Delhi District Court
A K Mehra vs M/S Narain Jewellers on 1 October, 2011
1
IN THE COURT OF SH ANUJ AGGARWAL : METROPOLITAN MAGISTRATE - 03
SOUTH : SAKET COURT : NEW DELHI
A K Mehra vs M/s Narain Jewellers
CC No. 137/10
U/s 138 Negotiable Instruments Act
JUDGMENT
(1) Serial number of the case : 137/10
(2) Name of the complainant : Anil Kumar Mehra
(3) Name of the accused, 1. M/s Narain Jewellers
parentage & residential address : New Delhi House,
Barakhamba Road, New
Delhi110001
2. Amrit Narain Mehra
Karta, M/s Narain Jewellers
New Delhi House,
Barakhamba Road, New
Delhi110001
(4) Offence complained of or proved : 138 Negotiable
Instruments Act
(5) Plea of the accused : Pleaded not guilty
(6) Final order : Acquitted
(7) Date of Institution : 24/10/1997
(8) Date on which reserved for judgment : 23/09/2011
(9) Date of Judgment : 01/10/2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
1. Though the present complaint has been filed against accused no. 1 M/s Narain Jewellers, a joint Hindu firm and accused no. 2 i.e. Amrit Narain Mishra, karta of joint Hindu firm who is also the signatory of cheque in question, however, it A K Mehra vs M/s Narain Jewellers 2 is settled law that a joint Hindu firm is not a separate legal entity, therefore, cannot be sued. Hence this judgment be read qua accused no. 2 (the karta of accused no. 1 and signatory of cheque in question) only. The complaint was filed by Sh Sudhir Kumar Mehra, the Power of Attorney holder on behalf of complainant Sh A K Mehra. As per the averments made in the complaint, accused no. 1 is a joint Hindu firm and accused no. 2 is the karta of the said firm. The complainant had granted loan to accused no. 1 on demand of accused no. 2 for Rs.45,000/ (though vaguely written at para 4 of complaint, it appears from the averment that the said loan was granted by way of a cheque which was drawn on UCO Bank, Chandni Chowk, Delhi). When complainant requested the accused to pay his loan amount, the accused issued one cheque bearing no. 511870 dated 31/03/1997 (signed by accused no. 2) drawn on the Catholic Syrian Bank Ltd. Thereafter, the complainant presented the cheque in question to his banker but the same was dishonoured for the reason "Insufficient Funds" vide return memo dated 22/08/1997. The complainant made a demand for payment of the said amount of money by giving a Demand Notice dated 02/09/1997 to accused. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within stipulated time. Thereafter, the present complaint was filed U/s 138 of Negotiable Instruments Act, 1881 (hereinafter "the Act") against the accused.
2. The court took cognizance of the offence U/s 138 of the Act and on being satisfied that the complainant has a prima facie case against the accused, the court summoned the accused for offence U/s 138 of the Act.
3. Accused appeared pursuant to the summons issued by the court and A K Mehra vs M/s Narain Jewellers 3 was admitted to bail. On 03/07/1999, the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, apart from the bank witnesses (of drawer bank and drawee bank) who are formal in nature, AR of the complainant was examined as the only material witness to prove complainant case.
5. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer him explanation. In his statement U/s 313 CrPC recorded on 04/08/2004, it was stated by the accused that signature on cheque ExPW1/B were his but the other details were not filled by him. He further stated that cheque ExPW1/B was not issued in discharge of any liability as the cheque was to be deposited by the complainant only after the supply of jewellery by the complainant. Accused further stated that he gave a blank cheque to the complainant
6. Perusal of file reveals that AR of the complainant i.e. Sh Sudhir Mehra was examined in chief on 05/03/2001 and his cross was deferred for next date and thereafter, he was cross examined partly on 13/10/2003 on which date, it was deposed by him that he owns contents of his complaint including para 4. It would be relevant to mention here that at para 4 of the complaint, it has been averred though not in very clear terms that the loan of Rs.45,000/ was given by complaint to accused by way of cheque drawn on UCO Bank, Chandni Chowk, Delhi. It was further deposed by the witness that he does not remember the date, cheque no. and A K Mehra vs M/s Narain Jewellers 4 particulars of cheque mentioned in para 4 of the complaint. The witness denied the suggestion that no loan of Rs.45,000/ was ever given by complainant to accused by any cheque. Witness further deposed (voluntarily) that he produce the particulars of the cheque if directed. His cross examination was deferred for next date with directions to bring the particulars of the cheque. Record reveals that the matter was fixed thereafter for 14/10/2003 on which date AR of the complainant sought time as he could not get the particulars of the cheque as the complainant is out of station. Thereafter, record reveals that the matter got adjourned for a number of times. Record further reveals that on 21/07/2004, complainant's evidence was closed on the request of AR of complainant who had stated that no further witness are to be examined by him.
7. Therefore, what is clear that AR of complainant instead of complying with the direction regarding bringing the particulars of cheque by which the alleged loan was given by complainant, chose to close his evidence without putting himself for his further cross examination. It is a settled law that the testimony of the witness cannot be read into evidence unless he is put to cross examination which is the most valuable right of accused in a criminal trial.
8. Apex court in Jayendra Vishnu Thakur vs State of Maharashtra decided on 11/05/2009 held that : "A right to cross examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examinationinchief, cross examination and reexamination. Section 138 of the Evidence Act confers a right on the adverse party to cross examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But A K Mehra vs M/s Narain Jewellers 5 indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be curved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication".
9. Therefore, the testimony of AR of complainant cannot be read into evidence as he chose not to put himself for his further cross examination and apart from his evidence, no other material witness has been examined to substantiate the averments as made in the complaint.
10. Even otherwise, a careful perusal of complaint reveals that there is nothing to suggest in the complaint that AR of the complainant was present at the time of alleged giving of loan by the complainant to the accused or at the time when the cheque was alleged to be issued by the accused for repayment of said loan. The present complaint is completely silent regarding the aspect as to how AR of the complainant came into the knowledge of the said transaction.
11. Be that as it may (even if for arguments sake), the examination in chief of AR of complainant is read, it clearly reveals that he has deposed only about the factum of dishonour of cheque and subsequent sending of demand notice to the accused only. Therefore what is evident that in the examination in chief, the AR of the complainant has not whispered anything about granting of alleged loan of Rs. 45,000/ by the complainant to the accused and subsequent issue of cheque by the accused for discharge of said loan meaning thereby the averment regarding the same as made in the complaint has remained unsubstantiated.
12. It seems that AR of the complainant was fully conscious of the fact that A K Mehra vs M/s Narain Jewellers 6 it is complainant A K Mehra who is the best witness to depose about the said transaction and not him. While holding so, I am fortified by the two applications which were moved by AR of complainant. First of such application is dated 09/12/2005 wherein it has been averred that the complainant is now settled in USA and for the proper disposal and in the interest of justice, he be allowed to file his affidavit evidence and his cross examination could be conducted by way of interrogatories by the accused. The said application was dismissed by my ld. predecessor vide detailed order dated 17/01/2007. Thereafter, AR of complainant moved another application dated 23/04/2007 with the prayer for recording evidence of complainant through video conferencing. The said application was also dismissed by my ld. predecessor vide detailed order dated 05/07/2010. Neither of the said orders were challenged by the AR for the complainant, therefore, attained finality.
13. Therefore, the aforesaid applications filed by AR of complainant leaves no doubt in my mind that it was the complainant who was the best witness in this case and AR of complainant had no personal knowledge of the transaction in question. However, complainant chose not to appear before this court for substantiating the averments as made in the complaint. Apex court in Janki Vashdeo Bhojwani vs Indusind Bank Ltd. AIR 2005 SC 439 has held that neither CrPC nor Negotiable Instruments Act contemplates that any one can depose for and on of behalf of complainant. Therefore, the Power of Attorney cannot depose on behalf of complainant but he can depose as a complainant witness.
14. Accused in his statement has already taken a specific defence regarding cheque in question and above discussion makes it clear that there is no A K Mehra vs M/s Narain Jewellers 7 iota of evidence against accused. Therefore, accused Amrit Narain Mehra stands acquitted of offence U/s 138 N I Act. Bail bond & surety bond of accused shall remain intact for a period of 06 months for the purpose of Section 437(A) CrPC. File be consigned to record room.
Announced in the open court on 01/10/2011 (ANUJ AGGARWAL) Metropolitan Magistrate 03/N I Act/South Saket Court/New Delhi Certified that this judgment contains 07 pages and each page bears my signature.
(ANUJ AGGARWAL) Metropolitan Magistrate 03/N I Act/South Saket Court/New Delhi A K Mehra vs M/s Narain Jewellers