Delhi District Court
Chaman Lal vs . Gaurav Vig on 3 January, 2018
IN THE COURT OF SHRI ARUN KUMAR GARG, METROPOLITAN MAGISTRATE(NI Act)-03 (SOUTH):SAKET COURTS:NEW DELHI CC NO: 470033/2016 Chaman Lal S/o Mr. Shakar Lal R/o B-4/156, IIIrd Floor, Safdarjung Enclave, New Delhi - 110029 ...............Complainant Versus Mr. Gaurav Vig S/o Sh. Pramod Vigilance C/o Mr. Ashok Kumar Bery R/o H. No.7H, Pocket-L, Sheikh Sarai-II, New Delhi - 110017 Also at: R/o H. No.37G, Pocket-L Sheikh Sarai-II, New Delhi - 110017 ................Accused Offence Complained of or proved : Under section 138 of Negotiable Instruments Act, 1881 Plea of the Accused : Pleaded not guilty Date of filing : 30.10.2015 Date of Institution : 02.11.2015 Date of reserving judgment/order : 18.12.2017 Final Order/Judgment : Acquitted Date of pronouncement : 03.01.2018 Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 1 of 30 JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. By this judgement, I will dispose of the present complaint filed by the complainant on 30.10.2015 on account of dishonour of cheque bearing no.102501 dated 29.06.2015 for a sum of Rs.5,00,000/-
drawn by accused in favour of complainant on his bank account maintained at Central Bank of India, Malviya Nagar, New Delhi (hereinafter referred as the "cheque in question").
2. Brief case of the complainant as per complaint is that the father-in- law of the accused being the close friend of complainant had approached the complainant for financial help for a sum of Rs.6,00,000/- in the end of December 2014 and on the assurance of accused to execute and handover the cheque in question, complainant gave a sum of Rs.5,00,000/- to the father-in-law of the accused somewhere in the third week of January 2015 in the presence of accused and some other near and dears after arranging the same from his resources and from his son who is serving abroad. It is further the case of complainant that simultaneously the accused had executed and handed over the cheque in question Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 2 of 30 in discharge of liability of his father-in-law leaving the name and date blank with mutual understanding, authorizing the complainant to fill up the same as per his convenicene. The date of presentation of the cheque, according to the complainant, was extended from time to time and finally as per mutual discussion and commitments of accused to compensate the complainant for delay in payment of money, the cheque in question was presented by complainant for enashment on 16.09.2015, however, the same was returned unpaid with remarks "Funds Insufficient" vide return memo dated 18.09.2015, whereupon the legal notice of demand dated 01.10.2015 was sent by complainant to the accused at the correct address, however, when the notice was received back by him unserved, he has resent the notice with corrigendum notice dated 09.10.2015 at all known addresses of accused and the notice was duly served upon the accused on 10.10.2015 at one of his addresses, whereas, the notice sent to another address was received back unserved. Since, according to the complainant, the accused has failed to make the payment of cheque amount in question despite expiry of 15 days from the date of service of legal notice of Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 3 of 30 demand, he has committed the offence u/s 138 of NI Act, 1881.
3. Upon receipt of complaint, cognizance of the offence was taken and the accused was summoned vide order dated 02.11.2015. Accused entered his appearance through his counsel on 21.12.2015 and was admitted to bail vide order dated 14.01.2016. Notice under Section 251 CrPC was served upon the accused on 07.06.2016 and plea of accused was recorded. Accused did not plead guilty and claimed trial and has taken the defence that the complainant being the old friend of his father-in-law used to regulary visit the house as well as office of the accused alongwith his father-in-law. He had never issued the cheque in question to the complainant and same has been misused by complainant after filling in the name, date and amount. He has further taken the defence that that legal notice of demand was never received by him and that he has no legal liability towards the complainant against the cheque in question.
4. On an application of the accused u/s 145(2) of NI Act, accused was permitted to cross examine the complainant. Complainant adopted his affidavit Ex.CW-1/A, which was tendered by him in his pre- summoning evidence as his post summoning evidence and has Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 4 of 30 relied upon the following documents:
Ex. CW-1/A : Original cheque bearing no.102501 dated 29.06.2015 for a sum of Rs.5,00,000/- issued by accused in favour of complainant Ex. CW-1/B : Original cheque return memo dated 18.09.2015 in respect of cheque in question Ex. CW-1/C : Legal notice of demand dated 01.10.2015 Ex. CW-1/D : Returned envelope containing the legal notice.
Ex. CW-1/E : Corrigendum dated 09.10.2015 of legal notice of demand dated 01.10.2015 Ex. CW-1/F : Postal receipts regarding dispatch of corrigendum of legal notice.
Ex. CW-1/G : Internet generated delivery report of corrigendum to legal notice.
Ex. CW-1/H : Original returned envelope containing the aforesaid corrigendum to legal notice.
Ex. CW-1/I : Copy of alleged acknowledgement of his liability by father-in-law of accused before the SHO PS-Sarojini Nagar. Ex. CW-1/1 : Present Complaint u/s 138 of Negotiable Instruments Act.
It is significant to note that though in the examination in chief, complainant has referred to the documents as Ex.CW-1/1 to Ex.CW-1/9, however, the documents are actually Ex.CW-1/A to Ex.CW-1/I as mentioned hereinabove.
Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 5 of 30
5. Sh. Sampat Ram one of the relatives of the complainant has been examined by complainant as CW-2, who has tendered his evidence by way of affidavit Ex.CW-2/A and has supported the case of the complainant in his evidence by way of affidavit. Both CW-1 & CW-2 were duly cross examined by counsel for accused and thereafter, on a separate statement of complainant, CE was closed vide order dated 30.08.2017.
6. Accused were thereafter examined under Section 313 CrPC on 14.11.2017 wherein he has once again reiterated the defence taken by him during his plea u/s 251 CrP.C. and denied the issuance of cheque in question in favour of complainant. He has admitted his signatures on the cheque in question but denied that the remaining particulars in the cheque are in his handwriting. He further denied the receipt of legal notice of demand allegedly served by complainant on him. Accused chose to lead evidence in his defence and has examined hismself as a sole witness i.e. DW-1 in his defence after his application u/s 315 Cr.P.C. was allowed by the Court.
7. During his examination in chief DW-1 has once again re-affirmed Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 6 of 30 the defence raised by him during his plea u/s 251 Cr.P.C. and u/s 313 Cr.P.C. He was duly cross examined by counsel for complainant and thereafter, on a spearate statement of accused, DE was closed vide order dated 29.11.2017 and matter was fixed for final arguments. Final arguments on behalf of the parties have thereafter been heard on 18.12.2017.
8. It is submitted by Counsel for complainant that the complainant has been able to prove all the ingredients of offence u/s 138 of NI Act against the accused. He submits that since the accused has admitted his signatures on the cheque Ex.CW-1/A, there arises a presumption in favour of complainant u/s 118 & 139 of NI Act read with Section 4 of Indian Evidence Act and the onus to rebut the said presumption was upon the accused. He submits that the manner in which accused could have discharged his onus has been authoratitively laid down by Hon'ble Supreme Court in Hiten P Dalal Vs Bratindranath Banerjee (2001) 6 SCC 16 and Rangappa v. Sri Mohan, AIR 2010 SC 1898. According to him, the accused has failed to dischage his burden to rebut the aforesaid presumption as per the standard of proof required in terms of Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 7 of 30 aforesaid judgments. He submits that alleged defence of theft of blank signed cheque by complainant is not available to the accused once he has admitted his signatures on the cheque in question in the absence of any positive defence in this regard. He submits that accused has failed to lodge any complaint regarding theft of blank signed cheque and hence, an adverse inference needs to be drawn against the accused.
9. Besides, according to him, the complainant has been able to prove the service of legal notice of demand upon the accused in view of the law laid down by Hon'ble Supreme Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr AIR 1999 SC 3762 and C. C. Alavi Haji VS Palapetty Muhammed & Anr. JT 2007 (7) SC 498, since the notice was admittedly sent by the complainant to the correct address of father-in-law of accused. Besides, according to him, the said defence is not available to the accused since the accused has failed to tender the cheque amount to the complainant within 15 days of receipt of copy of legal notice alongwith summons of the Court.
10. Even otherwise, according to counsel of complainant, complainant Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 8 of 30 has been able to prove the liability of father-in-law of the accused to the extent of cheque amount in question towards the complainant by way of document Ex.CW-1/I wherein father-in-law of accused has admitted his liability towards several persons including the complainant and since the accused has failed to examine his father-in-law in his defence, an adverse inference needs to be drawn against him for withholding the best evidence. In support of his aforesaid submissions, counsel for accused has relied upon the judgment of Hon'ble Supreme Court in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Anr. (1968) 3 SCR 862 and the judgement of Hon'ble High Court of Delhi in Niranjan Kaur Vs. New Delhi Hotes Ltd. AIR 1988 Delhi 332.
11. He further submits that once the liability of father-in-law of accused towards the complainant to the extent of cheque amount in question has been proved by complainant, accused cannot escape from his liabiltiy u/s 138 of NI Act in view of judgment of Hon'ble Supreme Court in Anil Sachar & Anr. Vs. M/s. Shree Nath Spinners P. Ltd. And Ors etc 2011 (3) Criminal Court Cases 760 (SC) and I.C.D.S. Ltd. Vs Beena Shabeer & Anr. 2002 (3) JCC Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 9 of 30 1472.
12. Besides, according to him, the defence of the accused regarding theft of cheque in question by the complainant is liable to be rejected at once in view of the fact that accused has not lodged any police complaint nor has he explained as to why he had kept the blank signed cheque at his residence/office. In support of his aforesaid contention, he has relied upon the judgment of Hon'ble High Court in Puneet Kumar Aggarwal Vs. M/s. Imaginations Agri Exports & Others decided on 19.02.2013. He has thus prayed for conviction of the accused for the offence u/s 138 NI Act.
13. On the other hand, it is submitted by Counsel for accused that the Complainant has failed to prove on record the basic facts that the father-in-law of the accused had availed the loan of Rs.5,00,000/- from the complainant and accused stood as a guarantor for repayment of the same, in as much as, during his cross examination complainant could not prove the sources of funds to the extent of such huge amount of Rs.5,00,000/-. According to him, the complainant has taken a false plea that he had arranged the sum of Rs.3,00,000/- from his son who was leaving abroad and Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 10 of 30 the balance amount from his near and dears, in as much as, a bare perusal of his passport shows that he has never visited his son after the alleged demand of financial assistance by father-in-law of accused from him till the date when the alleged amount of loan was given by him to the father-in-law of the accused. Besides, according to him, the complainant could not give the details of names of his friends/relatives from whom the balance amount of Rs.2,00,000/- was arranged by him. It is further submitted by him that complainant has admittedly not disclosed the loan in question in his ITR and the bare perusal of ITR of relevant year shows that his income of complainant during the aforesaid year was Rs.3,00,000/- and hence, he could not have advanced the loan of Rs.5,00,000/- on his own. He submits that complainant has not even informed the RBI regarding the alleged procurement of 5000 US Dollars by him from his son who was living abroad and has also not divulged the details of conversion of US Dollars into Indian currency during his cross examination.
14. Besides, according to him, the complainant has deliberately not sent the legal notice of demand to the correct address of the Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 11 of 30 accused despite the fact that the same was well within his knowledge which is apparent from the fact that within few days after alleged dispatch of legal notice of demand by complainant to the incorrect address of the accused, the present complaint has been filed by him mentioning the correct address of the accused and the complainant has failed to explain as to from where and when he had got the correct address of the accused as mentioned in the complaint.
15. The alleged document Ex.CW-1/I relied upon by complainant, according to counsel for complainant, is forged and fabricated and the same has not been properly proved by the accused by examining the officials from PS-Sarajini Nagar. Besides, according to him, the testimonies of CW-1 and CW-2 are contradictory in material particulars as to the circumstances under which the cheque in question was allegedly given by accused to the complainant. He submits that though according to CW-1, when the cheque in question was handed over by accused to the complainant, date and name of payee was not mentioned in the same but according to CW-2, at the time of handing over the Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 12 of 30 cheque in question, the same was duly filled in. Thus, according to him, the complainant has failed to prove that the cheque in question was issued by accused in discharge of his liability or the liability of his father-in-law towards the complainant and hence, the accused is entitled to be accquitted of charges u/s 138 of NI Act. In support of his aforesaid submissions, counsel for accused has relied upon the following judgments:
I. K. Subramani Vs. K. Damodara Naidu 2015 (1) Criminal Court Cases 103 (SC) II. John K. Abraham Vs. Simon C. Abraham & Anr. 2014 (1) Criminal Court Cases 058 (SC) III. S. K. Jain Vs. Vijay Kalra 2014 (2) Criminal Court Cases 370 (Delhi) IV. Satish Kumar Vs. State of NCT of Delhi & Anr. 2014 (1) Criminal Court Cases 305 (Delhi) V. M/s. Ajaya Industries Vs. Gulshan Rai Malhotra 2014(1) Criminal Court Cases 530 (P&H).
16. In view of the aforesaid submissions made by both the parties, the following questions arise for determination by this court:
(a) Whether the complaint of the complainant is liable to be dismissed on account of nonservice of mandatory legal notice Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 13 of 30 of demand in terms of proviso (b) of Section 138 of NI Act?
(b) Whether the accused has been able to prove that cheque in question was not issued by the accused in favour of complainant in discharge of his or his fatherinlaw's liability towards the complainant?
I shall deal with the aforesaid questions in seriatum herein below:
(a) Whether the complaint of the complainant is liable to be dismissed on account of nonservice of mandatory legal notice of demand in terms of proviso (b) of Section 138 of NI Act?
17. A bare perusal of legal notice of demand as well as postal receipt Ex.CW1/C shows that the notice was sent by the complainant to H. No.37G, PocketK, Sheikh SaraiII, New Delhi 110017 and the same was received back by counsel for complainant unserved with the remarks that no person in the name of accused was residing at the said address. Immediately, on receipt of unserved notice, counsel for complainant has sent corrigendum Ex.CW1/E to the same address alongwith another address of fatherinlaw of the accused. The notice sent to fatherinlaw of the accused was allegedly delivered to the addressee on 10.10.2015 whereas the Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 14 of 30 notice sent to the address of accused i.e. H. No.K/37G, Sheikh SaraiII, New Delhi - 110017 was once again received back undelivered with the report that no person in the name of accused is residing at the said address. Interestingly, both the notices were sent by complainant on 01.10.2015 & 10.10.2015 respectively by mentioning the wrong address but in the complaint filed on 30.10.2015, the correct address of the accused i.e. H. No.37G, PocketL, Sheikh SaraiII, New Delhi - 110017 has been mentioned by complainant as opposed to the addresses mentioned in the notice Ex.CW1/C and corrigendum Ex.CW1/E. There is no averments in the complaint or evidence by way of affidaivt of the complainant as to when and how, the complainant has been able to procure the correct address of the accused after dispatch of legal notice Ex.CW1/C and corrigendum Ex.CW1/E. It appears that complainant had all along been in possession of correct address of accused, however, he did not dispatch the legal notice of demand to the correct address of the accused for reasons best known to him.
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18. Thus, in view of the aforesaid facts, the accused has been able to prove on the basis of material available on record that the legal notice of demand was never sent by complainant to the correct address of the accused and once the complainant has failed to prove that the legal notice of demand was sent by him through registered post/speed post at correct address of the accused, no presumption either in terms of Section 27 of General Clauses Act or in terms of Section 114 of Indian Evidence Act can be raised in favour of complainant regarding service of legal notice of demand upon the accused. In the absence of applicability of provisions of 114 of Indian Evidence Act and Section 27 of General Clauses Act, complainant cannot seek assitance from the observations made by Hon'ble Supreme Court in K. Bhaskaran's case (Supra) and in para no.17 of C. C. Alavi Haji's (Supra). What has been laid down by Hon'ble Supreme Court in aforesaid judgments is that once the complainant has been able to prove on record the dispatch of legal notice of demand by him to the correct address of hte Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 16 of 30 accused, formal proof of service of legal notice upon the accused may be dispensed with by the Court and accused cannot be permitted to take the plea of nonservice of legal notice of demand in the wake of presumption under Section 27 of General Clauses Act and 114 of Indian Evidence Act, if he fails to tender the cheque amount in question within 15 days of receipt of summons from the Court. Thus, giving of notice (meaning thereby dispatch of same to the correct address of accused) is mandatory in terms of proviso (b) of Section 138 of NI Act and in the absence of such notice, no cause of action in terms of Section 138 of NI Act, which arises only after expiry of 15 days from the date of service/deemed service of legal notice of demand, arises in favour of complainant for filing of the present complaint u/s 138 of NI Act. While taking the aforesaid view, I am supported by the judgment of Hon'ble Punjab & Haryana High Court in M/s. Ajaya Industries Vs. Gulshan Rai Malhotra (2014) 1 Criminal Court Cases 530 (P&H) wherein Hon'ble Punjab & Haryana High Court has upheld Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 17 of 30 the judgment of accquital passed by Trial Court for want of proof of dispatch of legal notice of demand by complainant to the correct address of accused after referring to the judgment of Hon'ble Supreme Court in C. C. Alavi Haji's case (supra).
19. So far as the dispatch of legal notice of demand by the complainant to the address of fatherinlaw of the accused is concerned, in my considered opinion, service upon fatherinlaw of the accused, even if assumed to have been proved, cannot be deemed to be service upon the accused in the absence of any specific authorization by the accused of his fatherinlaw to receive the notice on his behalf. The clue in this regard can be taken from the provisions of Section 61 & 64 Cr.P.C. which provides the manner in which summons can be served upon the accused. Section 64 of Cr.P.C. contemplates service of summons upon some adult male member of family of the accused residing with the accused. It is not the case of the complainant that accused had ever been residing with his fatherinlaw at the address H. No.7H, PocketL, Sheikh Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 18 of 30 SaraiII, New Delhi - 110017. In view of the aforesaid discussion, the first question is answered in affirmative.
(b) Whether the accused has been able to prove that cheque in question was not issued by the accused in favour of complainant in discharge of his or his fatherinlaw's liability towards the complainant?
20. Before adverting to the 2nd question, I would like to narrate the legal principles laid down by Hon'ble Supreme Court of India and various High Courts including our own High Court which one helpful in adjudication of a complaint u/s 138 of NI Act. In my considered opinion, it is now well settled that in case the accused admits his signatures on the cheque in question, there arises a presumption in terms of Sections 118(a) and 139 of the NI Act to the effect that the same was issued for valid consideration and in discharge of legally enforceable debt or liability. Though a Division Bench of Hon'ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 has observed that the presumption under Section 139 of the NI Act does not go to the extent of presuming the existence of a legally Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 19 of 30 recoverable debt, however in a later judgment titled as Rangappa v. Sri Mohan, (2010) 11 SCC 441 a larger Bench of Hon'ble Supreme Court has expressed its disagreement with the aforesaid view holding that there is also an initial presumption regarding the existence of legally recoverable liability under Section 139 of the NI Act. Further, it has been held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as the accused can rebut the same by placing reliance on the material brought on record by the complainant. It is also well settled legal position that the presumptions can be rebutted even by raising presumptions of facts and law on the basis of material available on record. The aforesaid propositions of law have been laid down by Hon'ble Supreme Court in M/s Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (1999) 3 SCC 35, Krishna Janardhan Bhat's case (Supra) and Rangappa v. Sri Mohan's case (Supra). It is further well settled in the aforesaid judgments that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 20 of 30 prove his defence beyond reasonable doubts.
21.Now let us examine the facts of case in hand in the light of aforesaid legal principles. In the present case, complainant has alleged that he had given a loan of Rs.5 lakhs to the fatherinlaw of the accused in the presence of the accused and some common friends, after arranging the same from his son and his resources and accused had simultaneously issued the cheque in question in discharge of the aforesaid liability by leaving the name of payee and date as blank. The accused has consistently taken the defence during his plea under Section 251 Cr.P.C, examination under Section 313 Cr.PC and examination under Section 315 Cr.PC that the cheque in question had never been given by him to the complainant as alleged by the complainant and the complainant seems to have taken away blank signed cheque of accused during one of his visits to the office of accused alongwith fatherinlaw of the accused. He has also denied his liability to the extent of cheque amount in question towards the complainant or that he had stood as guarantor for the sum of Rs.5 lakhs and issued the cheque in Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 21 of 30 question in favour of complainant.
22. Since the accused had admitted his signatures on the cheque in question, there arises a presumption in terms of Sections 118(a) and 139 of the NI Act that the cheque in question would have been issued by him in favour of complainant for consideration and in discharge of his legally enforceable liability towards the complainant. There can also be no dispute about the preposition of law that dishonor of cheque issued in discharge of liability of any person other than the drawer of cheque shall also attract the provision of Section 138 of NI Act. However, the presumption arising in favour of complainant in terms of Sections 118(a) and 139 of the NI Act is rebuttable in nature and in view of authoritative pronouncement of Hon'ble Supreme Court as well Hon'ble Delhi High Court relied upon by counsels for both the parties and referred to by this court in para no.20 of this judgment, the accused need not even step into the witness box for rebuttal of the said presumptions as the same can be rebutted by cross examination of complainant's witnesses and by relying upon the Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 22 of 30 material brought on record by the complainant himself.
23. Besides, the standard of proof required from the accused to rebut the presumption is preponderance of probabilities and accused is not required to prove his defence beyond reasonable doubts. In the case in hand, accused has cross examined the complainant at length on three dates and during his cross examination of complainant, accused has tried to elicit the information from the complainant regarding the source of funds from which the alleged loan of Rs.5 lakhs was given by complainant to the accused in as much as existence of liability of accused towards the complainant has been denied by the accused. The complainant has deposed during his cross examination that the fatherinlaw of accused alongwith accused had jointly requested for the loan amount in December 2014 and the loan was given by the complainant to the accused and his fatherinlaw around 2829 January, 2015. He has further deposed that part amount i.e. sum of Rs.3 lakhs, was given to the complainant by his son Vijender Kumar when the complainant had visited him abroad and that he had informed his Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 23 of 30 son that the same was needed by him for the purpose of giving of loan to accused and his fatherinlaw. During his cross examination dated 19.09.2016, complainant had produced the copy of his passport which is Ex.CW1/D1 which shows that the complainant departed from India from New Delhi on 23.12.2015 and came back to India on 26.02.2016. A perusal of the passport further shows that the complainant had also visited US during 10.04.2014 and 05.08.2014. No other endorsement regarding any other visit of the complainant to US during December 2014 to February 2015 can be found on the passport Ex.CW1/D1.
24. The aforesaid facts expose the falsity of case set up by complainant regarding grant of loan of Rs.5 lakhs by him to the accused and his fatherinlaw in the month of January 2015 after procuring a sum of Rs.3 lakhs from his son by visiting abroad. It is the case of the complainant that the accused and his fatherinlaw have approached him for the loan in the month of December 2014 and hence there would not have been any occasion for the complainant to bring the sum of Rs.3 lakhs from his son during his visit to US Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 24 of 30 between 10.04.2014 to 05.08.2014 by informing his son that the same is required for giving loan to the accused and his fatherin law. The aforesaid plea of complainant is further falsified from the fact that the amount was allegedly brought by him from his son in US dollars and the complainant has failed to divulge the information as to the intimation given by him to RBI in this regard and he could not even given the details as to how he had got the US currency converted into Indian currency after reaching India.
25. During his further cross examination dated 29.07.2016, it was deposed by the complainant that the remaining amount of Rs.2 lakhs was arranged by him from his relatives, however, he could not tell the name of the said relatives nor could he tell the details of exact amount arranged by him from his relatives. He has even admitted that he would not be able to tell the details even after checking his records. Admittedly, the loan amount of Rs.5 lakhs has not been reflected by complainant in his ITR which are Mark CW1/D1 collectively.
26. Though in the complaint and his evidence by way of affidavit, the Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 25 of 30 complainant has alleged that the accused has executed and handed over the cheque in question leaving the name and date as blank, during his cross examination dated 19.09.2016, complainant has admitted that the cheque was only signed by the accused when the same was allegedly handed over by the accused to the complainant and the complainant had got the same filled by one of his neighbourer namely Pankaj Kalra before presentation of the same by him with his banker. On the contrary, CW2 during his cross examination dated 30.08.2017 has deposed that the cheque in question was already filled in by the accused when the same was given by accused to the complainant in his presence. The aforesaid contradiction in the testimony of CW1 and CW2 renders the plea of complainant regarding issuance of cheque in question by the accused in discharge of liability towards the complainant reasonably doubtful.
27. Thus, in view of the aforesaid facts, in my considered opinion, accused had been able to successfully rebut the initial presumptions arising in favour of the complainant regarding Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 26 of 30 issuance of cheque in question by the accused in discharge of either his liability or the liability of his fatherinlaw.
28. There can be no dispute about the prepositions of law laid down by Hon'ble Supreme Court and various High Courts in the judgments relied upon by Ld. Counsel for the complainant, however, in my considering opinion, in view of the peculiar facts and circumstances of the present case quoted herein above, the same are not of any assistance to the case of complainant. It is well settled legal position that in a criminal case the facts of no two cases can be same and hence while applying the law of precedent, the court should apply the legal principles laid down by the superior courts on the facts of the case before it and should not be swayed by identity of one or few facts of the case in hand with the cases before the superior courts. In my considered opinion, none of the judgments relied upon by the complainant or for that matter by the accused lays down any preposition of law contrary to the legal principles quoted herein above in para no.20 of this judgment and on an application of the aforesaid legal principles on the peculiar Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 27 of 30 facts and circumstances of this case, in my considered opinion, the accused has been able to rebut the presumptions arising in favour of complainant under Section 118(a) and 139 of NI Act on the touchstone of preponderance of probabilities and the complainant has not been able to prove its case under Section 138 NI Act against the accused for want of proof of liability of accused or his fatherinlaw to the extent of the cheque amount in question towards the complainant beyond reasonable doubts.
29. Reliance by the complainant on the document Ex.CW1/I as the proof of liability of accused towards the complainant to the extent of cheque amount is highly misplaced in as much as, the complainant has failed to prove the aforesaid document as per the applicable law of evidence. The aforesaid document seems to have been addressed by the complainant to SHO PS Sarojini Nagar, however, complainant has failed to explain as to how he has come into possession of the aforesaid document. The complainant has also failed to produce the original of the said document. No steps for summoning of the original have been taken by complainant Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 28 of 30 from PS Sarojini Nagar. Besides, as has already been observed, the complainant has failed to prove the source of funds worth Rs.5 lakhs out of which the alleged loan was given by him to the father inlaw of the accused. In fact, during his cross examination, complainant has tried to take an altogether new stand that the loan of Rs.5 lakhs was given by him to the accused and his fatherin law in equal proportion of Rs.2.5 lakhs each.
30. Once the presumptions arising in favour of complainant under Section 118 & 139 of NI Act are rebutted by the accused, it was incumbent upon the complainant to prove all the ingredients of offence under Section 138 of NI Act beyond reasonable doubts. In view of the fact that the accused has rebutted the presumptions by way of cross examination of CW1 and CW2, in my considered opinion, mere nonfiling of any complaint by him regarding the theft of cheque in question would not be sufficient to discharge the onus of the complainant, which shifted to the complainant, to prove that the cheque in question was issued by accused in favour of the complainant in discharge of liability of his fatherinlaw Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 29 of 30 towards the complainant. Thus, in my considered opinion, complainant has failed to discharge the aforesaid onus lying upon him. The second question is thus answered in affirmative.
31. Thus, in view of the aforesaid discussion, the accused is acquitted of charges under Section 138 of the Negotiable Instruments Act, 1881.
32.Accused has already furnished bail bonds in sum of Rs.30,000/ each in terms of provisions of Section 437A of Cr.P.C. which have been accepted today and shall remain in force for a period of six months from today.
33.Ordered accordingly.
Announced in the Open Court on this 3rd day of January 2018. This Judgment consists of 30 signed pages.
(ARUN KUMAR GARG) Metropolitan Magistrate-03 (NI Act) (South) Saket Courts, New Delhi/03.01.2018 Chaman Lal Vs. Gaurav Vig Judgment dated 03.01.2018 Comp. Case No. 470033/16 Page 30 of 30