Delhi District Court
Girish Chandra vs Manoj Khulbay on 14 October, 2024
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IN THE COURT OF SH. KOMAL, JMFC, N.I. ACT-08,
SOUTH SAKET COURTS : NEW DELHI
CNR No.:-DLST020346012019
IN THE MATTER OF
CT Cases 22416/2019
Girish Chandra Vs. Manoj Khulbay
Girish Chandra,
S/o Late Sh. Shiv Dutt,
R/o- A3/1, Phase 5 Aya Nagar,
New Delhi-110047. ..............Complainant.
Vs.
Manoj Khulbay,
S/o Late Sh. Laxmidutt Khulbay,
Officer Grade-II,
Almora Urban Co-operative Bank Ltd.
R/o- 719, Rajpur Ranikhet,
Chowk Bazar Almor,
Uttrakhand-263645. ..................Accused.
Date of Institution : 09-08-2019
Offence complained of : u/s 138 N.I. Act
Date of final arguments : 14.10.2024.
Date of decision : 14.10.2024.
Decision : Acquitted.
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Offence punishable under section 138 of Negotiable
Instruments Act, 1881
JUDGMENT
Brief Facts:
1. The accused is known to the complainant and was a closed family friend since last many years. The accused was working as a Manager at Almora Urban Co-operative Bank, Ranikhet Branch, Uttrakhand.
2. The accused approached the complainant for the financial aid as he was in dire need of money to settle some of his official deficiencies.
3. Thereafter, the complainant in good gesture and owing to the good relation with the accused provided Rs. 56,86,723/-
assistance to the accused. The accused returned Rs. 3,75,300/- to the complainant and remaining balance Rs.53,14,223/- was the outstanding on him.
4. Thereafter, the accused issued three cheques bearing No. 007554 for a sum of Rs.5,00,000/- dated 04.12.2018, No. 007555 for a sum of Rs.10,00,000/- dated 11.04.2019 and No. 007556 for a sum of Rs.38,14,223/- dated 11.07.2019 all drawn on Almora Urban Co-operative Bank Ltd, Dunagiri Road, Dwarahat branch in favour of the complainant to discharge the CT Case -22416/2019 Digitally signed by Girish Chandra Vs. Manoj Khulbay Page 2 of 19 komal komal Date:
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abovesaid liability and also issued a written acknowledgement thereof cum receipt of total outstanding amount.
5. That the cause of action of the present case arose when the complainant presented the cheque bearing No. 007555 for a sum of Rs.10,00,000/- dated 11.04.2019 drawn on Amora Urban Co- operative Bank Ltd. Dunagiri Road, Dwarahat branch to his banker for encashment (hereinafter to be referred as 'cheque in question'). Upon presentation, the said cheque got dishonored and was returned vide bank return memo dated 06.06.2019 with remarks 'Kindly contact drawer/drawee Bank and please present again'.
6. Thereafter, on failure of accused to pay the cheque in question amount, a legal demand notice dated 01.07.2019 was sent to the accused through Speed Post on his last known address and the same was duly served. Even after serving of the legal notice, the accused had not made any payment to the complainant. Since no payment was made by the accused within the stipulated time period of 15 days after the receipt of the legal demand notice, the complainant was constrained to file the present complaint.
APPEARANCE OF ACCUSED AND TRIAL
7. Pursuant to filing of the present complaint, the complainant filed his pre-summoning evidence by way of CT Case -22416/2019 Digitally Girish Chandra Vs. Manoj Khulbay Page 3 of 19 signed by komal komal Date:
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Affidavit Ex.CW-1/2 and has relied upon documents stated therein.
8. The Court took cognizance of the offence under Section 138 NI Act against the accused qua cheque in question vide order dated 11.01.2021 and ordered for issuance of summons qua accused for his attendance. On 05.08.2022, the accused appeared before the court and was granted bail subject to furnishing of bail bond in the sum of Rs.1,00,000/- with one surety in the like amount. On the same date, the notice u/s 251 Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.PC' for the sake of brevity), explaining the substance of accusation was served upon the accused. The accused pleaded not guilty and claimed trial. In his reply to the notice u/s 251CrPC, inter-alia, he pleaded that the cheque in question was lost and had filed a complaint at PS Dwarahat on 01.10.2014 regarding the same. He further pleaded that he had no liability towards the complainant. The accused admitted his signatures on the cheque in question but denied filing up other particulars of the same. Accused further admitted that he had received legal demand notice from the complainant and had also replied the same.
9. Given the nature of the allegations and reply of the accused u/s 251 CrPC, this Court directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
10. As the reply to notice by accused revealed specific defense, the accused was allowed to cross examine the Digitally CT Case -22416/2019 signed by komal Pagekomal Date:
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complainant's witness under section 145(2) NI Act. Thereafter, the matter was fixed for complainant evidence.
11. On 28.11.2022, the complainant appeared himself as CW-1 in the witness box in order to give his testimony. He tendered his evidence by way of affidavit bearing Ex.CW1/2. Ex.CW1/1 is the present complaint. He relied upon documents which are Ex.CW1/A (cheque in question), Ex.CW1/B (return memo), Ex.CW1/C (legal notice), Ex.CW1/D (postal receipt), Ex.CW1/E (tracking report), Ex.CW1/F (Certificate u/s 65-B of Indian Evidence Act), Ex.CW1/G (Additional affidavit dated 21.12.2020), Ex.CW1/H (Photocopy of consolidated receipt) and Mark-A (Photocopy of cheque no. 007554). CW-1 was examined-in-chief and on the same date i.e. 17.01.2023, he was duly cross examined and discharged. In his cross-examination, CW-1 deposed that neither he knows the name of the wife of the accused nor he knows the number of kids of the accused.
12. The complainant, in support of his case also examined, Sh. Sushil Kumar, Officer at Punjab National Bank, Aaya Nagar, Delhi as CW-2 who brought the summoned record i.e. Account Statement of complainant (Ex.CW2/A) and authority letter dated 18.12.2019 (Ex.CW2/B). The witness was shown return memo dated 06.06.2019 (Ex.CW2/C) to which he replied that return memo dated 06.06.2019 was issued by him and bears his signature at point A'.
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13. The complainant, in order to support his case also examined Ms. Asha, W/o Girish Chandra as CW-4 who tendered her evidence by way of affidavit i.e. Ex.CW4/1. She deposed that Ex.CW1/H bears her signature at point A. The witness was duly cross examined on 27.03.2023. During her cross examination, she stated that Ex.CW1/H was written by her and the same was dictated to her by her husband in the presence of Mr. Brahmprakash in the drawing room of the second floor of her house. She further stated that Ex.CW1/H bears her sign.
14. The complainant, in order to support his case also examined Brahamprakash, S/o Lakmichand as CW-5 who tendered his evidence by way of affidavit i.e. Ex.CW5/1.
Witness stated that Ex.CW1/H was prepared on 30.12.2017 on second floor in the drawing room of Mr. Girish' house and the same bears his signatures at point B and signature of accused at point C.
15. The said witnesses were duly cross-examined and discharged. Since no other witness was left, evidence on behalf of the complainant was closed and the matter was fixed for statement of the accused.
16. Thereafter, the matter was fixed for recording statement of the accused under Section 313 Cr.P.C. On 07.08.2023, statement of the accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded whereby circumstances appearing against him in evidence were put to him to which he stated that the Digitally signed by komal CT Case -22416/2019 komal Date:
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complainant is not known to him. He had never met the complainant before meeting him in Court. He further denied taking any loan or any amount from the complainant. He stated that his four cheques were misplaced and out of which one is the cheque in question. He further denied knowing either Bramprakash or Devki Devi. Accused further expressed his desire to lead defence evidence.
17. Thereafter, the matter was fixed for defence evidence. The accused, in support of his case examined Mr. Narayan Dutt Badhani, Officer at Almora Urban Co-operative Bank Ltd., Head Office, Lala Bazar Almora, Uttrakhand as DW-3 in his defence who brought the summoned record i.e. attendance register bearing Ex.DW3/1 and bank vouchers bearing Ex.DW3/2. The witness deposed that he had authorised the accused for doing work done by him on 30.12.2017. The witness proved that the accused has signed the attendance register on 30.12.2017 at Point X by showing Ex.DW3/1. He further proved that the accused has transferred money to Ms. Lata Kanoj on 30.12.2017 and his name is written at Point Y by showing Ex.DW3/2.
18. The said witness was duly examined-in-chief, cross- examined and discharged. Thereafter, defence evidence was closed vide order 01.0.2024. and the matter was listed for final arguments. Rival submissions were heard on behalf of both the parties.
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19. Final arguments were advanced on behalf of both the parties.
20. Counsel for the complainant had argued that the complainant shared close friendly relations with the accused and on request, to settle some official deficiencies complainant had given a sum of Rs. 56,86,723/- to the accused. Counsel for the complainant stated that the accused had returned Rs. 3,75,300/- and in the month of December 2018 the accused had issued three cheques including the cheque in question to return the money. Counsel for the complainant argued that the accused had admitted his signature on the cheque in question, which was dishonoured and the legal demand notice was also served on him. Complainant contends that since all the requirements of Section 138 NI Act were fulfilled with in the present case hence, the accused be convicted.
21. Counsel for the accused has, on the other side argued that the complainant has filed a false and fabricated case against him. Counsel for the accused submitted that he does not know the complainant and had met him first time on being appeared before this court. Counsel for the accused further submitted that the accused never took any financial help from the complainant and he does not know how the cheque in question came in the possession of the complainant. Counsel for the complainant argued that the complainant had misused the cheque in question Digitally signed by komal komal Date:
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CT Case -22416/2019 Girish Chandra Vs. Manoj Khulbay Page 8 of 19 9 to file the present case as the same was misplaced by him. Hence, the present case deserves to be dismissed. POINTS OF DETERMINATION
22. The following points of determination arise in the present case.
1. Whether the complainant has been successful in raising the presumptions under Section 118 read with Section 139 of NI Act.
2. If yes, whether the accused has been successful in raising a probable defence?
THE LAW APPLICABLE
23. On perusal of record, and after giving my thoughtful consideration to the final submission of the parties, this court would like to narrate the legal principles relevant for adjudication of complaint under section 138 of NI act briefly, before appreciating the evidence led on behalf of both the parties.
24. The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2020 SCC OnLine SC 491 at page 422 held as follows:
(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. Digitally signed by komal komal Date:
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(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.
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, Section 139 imposed an evidentiary burden and not a persuasive burden.
25. The three-judge bench of the Hon'ble Supreme Court in Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held 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."
26. The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
POINT OF DETERMINATION NO. 1:
27. The signature on the cheque in question bearing Ex.CW1/A is admitted by the accused. The aforesaid cheque in question was returned vide return memo bearing Ex.CW1/B. The Digitally signed by komal komal Date:
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legal notice bearing Ex.CW1/C was sent to the accused vide postal receipt bearing Ex.CW1/D. The tracking report Ex.CW1/E indicates 'item delivery confirmed'. The receipt of legal demand notice has been admitted by the accused during the trial and the same was replied to the complainant by him. Thus, the presumption under Section 27 of General Clauses Act can be raised that the legal notice was received by the accused person in view of the law laid down in C.C. Alavi Haji vs Palapetty Muhammed & Anr (supra). The plea of the accused regarding the non-receipt of the legal notice is accordingly rejected as being inconsequential.
28. The ingredients necessary for raising the statutory presumptions being fulfilled, the presumptions under sections 139 and 118, NI Act that the cheque in question was issued for a legally recoverable debt/liability stands activated.
29. Accordingly, the point of determination no.1 is decided in the affirmative.
POINT OF DETERMINATION NO. 2:
30. The burden to disprove the existence of legal liability is upon the accused. This may be done by poking holes in the case of the complainant or by leading positive evidence in defence.
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31. The case of the complainant is that the cheque in question was issued by the accused to repay the remaining balance advanced by the complainant as a friendly loan.
32. The complainant examined himself as CW-1 and in his cross examination it had emerged that the accused is known to him since January-February 2014 after meeting him through his cousin brother namely Bansidhar Kandpal. He stated that he earned net profit of Rs. 4 lakhs to Rs. 5 lakhs in between 2014 to 2016. He deposed that the accused had transferred to his bank account a sum of Rs. 4,50,000/- but denied receiving Rs. 3,75,000/- in cash from the accused. The complainant admitted receiving the cheque in question from the accused on 30.12.2017 mentioned in Ex.CW1/H (OSR) and as asked by the accused he had presented the same after one year. The complainant had denied all the suggestions put to him regarding fabricating Ex.CW1/H (OSR) in collusion with his wife along with Mr. Bansidhar and non-issuance of cheque in question by the accused to him.
33. The complainant got his wife examined as CW-4 who stated that cheque in question along-with original cheque bearing no.007554, copy of which bearing Mark A was given by the accused to the complainant in her presence. She testified that she knew the accused for the last seven to eight years and on 30.12.2017 the accused executed Ex.CW1/H (OSR) at their house. She denied all the suggestions put to her proposing that Digitally signed by komal CT Case -22416/2019 komal Date:
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34. The complainant also got examined Mr. Brahmpraksh as CW-5 who stated that cheque in question along with Mark A was given by the accused to the complainant in his presence. He admitted that Ex.CW1/H (OSR) was executed at the house of the complainant which was signed by him as a witness. He testified that he had given Rs. 4 lakhs to the complainant to help the accused financially. He denied all the suggestions implying that accused never came to the house of the complainant on 30.12.2017 as he was on duty at Uttarakhand.
35. To lead his evidence, the accused got the bank official examined as DW-3 who stated that the accused had reported on duty at the bank located in Uttarakhand as can be seen from attendance register Ex.DW3/1 (OSR)(colly) and bank vouchers Ex.DW3/2 (OSR). From his cross-examination, it had emerged that the accused was working with him in the Almora branch as an accountant and he does not remember whether in the year 2014 the attendance was done using biometrics or not. He deposed that there are few vouchers which are either signed by three or two officers. He further deposed that he can identify only the handwriting or signatures of the accused and not of other accountants. He denied all the suggestions put to him regarding the absence of any authority from the concerned bank to depose Digitally signed by komal komal Date:
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CT Case -22416/2019 Girish Chandra Vs. Manoj Khulbay Page 13 of 19 14 before this court and that the accused had subsequently signed the documents to create false evidence of his plea of alibi.
36. The primary defence of the accused is that there is no friendly relationship with the complainant as he does not know the complainant and had met him for the first time in the court itself. However, it is pertinent to note that the accused had admitted before the court that he had transferred an amount of Rs. 4,50,000/- to the complainant. It is beyond any reason why would an individual transfer a considerable sum of Rs. 4,50,000/-
in the bank account of a stranger without having any significant transaction with him. The explanation offered by the accused that he had done so as asked by Mr. Bansidhar does not inspire confidence in absence of any tangible evidence to prove the same. No evidence has been led either by filing any relevant documents or by examining material witness. Further, the cheque in question duly signed by the accused was in the possession of the complainant. Accordingly, this defence of the accused is rejected as it stands not proved.
37. The second line of defence of the accused is that complainant had filed a false case since he did not had the financial capacity to advance Rs. 56,86,723/- on the date of the alleged transaction. Accused contends that the complainant had not filed any documents to prove his financial capacity or to show that he had actually transferred the said amount to him. Perusal of the record shows that the complainant had filed his Digitally signed by komal CT Case -22416/2019 komal Date:
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Girish Chandra Vs. Manoj Khulbay Page 14 of 19 0500 15 bank account statement and was willing to a file copy of his ITR, as noted in his cross-examination, of the relevant period to prove his financial capacity. Since the accused himself did not ask for the same to be placed on record so, later he cannot take the defence of absence of the financial capacity of the complainant on non-filing of his ITR. Therefore, this defence of the accused is rejected as it neither inspires confidence nor stands proved.
38. The third line of defence taken by the accused is that the complainant had forged Ex.CW1/H (OSR) dated 30.12.2017 to file the present case as the same does not bears his signature since, he was not present in Delhi on 30.12.2017. According to the accused, he reported to his work on the said date which was in Uttarakhand and to prove the same he had examined DW-3. The official witness DW-3 had produced the attendance register Ex.DW3/1 (OSR)(colly) which bears the signature of the accused at point X and on vouchers Ex.DW3/2 (OSR)(colly) with the name of the accused at point Y. Perusal of attendance register Ex.DW3/1 (OSR) (colly) shows that the register is being maintained date wise and in continuity with signatures of other employees. The signature at point X of Ex.DW3/1 (OSR) (colly) on being carefully examined appears to be same as signatures done on the other dates, which are not in dispute. Also, on being compared with the signatures done by the accused on notice framed under Section-251 of Cr.PC before this court the same are found to be similar in appearance. The genuineness of the signature is further fortified from the fact that the document Digitally signed by CT Case -22416/2019 komal komal Date:
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Ex.DW3/1 (OSR) (colly) is an official document, which is properly maintained and has been brought by an official witness of a public bank. No evidence has been led by the complainant to prove the allegation made by him. All this creates doubt upon the authenticity of Ex.CW1/H (OSR) and the case of the complainant. In view of above, the authenticity and genuineness of the vouchers Ex.DW3/2 (OSR) (colly) need not be decided as the same has become futile.
39. As far as testimony of CW-4 and CW-5 are concerned, the complainant had questioned the authenticity of the testimonies of both the witnesses CW-4 as well as CW-5, as they are wife and brother-in-law of the accused respectively. Hence are interested witnesses as a result of which they are deposing to favour the accused.
40. It is well settled in law that the evidence of a witness cannot be discarded merely on the ground that he or she is a related or interested witness. However, it is also well settled rule of prudence that the evidence of a related or interested witness should be examined very meticulously. The entire complainant evidence will be examined based on the testimony of all the witnesses including interested witnesses along with other evidence on the record.
41. Here, both the witnesses have stated on similar lines that they had signed Ex.CW1/H (OSR) and accused had also signed Digitally signed by komal komal Date:
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CT Case -22416/2019 Girish Chandra Vs. Manoj Khulbay Page 16 of 19 17 the same in their presence. Apart from their mere statements there is nothing on record which corroborates the case of the complainant and the same is also found to be in contradiction with the original documents placed on record by DW-3. Hence, the testimony of CW-4 and CW-5 are rejected as doubt is created upon the same from the reasoning and facts observed as above.
42. The last defence taken by the accused is that the cheque in question was misplaced by him and had been misused by the complainant to file a false case against him. The accused stated that he had filed a complaint with the police for the same at PS Dwarahat on 01.10.2014. To prove the same, he had called the records from PS Dwarhat and the official was summoned by this court. In return, this court had received letter dated 10.03.2024 from PS Dwarahat where it has been informed that in the year 2014 all the records were maintained manually and the same were destroyed after the decision taken by the committee formed on 19.01.2021.
43. The defence of the accused that the cheque in question had been misplaced and the same has been misused by the complainant has been consistent throughout the trial. His defence has not only been consistent but he had taken all the necessary steps to probe this defence. Although there is no complaint on record to prove the same as the same has been destroyed by the authorities itself, in which the accused had no role. All this shows that the accused took all the necessary steps which any CT Case -22416/2019 Digitally Girish Chandra Vs. Manoj Khulbay Page 17 of 19 signed by komal komal Date:
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reasonable man would take when his cheque was misplaced and cast doubt upon the case of the complainant.
44. In the present case the accused has raised probable defence and has discharged the burden upon him. While at the same time complainant has failed to prove positively that there exists a legal debt upon the accused and that the cheque was issued to return the alleged friendly loan. The complainant had failed to prove the existence of legal debt and the issuance of the cheque in question to discharge any legal liability once the evidential burden shifts back to the complainant.
45. Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the complainant had not been able to discharge his burden.
46. In this case, the accused had successfully rebutted the presumption of consideration by raising a doubt on the very factum of the existing of legal debt or issuance of the cheque in question for the same. The accused had clearly presented a case which puts the complainant case in serious doubt. And as per the settled law, this is all that is required, as preponderance of probabilities is not a rigorous standard of proof, but only requires by way of evidence to make the court lean towards one side and not the other. Consequently, the benefit of doubt must go to the accused.
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47. Accordingly, in light of the aforesaid discussion, the point of determination no.2 is decided in the affirmative.
VERDICT
48. In view of the foregoing discussion, the present case appears to be a fit case where benefit of doubt can be extended to the accused, as he had succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmative.
49. Accordingly, this court holds that accused Manoj Khulbay stands acquitted for the offence under Section 138 NI Act qua the cheque in question in the present case.
Announced in the Open Court on this 14th October, 2024. This Judgment consists of 19 signed pages. Digitally signed by komal komal Date:
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(KOMAL) JMFC(NI Act)-08,South Saket/NewDelhi/14.10.2024 CT Case -22416/2019 Girish Chandra Vs. Manoj Khulbay Page 19 of 19