Delhi District Court
Rajesh Kumar Yadav vs . Sandeep Acharya Page 1 Of 12 on 15 March, 2023
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 15917/2018
CNR NO.: DLND02-017682-2018
Rajesh Kumar Yadav
S/o Raghuveer Singh Yadav
R/o WZ-76, 1st floor,
Todapur, New Delhi-110019
......Complainant
versus
Sandeep Acharya
S/o Sh. Gopendra Mohan Acharya
R/o 1199-A, Gatashram Tila Mandir
Vishram Ghat, Mathura, U.P-281001
........Accused
JUDGMENT
Date of Institution of Complaint : 05.11.2018 Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 25.02.2023 Decision Qua Accused : Conviction Date of Decision : 15.03.2023 BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgment, I shall dispose of the present complaint u/s. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) filed by the complainant against accused on account of dishonour of cheque bearing no. 066958 for a sum of Rs. 4,00,000/- dated 29.09.2018 drawn on CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 1 of 12 Syndicate Bank issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
2. Brief facts of the case as per the complaint are that the accused was in acute financial crises in the year 2017 and demanded friendly loan of Rs. 6,00,000/- from one of his cousin brother, namely Sh. Krishan Bihari Sharma. At that time, Sh. Krishan Bihari Sharma had only two lacs and the same was given to the accused through cheque. It is further submitted that the accused was requested to complainant friend Krishan Bihari Sharma for arranging an additional sum of Rs. 4,00,000/- and then he approached the complainant to pay Rs. 4,00,000/- to the accused. It is further stated that the complainant had given friendly loan of Rs. 4,00,000/- to the accused on request of one friend of complainant, namely Sh. Krishan Bihari Sharma.
3. It is further submitted that in order to discharge his legal liability, the accused handed over the cheque in question but the same was returned dishonoured with remarks "Funds Insufficient" vide cheque return memo dated 05.10.2018. That thereafter, a legal notice was sent to the accused dated 12.10.2018 and since no payment was made within 15 days of the service of legal notice, then the present case has been filed.
4. Pre-summoning evidence was concluded on 12.03.2019 and summons were issued to accused on the very same day. The accused appeared in person on 09.12.2019 and furnished personal bond on the same day.
5. A notice explaining the accusation to the accused u/s. 138 of N.I.Act was served on 09.12.2019 and his plea was recorded. The accused pleaded not guilty and claimed trial. The accused CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 2 of 12 admitted to his signatures on the cheque in question and also admitted receipt of legal demand notice. Accused denied having filing particulars on the cheque in question. It is the case of the accused that he had taken a sum of Rs. 2,00,000/- as friendly loan from his cousin, namely Sh. Krishan Bihari Sharma and additionally he had taken a sum of Rs. 4,00,000/- from the complainant on 10.10.2017. He has further stated that he used to pay the monthly interest of Rs. 12,000/- through an uncle of Sh. Krishan Bihari Sharma who used to reside in Mathura near his residence. It is further his case that accused has repaid a sum of Rs. 2,00,000/- towards present transaction to the said uncle Sh. Krishan Bihari Sharma and as on date the entire liability towards both the persons including the complainant and Sh. Krishan Bihari Sharma is only Rs. 4,00,000/-. However, both these persons have filed separate cases against him seeking a total sum of Rs. 6,00,000/-. It is further his case that he has given four signed blank cheques as security to the complainant which was handed over to Sh. Krishan Bihari Sharma.
6. Oral application u/s. 145(2) N.I.Act moved on behalf of the accused was allowed vide order dated 09.12.2019. During complainant's evidence (CE), the complainant has examined himself as CW1, who has relied relied upon his evidence by way of affidavit and has relied on the following documents:-
1. Bank Account Statement in- Ex-CW1/1 cluding transaction in question
2. Original Cheque in Question Ex-CW1/2 4 Original Bank Return Memo Ex-CW1/3
5. Legal Demand Notice along- Ex-CW1/4 with speed post receipts CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 3 of 12
7. CW1 was partly cross examined by Ld. counsel for the accused on 12.02.2020. The right of the accused for remaining cross-examination of the complainant was closed vide order dated 08.04.2022, when despite repeated opportunities, the accused did not conduct the remaining cross-examination of the complainant. Since no other witness was sought to be examined on behalf of complainant, accordingly, CE was closed vide separate statement of complainant recorded on 08.04.2022.
8. Accused was thereafter examined u/s. 281 r/w. Section 313 CrPC on 08.08.2023, and the entire incriminating evidence was put to him. During statement of the accused u/s 313 CrPC, the accused admitted to his signatures on the cheque in question, however, denied having filled the particulars on the same. The accused also denied the receipt of legal demand notice, however, admitted that the address mentioned on the same is his correct address. The accused further admitted the receipt of the loan amount of Rs.4,00,000/- from the complainant on 10.10.2017. He has additionally stated that he had given three security cheques to the complainant, out of which one is the cheque in question. He has given Rs. 1,75,000/- in cash to the maternal uncle of the complainant in part discharge of his liability towards the complainant before the institution of the case.
9. Matter was adjourned for defence evidence as the accused chose to lead DE. However, when despite repeated opportunities, no DE was led on behalf of the accused then the right of the accused to lead DE was closed vide order dated 15.10.2022.
10. Thereafter, an application u/s. 311 CrPC was filed on behalf of the accused seeking permission of this court to examine CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 4 of 12 one witness, namely, Sh. Chetan Sharma as a witness for the defence and the said application was allowed vide order dated 13.01.2023 of this court. Sh. Chetan Sharma was examined by the accused as DW-1. He has been duly cross examined on behalf of the complainant and discharged. Accused has sought not to examine any other witness & DE was closed vide his statement dated 19.01.2023 and matter was adjourned for final arguments.
11. Final arguments were heard by this court on 25.02.2023 on behalf of the complainant. Despite opportunity, no final arguments were advanced on behalf of the accused neither any written submissions have been filed on behalf of the accused. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
12. At the very outset, it is pertinent to lay down the ingredients of the offence u/s. 138 of NI Act. In Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 5 of 12
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
13. Ld. Counsel for the complainant has submitted that there exists legally enforceable liability in favour of the complainant on the basis of bank account statement which is Ex-CW1/1, presumption under section 139 NI Act and also on the basis of the averments made in the complaint and the evidence by way of affidavit. He has further submitted that the cheque in question was issued to the complainant by the accused in discharge of legally enforceable debt or liability and the dishonour of the said cheque is proved by bank return memo already placed on record. Further, legal demand notice has been duly served on the accused. He has further submitted that the complainant received no payment within 15 days of the service the legal notice. Ld. Counsel for complainant has thus submitted that all the ingredients laid down u/s. 138 NI Act are fulfilled and the CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 6 of 12 accused should be convicted.
14. Before moving forward with the contentions of the accused, it is pertinent to discuss the relevant provisions of law which deal with legally enforceable debt or liability under the NI Act which are section 118(a) and 139 of the NI Act. Section 118(a) of the NI Act deals with the presumption of consideration and section 139 of NI Act deals with presumption of legally enforceable debt or liability and reads 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
***
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."
15. It is further pertinent to mention the relevant judgments on the point of presumption of legally enforceable debt or liability. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has been held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 7 of 12 been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
16. In the facts of the present case, the signatures on the cheques in question have been admitted. Accordingly, this court raises presumption under section 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
17. In the facts of the present matter, the accused has already admitted receipt the loan amount of Rs. 4,00,000/- from the complainant. Moreover, the same is also proved by bank account statement placed on record as Ex-CW1/1. However, the primary defence taken by the accused is that he has repaid part of the amount to the complainant and hence, there is no legally enforceable debt or liability in favour of the complainant equivalent to the amount of cheque in question.
18. It is the case of the accused that the witness who has deposed as DW-1 has supported his case and has proved the said repayment to the maternal uncle of his cousin. He has further submitted that the said sum of money was to be paid to the complainant qua the transaction in question.
CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 8 of 1219. Per contra, Ld. Counsel for complainant has submitted that the witness DW-1 has nowhere stated in his examination in chief that the said amount was supposed to be given to the complainant in the present matter and he has only submitted that he had given total sum of approximately Rs. 6,00,000/- to the wife of one Sh. Hari Om Sharma. Ld. Counsel for complainant has further submitted that during cross-examination also, the witness has stated that as per his knowledge one installment for a sum of Rs. 40,000/- was to be given to one Mr. Rajesh. It is further stated by him that both of these are not same person that complainant is not the same Rajesh as testified about by the witness. In such circumstances, he has submitted that accused has failed to prove that any repayment of said loan has been made by him to the complainant.
20. Bofore moving both arguments of both the parties in this regard, it is pertinent to note the relevant portion of the examination-in-chief and cross-examination of DW-1:
"I know accused since my childhood. At one point of time, I went alongwith the accused and handed over a sum of Rs. 50,000/- to the wife of doctor Hari Om Sharma at Goverdhan Road, Vasundhara Panchsheel Colony, Mathura. Thereafter I have handed over three installments of Rs. 40,000/- each to the wife of doctor Hari Om Sharma at Goverdhan Road, Vasundhara Panchsheel Colony, Mathura. The accused did not accompany me at the time of giving these three installments and the said sum was handed over to me by the accused. Thereafter, I went alongwith the accused and handed over a sum of Rs. 4,00,000/- to Rs. 4,25,000/- to the wife of doctor Hari Om Sharma at Goverdhan Road, Vasundhara Panchsheel Colony, Mathura. I do not remember the date of any of these transactions.CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 9 of 12
*** Out of three installments of Rs. 40,000/- each, two were supposed to be given to Krishna and one was supposed to be given to Mr. Rajesh. I do not know who was supposed to receive the above stated sum of Rs. 50,000/- or the amount of Rs. 4,00,000/- to Rs. 4,25,000/-. I had just accompanied the accused at the time of payment of Rs. 50,000/- or the amount of Rs. 4,00,000/- to Rs. 4,25,000/-. It is wrong to suggest that the abovesaid payment of Rs. 40,000/- was not supposed to be given to the complainant in the instant case. It is further wrong to suggest that the person Rajesh that I am deposing about is not the same as the complainant in the present case. I had not personally counted the said sum of Rs. 40,000/-, however, I am sure that the packet contained a sum of Rs. 40,000/-. It is correct that I have not taken the acknowledgment of any person at the time of handing over the installments. It is wrong to suggest that I do not know the accused. It is further wrong to suggest that I am deposing at the instance of the accused. It is further wrong to suggest that I am a planted witness. It is further wrong to suggest that I am deposing falsely."
21. The accused was to prove repayment of money to the complainant qua the loan in question. Before moving further with the evidence on record in regard to the same, it is pertinent to note the contradictions in the version of the accused in the present matter. The first contradiction in the defence taken by the accused is that the accused has stated in his plea of defence at the time of framing of notice that he had given a total of four security cheques to be given to the complainant to his cousin, namely, Sh. Krishan Bihari Sharma. However, in his statement u/s. 218 r/w. Section 313 CrPC, the accused has stated that he had given three CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 10 of 12 cheques for security purposes to the complainant. Another contradiction in the case of the accused is that the accused has stated in his plea of defence at the time of framing of notice that he has repaid a sum of Rs. 2,00,000/- to both the complainant and Sh. Krishan Bihari Sharma jointly. However, in his statement u/s. 218 r/w. Section 313 CrPC, the accused has stated that he has paid a sum of Rs. 1,75,000/- only. Third contradiction in the case of the accused is that the accused has stated in his plea of defence at the time of framing of notice that he has received the legal demand notice. However, in his statement u/s. 218 r/w. Section 313 CrPC, the accused has stated that he has not received the legal demand notice from the complainant.
22. In regard to the defence taken by the accused that he has made part repayment of the loan amount, I have carefully perused the testimony of the witness Sh. Chetan Sharma who has deposed as DW-1. The witness has at best testified that he has given a sum of Rs. 40,000/- to be given to the complainant to the wife of one Sh. Hari Om Sharma, purportedly the maternal uncle of Sh. Krishan Bihari Sharma. However, he has still not testified as to whether the complainant has actually received the said amount of Rs. 40,000/- or not. Furthermore, the amounts stated to be repaid by the accused at the time of serving of notice on him and in his statement u/s. 313 CrPC are Rs. 2,00,000/- and Rs.1,75,000/-, which are different then the amount testified to by the witness. Moreover, the witness has deposed to handing over of several other amounts also and he is not aware to whom they were supposed to be given. It is also a possibility that sums of money testified about by the witness pertains to a separate CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 11 of 12 transaction between the accused and Sh. Hari Om Sharma and has no relation with the transaction in question.
23. In the considered opinion of this court, there is nothing on record to even remotely suggest that the accused has repaid part of the loan amount and hence, the accused has failed to raise a probable defence and prove his defence on the basis of preponderance of probabilities.
FINAL ORDER
24. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has not been able to raise a probable defence and has not been able to prove his defence on the basis of preponderance of probabilities that there is no legally enforceable debt or liability in favour of the complainant and against him equivalent to the amount of cheques in question as on the date of its drawal or on the date of their presentation. Thus, the accused has not been able to rebut the presumption u/s. 118 r/w. section 139 NI Act and the complainant has been able to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question.
25. In view of the aforesaid, accused Sandeep Acharya, s/o Sh. Gopendra Mohan Acharya, is hereby convicted of offence under section 138 Negotiable Instruments Act.
Note: This judgment contains 12 signed pages and each page has been signed by the undersigned.
Announced in Open Court (Anshul Singhal) on 15.03.2023 MM(N.I. Act)-03/NDD/RACC/ND CC No. 15917/2018 Rajesh Kumar Yadav vs. Sandeep Acharya Page 12 of 12