heard the submissions of learned Counsel for the plaintiff and defendant in person and with their assistance have also gone through the record.
12. My issue wise findings are as under : Issue nos. 1 & 2 These issues are overlapping and disposed of by way of common order. The burden to prove these issues was upon the plaintiff. The plaintiff appeared as PW1 and deposed through his affidavit by way of evidence Ex. PW1/G and reiterated the contents of the plaint and interalia testified that in the month of October, a number of times and on 15th October, 2009 defendant approached plaintiff at his residence at Hari Nagar and sought a loan, which was advanced to the defendant at other house of the plaintiff at Raghu Nagar New Delhi. The plaintiff had advanced a loan of Rs. 5,00,000/ for a period of one and half years for the treatment of the mother of the defendant in the presence of PW3 Bharat Kohli. Defendant in lieu of discharge of his said liability had issued the cheque Ex. PW1/A which on its presentation was dishonoured and after issuance of legal notice as per the mandate of provision Section 138 of NI Act, the plaintiff filed the Page no. 6 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 complaint before the ld. Trial Court u/s 138 of the NI Act. The plaintiff after service of legal notice also filed the present suit for recovery.
13. In crossexamination, PW1 admitted that the defendant visited the plaintiff for availing loan between 10 to 15th October 2009 and plaintiff advanced a loan of Rs. 5,00,000/ after arranging Rs. 2 to 2.25 lakhs from PW3, Bharat Kohli and arranged Rs. 75,000/ on his own and the remaining amount was contributed by father of the plaintiff. PW1 did not remember the exact date when he paid the loan amount to the defendant. The loan amount was paid in cash and no document was prepared for the said loan. PW1 admitted that he is an assessee of income Tax and filed the ITR for the year 20092010, however, he did not know as to whether in his ITR the loan amount has been shown or not. However, lateron, PW1 produced ITR but not proved the same, wherein the loan amount was not shown for the year 200910. PW1 admitted that in the year 2009, his average income was ranging from Rs. 70,000/ to Rs. 1,00,000/. When the loan amount was paid to the defendant Sajid Khan, who was residing in the other house of the plaitniff at Raghu Nagar, was not present. PW1 admitted that besides the present suit he has filed other civil proceedings and other complaint cases U/s 138 NI Act against other persons. PW1 did not have any license of extending any loan.
14. To rebut the case of the plaintiff, defendant has appeared as DW1 and testified through his evidence affidavit Ex. DW1/A and Page no. 7 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 interalia deposed that the defendant received a call from the office of the plaintiff in the year 2008 representing as telebanking officer for providing loan from reputed banks and DW1 was induced by said representation and defendant got deposited some documents at the request of the plaintiff for processing loan application. However, defendant was informed by plaintiff that his application was rejected and he could arrange the loan for defendant through some private financer by the name of Sh. Praveen Kumar Gupta @ Tilu Gupta in as much as defendant, lateron came to know that Tilu Gupta is also knows as Praveen Kumar Gupta. The defendant has given his consent for availing loan from the plaintiff and on the request of plaintiff defendant got deposited some signed documents along with some blank signed cheque as security and guarantee for availing the said loan facility. The plaintiff has misused the said cheque. However, in the other two cheques including the cheque no. 859128, all the details except signature of the defendant are filled in by the plaintiff.
15. The plaintiff has also misused the security cheques by filing a complaint through Surender Singh in Tis Hazari Courts which has already been dismissed by court of competent jurisdiction through order Ex. DW1/1. Plaintiff along with his other friends have cheated the innocent people by misusing the cheque availed on the pretext of arranging loan for innocent people and filed various complaints in different courts. The mother of the defendant was never having any Page no. 8 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 heart problem, however, she is holding as CGHS card for medical treatment as per the CGHS scheme.
16. In crossexamination DW1 has admitted that he know plaintiff since 2008 and he got a call from the office of plaintiff in the month of MarchApril 2008. DW1 is not aware whether the plaintiff was working with any financial institution and plaintiff introduce himself as Tilu Gupta having office at Hari Nagar. He testified that :
"It is correct that prior to 2008 i.e. the day on which I received a telephonic call I was not having any acquittance with the plaintiff at any point of time..."
17. DW1 admitted that he had sought assistance of plaintiff in availing a loan of Rs. 45 lakhs and plaintiff assured him that he will assist him in availing the loan from nationalised or other bank. DW1 admitted that the said cheque pertains to his account and bears his signature. He further admitted that the address mentioned on legal notice Ex. PW12/F issued to him by plaintiff is correct. DW1 admitted that first time when he gave the documents to the plaintiff for disbursal of loan from bank or financial institution, those documents were returned to him by plaintiff but, lateron, when plaintiff said that he can arrange a private loan from Praveen Gupta, those documents have not been returned by plaintiff to him.
18. In crossexamination DW1 further testified that Praveen Gupta @ Tilu Gupta had filed another complaint against defendant Page no. 9 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 through one Surender Singh for an amount of Rs. 10,50,000/ terming the same as a loan availed by defendant for treatment of his mother. DW1 has not filed any civil or criminal proceedings against the plaintiff for misusing the said cheque. DW1 has not approached any police authority regarding false prosecution by plaintiff.
19. During the course of arguments, ld. Counsel for the plaintiff had argued that the defence taken by the defendant that the defendant was approached by a stranger namely Tilu Gupta with who he has no prior acquaintance and said Tilu Gupta represented himself as a tele banking officer who can facilitate the defendant for availing a loan from Nationalised bank or other bank, however, the plaintiff is residing at Hari Nagar whereas, the defendant is residing in Malviya Nagar a posh area. He further argued that defendant failed to disclose the exact date and time when he received the telephonic call and on the assurance of a stranger Tilu Gupta, how defendant has handed over blank signed documents and blank cheques, defendant has failed to explain, therefore defence put forth by the defendant is a sham one which deserves to be rejected. Defendant has even not cared to keep a xerox copies of the documents and the cheques so handed over to Tilu Gupta and defendant never approached any public authority with his ground that his cheques and blank signed documents were misused.
20. Counsel for the plaintiff has further contended that plaintiff as PW1 has deposed in categoric terms that defendant approached Page no. 10 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 plaintiff on 15.10.2009 for availing a loan of Rs. 5,00,000/ for treatment of his ailing mother. However defendant has taken a plea of alibi that he never visited the house of the plaintiff on 15.10.2009 but defendant had never led any evidence in this respect except his solitary statement.
21. The plaintiff has served a legal notice on the defendant which was never replied by defendant, therefore, defendant admitted the contents of legal notice so serve upon him and further all the requirements of Section 138 of the NI Act are fulfilled in the present case. In this regard, reliance is placed upon Alavi Haji v. Palapetty Muhammed & Anr. Appeal (Crl) 767/2007. It is further contended that plaintiff has given the source for advancing a loan of Rs. 5,00,000/ to the defendant. The plaintiff has testified that loan was given on 15 th October 2009, however, in crossexamination PW1 testified that the said loan was advanced after 45 days when the loan was sought by the plaintiff but plaintiff did not remember the exact date due to the lapse of time. The plaintiff testified that loan was given to defendant to the defendant for treatment of his ailing mother therefore, onus was on the defendant to prove that his mother get no treatment during the relevant period. The non disclosure of the said loan amount in the ITR is not going to rebut the presumption available to the plaintiff u/s 118 r/w Section 139 of the NI Act. PW3 has deposed that he filed ITR to the tune of rupees four crores, however, defendant never got summoned record in this regard from the Income Tax Department. In this regard Page no. 11 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 reliance is placed upon Krishna P. Morajkar v. Joe Ferrao & Anr. Judgment passed by Hon'ble High Court of Mumbai, Legal Crstal.com/1104581. It is further argued that the defendant has submitted that he has given blank signed cheque to the plaintiff for availing loan, however, it has never been proved that plaintiff has ever claimed that he had worked with any bank or financial institution. The defendant has issued the said cheque in lieu of the return of the loan amount and defendant admitted his signatures, therefore he cannot escape from his liability. Reliance has been placed on M/s The Jammu & Kashmir Bank v. Abhishek Mittal judgment passed by Hon'ble Delhi High Court in Crl. Appeal No. 294/2011. It is further contended that the defence put by the defendant is a cock and bull story in as much as the defendant failed to explain as to how defendant happen to handover blank signed document and blank cheques to the plaintiff and thereafter, never took any action against the plaintiff. The story of the defendant also, prima facie, appears to be false one as defendant have merged the identity of Tilu Gupta with plaintiff as per his convenience.
22. Per contra, defendant in person has contended that plaintiff in connivance with his other friends including Surender Singh has misused the cheques allegedly handed over by defendant to plaintiff for availing a loan from financial institution or Nationalized bank The defendant has moved an RTI and it was disclosed that the plaintiff along with his other accomplices has filed many cases against innocent persons. The story of the plaintiff that he advance a hefty amount of Page no. 12 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 Rs. 5,00,000/ as loan for treatment of his ailing mother is prima facie false in as much as no sane person would advance a hefty loan to a stranger without getting executed some documents as a token of the loan amount advanced to the borrower and furthermore, mother of the plaintiff was never admitted in hospital at the relevant time, otherwise she is having a CGHS card for her medical treatment. The plaintiff has never placed on record any document that his house was under
renovation at the time of advancing the loan to the defendant nor the owner of the said house where the loan was advanced has been examined, nor the father of the plaintiff has been examined who allegedly handed over an amount of about two lakhs to plaintiff for advancing a loan of Rs. 5,00,000/ to defendant.
23. Defendant further submitted that plaintiff has challenged the source of the plaintiff to advance such a hefty amount to defendant and before raising the presumption u/s 139 of the NI Act against the defendant the plaintiff was under bounden duty to prove his source of arranging such a hefty amount in as much as plaintiff is earning a meager amount of 1012 thousand and a large family to support, therefore, it is next to impossible fort the plaintiff to arrange such a hefty amount for advancing loan to the defendant. In this regard he has placed reliance upon Sajidur Rehman v. Rajiv Kashyap & Ors. 2017(3) DCR 461 and K. Prakashan v. P.K. Surenderam, judgment passed by Hon'ble Supreme Court in Crl. Appeal No. 1410/2007.
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24. It is further argued that plaintiff has not shown the loan amount in his ITR and plaintiff has testified that he has asked his Chartered Accountant to show the loan amount, but it was not shown, however, plaintiff has never revised his ITR as per the mandate of Section 139(5) of the IT Act. In the same manner PW3 Bharat Kohli has also never get rectified/revised the mistakes in his ITR in as much as PW3 has also not shown the amount of Rs. 2,00,000/ given by him to the plaintiff for advancing the said loan amount to defendant.
25. Defendant in person has argued that plaintiff pleaded that in the month of October 2009and on 15.10.2009 plaintiff was approached by defendant at his residence at Hari Nagar and the said loan was advanced at the other house of the plaintiff at Raghu Nagar. However, PW3 Bharat Kohli testified that the loan was disbursed to the defendant in his presence on 15.10.2009, whereas, plaintiff has testified that he had paid the loan to defendant after about 45 visits paid by the defendant to the residence of the plaintiff and, therefore, the version given by the plaintiff could not be reconciled with the deposition of PW3. In this regard he has placed reliance upon Karamvir v. Anita Sharma, 2011(1) DCR 135.
26. This court has gone through the facts of the case and the evidence on the record and this court will like to note the legal principles regarding nature of presumptions to be drawn under Section 118 read with Section 139 of the NI Act and the manner in which it can Page no. 14 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 be rebutted. Section 118 provides for presumptions as to negotiable instruments. Section 118 is as follows: "118. Presumptions as to negotiable instruments. 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 been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;"
27. The next provision, which needs to be noticed is Section 139, which provides for presumption in favour of holder is as under :
"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."
28. The plaintiff being holder of cheque and the signature on the cheque having not been denied by the defendant, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. It is relevant to notice the general principles pertaining to burden of proof on the defendant especially in a case where some statutory rebuttable presumption has to be drawn against the defendant.
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29. Though not quoted reliance is placed upon Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, (1999) 3 SCC 35 wherein, it has been held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the nonexistence of a consideration by raising a probable defence and in paragraph No.12, it has been observed that : "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the Page no. 16 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......"
Though not quoted reliance is placed upon M.S. Narayana Menon Alias Mani Vs. State of Kerala and Another, (2006) 6 SCC 39 wherein, the Hon'ble Supreme Court had considered Sections 118(a), 138 and 139 of the Act, 1881 and it was held that presumptions both under Sections 118(a) and 139 are rebuttable in nature.
30. It was further held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. The standard of proof evidently is preponderance of probabilities. The inference of 'preponderance of probabilities' can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
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31. Though not quoted, reliance is placed upon, Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 wherein, it has been observed as under :
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant."
32. The Hon'ble Supreme Court in case titled Basalingappa v. Mudibasappa (2019) 5 SCC 418, after consideration of law regarding rebuttable presumptions U/s 118 read with 139 of NI Act, summarised the principles in the following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Page no. 18 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 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 they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence,Section139 imposed an evidentiary burden and not a persuasive burden.
33. It was observed that "the presumption mandated by Section 139 of the Act indeed include the existence of a legally enforceable debt or a legal liability". However, at the same time, it has been observed in the abovesaid judgment of Rangappa (supra) that the presumption is " of course in the nature of a rebuttable presumption and it is open to the accused a raise a defence in terms of the existence of a legally enforceable debt or a liability can be contested". .
34. At this stage, it will be useful to refer to two more recent decisions of Hon'ble Supreme Court, first in the case of ANSS Raja Shekhar Vs. Augustus Jeba Ananth, (2019) SCC Online SC 185 and second in the case of Kishan Rao Vs. Shankar Gouda, (2018) 8 SCC 165. In both these judgments, the presumptions as available under Sections 118 and 139 of the Negotiable Instruments Act has been dealt with in detail and after following the view taken in Rangappa's case (Supra), it has been held that it is permissible for the accused to point out contradictions/deficiencies in the evidence led by the prosecution to contend that the presumption stands rebutted on preponderance of probabilities. It is not necessary for the accused to lead evidence in defence to rebut the presumption.
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35. It may be noted that while considering the applicability of section 118(a) read with section 139 of the Negotiable Instruments Act, a mandatory presumption was required to be raised in terms of section 118(b) of the act, while section 139 of the act merely raised a presumption in favour of the holder of the cheque, i.e. that the cheque had been issued in discharge of a debt or liability.
36. In the present case the dishonour of the cheque has not been disputed therefore, it is a matter of record that the cheque was present within its validity period and dishonoured by the banker of the defendant. It is also not disputed that the said cheque was drawn on the bank account of the defendant as the defendant has admitted his signature on the said cheque. The legal notice has also been denied having been received by the defendant, however, in crossexamination defendant admitted his address as detailed in the legal notice.
37. There is no dispute that once the issuance of the cheques is admitted by the defendant presumption u/s 118 read with section 139 NI Act is bound to be raised against the defendant. It shall be presumed that issuance of cheque was for the discharge in whole or in part of debt or other liability, the effect of the said presumption has been explained in a number of judgments detailed in foregoing paras of the judgment wherein it has been held that the said presumptions are rebuttable and its only effect is to shift the initial burden of proof on the defendant.
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38. It is also well settled that in order to rebut the said presumption, the defendant can rebut the said presumption and shift back the burden of proof on the plaintiff. The defendant is only required to raise a probable defence and defendant cannot be expected to discharge high standard of proof i.e. standard of proof for rebutting the presumption raised U/s 139 NI Act is "preponderance of probabilities". It is also well settled law that the said presumption can be rebutted either directly or by bringing on record "preponderance of probabilities"
by reference to the circumstances upon which the defendant relies.
39. It is also trite that the presumption U/s 118 read with 139 NI Act are an example of reverse onus clause and the defendant cannot be expected to disprove the existence of legally recoverable debt by direct evidence. In fact it is also conceivable, that in some case the bare denial of the existence of legally enforceable debt cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the onus back on the plaintiff.
40. It may be noted that there is no dispute regarding the case law relied upon by the plaintiff titled as Krishna P. Morajkar (supra) wherein, it was observed that the nonmentioning of the loan amount by the complainant in his ITR, though may violate the provisions of Section 269 SS of the Income Tax Act but did not lead to conclude that the presumption u/s 139 of the said Act stand rebutted. However, our Page no. 21 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 own High Court in Vipul Kumar Gupta v. Vipin Gupta 2012 (V) AD(CRI) 189, and Kulvinder Singh v. Kapil Ahmad 2014 Col. II JCC (NI) 100, has observed that loan amount advanced in contravention of Section 269 SS of the Income Tax Act clearly creates a doubt regarding truthfulness of the stand taken by the complainant of the advancement of the loan meaning thereby, nondisclosure of the loan amount in the ITR creates a doubt regarding the source of advancement of the loan to the defendant and needless to say this court is bound by the judgment passed by Hon'ble High Court of Delhi.
41. However, in the present case a hefty amount of Rs. 5,00,000/ has been advanced as loan by the plaintiff but the said loan amount has not been disclosed by the plaintiff in his ITR. So is the case with the ITR of PW3 whose version is that he filed ITR for Rs. 4 crores, in the relevant period, who is alleged to have handed over an amount of 22.25 lakhs to the plaintiff for handing over a loan of Rs. 5,00,000/ to the defendant. The said non disclosure of the loan amount given by PW1 & PW3 in their ITRs make the case of the plaintiff highly doubtful. In addition to it, father of the plaintiff has not been examined to corroborate the version of the plaintiff that his father had advanced an amount of about Rs. 2 lakhs to plaintiff for advancing loan to defendant. Furthermore, plaintiff has not proved his income though plaintiff has placed on record ITR for the relevant period wherein the income of the plaintiff for the relevant period is about Rs. 2.5 lakhs. The plaintiff has shown no document except his solitary statement that he is known to Page no. 22 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 the defendant for the last so many years. The plaintiff has also tendered no explanation as to how and under what circumstances he advanced a loan of Rs. 5,00,00/ to defendant without getting any document executed for such loan amount, therefore, from the above discussion it can be safely concluded that plaintiff has failed to disclose his source of arranging the loan of Rs. 5,00,000/ to the defendant, however, defendant has raised the objection regarding the ability of the plaintiff to arrange such hefty loan amount. It may also be relevant here to mention that PW3 in his crossexamination has admitted that plaintiff has appeared as a witness in a complaint case filed by PW3 against some other person meaning thereby that PW3 is an interested witness and his testimony is to be seen with suspicion and his deposition cannot be termed to be unblemished and is unworthy of credit, therefore, it shall be presumed that plaintiff has no source of arranging huge amount to be advanced as loan on the basis of an oral agreement and defendant has rebutted the presumption U/s 118 pf the NI Act and therefore, onus shift on the plaintiff to prove his capacity to pay the said loan amount to the defendant which plaintiff failed to rebut.
42. So far as the contention of the counsel for the plaintiff that the judgment Ex. DW1/1 is having no relevance and cannot be taken into consideration, in as much as judgment/passed by the Civil court is not binding on the criminal court is concerned, suffice is to say that in V.M. Shah Vs. State of Maharashtra & Anr., (1995) 5 SCC 767, Hon'ble Supreme Court has held that :
Page no. 23 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 "As seen that the civil court after fulldressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial Court and neither the finding of the civil court gets disturbed nor the decree becomes inoperative."
43. The correctness of the aforesaid judgment in V.M. Shah (supra) was doubted by Hon'ble Supreme Court and the case was referred to a larger Bench in K.G. Premshankar Vs. Inspector of Police & Anr., AIR 2002 SC 3372. In the said case, the Judgment in V.M. Shah (supra) was not approved and while deciding the said case, Hon'ble Supreme Court placed reliance upon the Judgment of the Privy Council in Emperor Vs. Khwaja Nazair Ahmad, AIR 1945 PC 18 wherein it has been held as under : "It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. Moreover, the police investigation was stopped and it cannot be said with certainty that no more information could be obtained. But even if it were not, it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it."
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44. It may be noted that in P. Swaroopa Rani Vs. M. Hari Narayana alias Hari Babu, AIR 2008 SC 1884, Hon'ble Supreme Court has observed as under : "It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case......"
45. In Syed Aksari Hadi Ali Augustine Imam & Anr. Vs. State (Delhi Admn) & Anr., (2009) 5 SCC 528, Hon'ble Supreme Court considered all the earlier Judgments on the issue and observed that in the case M/s Karam Chand v. Ganga Pershad v. Union of India AIR 1971 SC 1224 it was held as under :
"It is well settled principles of law that decision of the civil court are binding on the criminal Courts. The converse is not true".
However, in Karam Chand (supra) the ratio of judgment passed in M/s Sherrif v. State of Madras, AIR 1954 SC 397 has not been appreciated wherein, it has been observed as under :
"As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban. be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as Page no. 25 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 sentence or damages. The only relevant consideration here is the likelihood of embarrassment."
46. A similar view has been reiterated by Hon'ble Supreme Court in Vishnu Dutt Sharma Vs. Daya Prasad, (2009) 13 SCC 729, wherein it has been held that the decision in Karamchand (supra) stood overruled in K.G. Premshankar (supra). It may be noted that in Vishnu Dutt Sharma (supra) Hon'ble Supreme Court, has considered the effect of a judgment passed in a criminal proceeding on a pending civil proceeding. The court also considered the applicability of section 40 of the Indian Evidence Act, 1872 (i.e. relevancy of previous judgments to bar a second suit or trial) and held that section 40 would only be applicable if the case was barred by the principle of resjudicata or by the provisions of other statutes. It however held that the provision did not lay down that a criminal court's judgment would be admissible in a civil court.
47. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and viceversa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be Page no. 26 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 decided on the basis of the evidence adduced (therein). However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration.
48. It was further observed in Vishnu Dutt (supra) that it would be incorrect to contend that a judgment rendered in criminal proceedings would make a continuation of civil proceedings as an abuse of the process of the court. A judgment passed by criminal court, therefore, be relevant in civil proceedings, only for the purpose of identifying the accused and the operative order passed therein, the decision however, would not be binding in a civil proceedings. It was mandated that civil and criminal proceedings can proceed simultaneously. The standard of proof in the two proceedings is entirely different. Civil cases will be decided on the basis of preponderance of possibility while in the criminal case a doctrine of proof beyond reasonable doubt would be applied.
49. From the above discussion, it can be held that though the judgment passed by the criminal court is not binding in the civil court, however, a judgment passed in criminal court can be taken into consideration for identification of the parties and further the operative part of the said judgment is relevant, therefore, said judgment Ex. DW1/1, can be taken into consideration for the abovesaid two purposes.
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50. It may be noted that the defendant is only supposed to rebut the presumption U/s 139 and 118 of the NI Act by way of preponderance of probabilities and in the present case I found that the said presumption apart from the facts as detailed in para no. 41 of this judgment, has been legally rebutted by the defendant through judgment Ex. DW1/1 and affidavit Ex. DW1/2 filed by plaintiff in the said criminal complaint bearing no. 2400/2001 through which the accused (therein)/defendant was acquitted.
51. It may be noted that the plaintiff in the abovesaid complaint has filed his affidavit of evidence Ex. DW1/2, wherein in para no. 5 it has been averred as under :
"That on the request of the accused who approached me on 2 Nov 2009" the complainant presented the said cheque in Jan 2010 after two months that its actual dated which was 4 Nov 2009. At that time accused told me that as his mother was not keeping well he could not arrange funds and the same will be arranged in Jan 2010 and this resulted in the souring of relation of the complainant and the accused"
52. It may also be relevant to mention here that in the above said complaint had been filed by the complainant/Surender against defendant in respect of cheque no. 859128 dated 04.11.2009 for the sum of Rs. 10,50,000/. The said cheque is bearing no. 859127, which is subject matter of the present suit, meaning thereby as per the averment in the said complaint, the complainant Surender Singh had Page no. 28 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 averred that the defendant has availed a loan of Rs. 10,50,000/ from the said Surender Singh for treatment of mother of the defendant and averments in the affidavit Ex. DW1/2 filed by the plaintiff in the said complaint is also to the same effect. Therefore, when the defendant has availed a loan of Rs. 10,50,000/ in march 2009 through cheque no. 859128 as detailed in the abovesaid complaint then how it is possible that the defendant availed another loan of Rs. 5,00,000/ from the plaintiff in the month of October 2009, more specifically on 15.09.2009 and handed over a cheque of 859127 to the plaintiff in as much as, the common course of business dictates that the cheque no. 859128 cannot be issued firstly to the said Surender Singh the complainant in the abovesaid criminal complaint in March 2009 and cheque no. 859127 (the said cheque) in October 2009 to plaintiff. The cheque bearing no. 859127 must ought to have been issued first of all and thereafter, the cheque bearing no. 859128 must have been issued to the said Surender Singh. However, in the present case, the issuance of the said cheque is admittedly in October 2009 and the cheque no. 859128 had been issued by the defendant in the month of March 2009 to the said Surender Singh.
53. It may also be relevant to mention here that both the cheques have been issued by the defendant in discharge of his liability for the loan of Rs. 10,50,000/ taken from the said Surender Singh and Rs. 5,00,000/ from plaintiff respectively for the treatment of his ailing mother. Apart from that defendant has also deposed that his mother was never went for any treatment or never admitted in any hospital. No Page no. 29 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 evidence has been led by plaintiff to rebut the said deposition of DW1 and DW1 has further proved that his mother was having a CGHS cashless card and, therefore, there is no need for the defendant to get the loan for the treatment of his mother.
54. The plaintiff has not stated as to why he has given hefty amount as loan to the defendant without getting any document. The plaintiff could not prove his source of arranging such huge amount for advancing loan to defendant, However, the defendant has proved that Surender Singh had filed a criminal complaint against the defendant, wherein the plaintiff was cited as a witness but anyhow, plaintiff could not be examined for reasons best known to the said complainant or the plaintiff. However, in the said complaint, it was pleaded that loan of Rs. 10,50,000/ was advanced to the defendant which defendant returned through cheque no. 859128 bearing number next to the number of the said cheque and defendant has been acquitted in the said complaint.
55. The contention of ld. Counsel for the plaintiff that defendant did not replied legal notice sent by plaintiff is devoid of force in as much as defendant need not enter into witness box or need not given the evidence to rebut the presumption and probable defence is enough to rebut the presumption. Therefore, non sending of the reply to the legal notice is not fatal to the case of the defendant.
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56. So far as the contention of plaintiff by playing reliance upon Abhishek Mittal (supra) that the defendant has admitted his signature on the said cheque then he is bound to understand the consequences of his doing so and defendant cannot escape his liability raised against him by virtue of Section 118 of the NI Act. In this regard, suffice is to say that in the said judgment, the accused (therein) has raised the defence that he has issued the cheque to one Jitender Sharma, who happened to be the Bank Manager of the appellant (therein) at the relevant time, which was found to be a false defence. Therefore, facts of the said case stands distinguished to the facts of this suit. However, in the case law relied upon by the defendant in case titled Karamvir (supra), two versions were found to have been put forth by the complainant (therein) and the version favorable to the accused (therein) was accepted, however, in the present suit the version of plaintiff cannot be stated to be at variance with the deposition of PW3. In same in Sajidur Rehman (supra), the non disclosure of the source of huge amount of the loan handed over in cash including the absence of any evidence showing the solvency of the complainant (therein) was found sufficient to rebut the presumption raised against the accused (therein) U/s 139 of the NI Act. Similarly, in K. Prakashan (supra), the accused (therein) was found to have rebutted the presumption u/s 139 of the Act.
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57. The following facts emerged from the above discussion:
(i) that the absence of any evidence showing the solvency of the plaintiff to have advanced the loan of Rs. 5,00,000/ to the defendant leads to the presumption that there was no existing debt,
(ii) There is no documentary evidence to show that such a huge amount of loan was advanced to the petitioner solely on the basis of oral agreement without execution of any loan document.
(iii) The said cheque which has been issued for availing a loan of Rs.
5,00,000/ from the plaintiff in the month of October 2009, for the treatment of ailing mother of the defendant, however, for the said purpose defendant had already availed a loan from the said Surender Singh through cheque no. 859128 in March 2019, which was subject matter of the criminal complaint which stood dismissed through judgment Ex. DW1/1. From the above discussion, issue nos. 1 & 2 are accordingly decided against the plaintiff.
Relief:
58. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish its case against defendant. The suit filed by the plaitniff is accordingly dismissed.
Page no. 32 of 33 CS No. 1454/2012 Praveen Gupta v. Nippun Jasuja DOD : 05.01.2021 Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
DR signed by DR
VIJAY KUMAR
Announced in the open court on VIJAY DAHIYA
05th Day of January, 2021 KUMAR Date:
2021.01.12
DAHIYA 11:43:33
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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