Delhi District Court
Gorantla Venkateswara Rao vs . Kolla Veera Raghava Rao & Anr. 2006 on 17 July, 2013
IN THE COURT OF MS. SUGANDHA AGGARWAL, ACJcumCCJcumARC, NORTH DISTRICT, ROHINI : DELHI Unique Case ID No. 02404R0298952010 Police Station : North Rohini JUDGMENT
(a) Complaint Case No. 31/2010
(b) Date of offence After fifteen days of service of notice dated 11.3.2010
(c) Complainant Narender Antil, S/o Sh. Balbir Singh, Room No.1, Ground Floor, Plot No.1, Pocket E4, Sector7, Rohini, Delhi.
(d) Accused Krishan Gopal Aggarwal, S/o Shri
Ayodhya Prasad Aggarwal, R/o G
22/317, Sector7, Rohini, Delhi.
(e) Offence Under Section 138 of Negotiable
Instruments Act, 1881
(f) Plea of accused Pleaded not guilty.
(g) Final Order Convicted
(h) Date of institution 30.04.2010
(i) Date when judgment 05.06.2013
was reserved
(j) Date of judgment 17.07.2013
1. This is a complaint case filed by the complainant alleging offence CC No. 31/2010 Page No. 1 of 12 under Section 138 of Negotiable Instruments Act against the accused.
2. It is averred in the complaint that the complainant gave a friendly loan of Rs.1,90,000/ to the accused. The accused handed over one post dated cheque bearing no. 638234 dated 13.2.2010 of Rs.2 lakhs drawn on Punjab National Bank, Sector7, Rohini, Delhi - 110 085 in discharge of his liability in respect of repayment of entire loan amount of Rs.1,90,000/ plus lump sum interest of Rs.10,000/.
3. It is averred that on 15.2.2010, the complainant deposited the aforesaid cheque no. 638234 dated 13.2.2010 for Rs.2,00,000/ with his bank i. e. Axis Bank, Sector7, Rohini, Delhi - 110 085 for encashment. However the said cheque was dishonoured with the remarks "Account Blocked" vide cheque return memo dated 19.2.2010. The complainant has further averred that a legal notice dated 17.3.2010 was sent to the accused but the accused failed to make the payment of the cheque in question despite service of notice. Therefore the complainant was constrained to file the present case.
CC No. 31/2010 Page No. 2 of 12
4. After examination of the complainant, the accused was summoned for the offence punishable under Section 138 Negotiable Instruments Act.
5. When accused appeared in the Court, complete set of documents were supplied to him. Notice under Section 251 Code of Criminal Procedure for offence under Section 138 Negotiable Instruments Act, was served upon the accused vide order dated 4.3.2011, to which the accused pleaded not guilty and claimed trial.
6. Complainant examined himself as CW1. CW1 has filed his affidavit in examination in chief Ex.CW1/A wherein he has reiterated and reaffirmed the contents of the complaint on oath and relied upon the following documents:
(a) Cheque in question Ex.CW1/1. (b) Cheque returning memo Ex.CW1/2. (c) Legal notice along with UPC collectively Ex. CW1/3. (d) A.D. Card Ex.CW1/4.
7. CW1 was crossexamined by the accused and discharged. CC No. 31/2010 Page No. 3 of 12
Thereafter, CE was closed.
8. After closure of complainant's evidence statement of the accused Under Section 313 of Code of Criminal Procedure was recorded. Entire incriminating evidence was put to the accused. Accused denied the entire incriminating evidence and stated that he is innocent and has been falsely implicated in this case. The accused opted to lead defence evidence.
9. Accused examined himself as DW1 and deposed that Sh. Sandeep had taken a loan from him to the tune of Rs.2.5 Lakhs. At that time, complainant Narender was also present with Sh. Sandeep but the amount was taken only by Sandeep. On 2.11.2009, the complainant along with Sandeep came to his office at E4, Plot No.1, Shop No.2, SectorVII, Rohini and both gave him fists and beatings and grabbed his maruti Car bearing registration no.DL8CB6544 and they also took away furniture from his rented accommodation at F2/15, Sector16, Rohini. It is further deposed that they also forcibly took four cheques from the accused. The said cheques were of Uco Bank and P.N. Bank. They also forced the CC No. 31/2010 Page No. 4 of 12 accused to sign some blank papers and in this regard, he lodged a complaint with PS Sector8, Rohini. The photo copy of the same is marked as Mark A. He further deposed that he did not issue the cheque in question to the complainant and the same was forcibly taken away by the complainant. DW1 was crossexamined and discharged.
10. Accused also examined Constable Rakesh as DW1. DW1 deposed that he had brought the summoned record i. e. complaint dated 22.12.2009 lodged by Krishan Gopal Aggarwal to SHO, P. S. North Rohini. He proved the copy of the same as ex.DW1/A and he also proved the compromise statement of complainant as Ex.DW1/B. He was duly crossexamined on behalf of the complainant and discharged.
11. Accused also examined DW2 Constable Irshad who deposed that he had brought the summoned record i. e. complaints dated 5.2.2010 lodged by Krishan Gopal Aggarwal to DCP (Outer) received vide Dy. No. 230, 231 and 232. He proved the copy of the same as collectively Ex.DW2/A. He also proved the action taken report as Ex.DW2/B. He CC No. 31/2010 Page No. 5 of 12 was duly crossexamined on behalf of the complainant and discharged.
12. Thereafter DE was closed and the matter was fixed for final arguments.
13. I have heard arguments addressed by both the parties.
14. Counsel for complainant has argued that as per document Ex.DW1/B, it is clear that accused has taken loan from the complainant. Accused has admitted that he was on friendly terms with complainant and therefore presumption under Section 139 of Negotiable Instruments Act shall be drawn in favour of complainant and against the accused. Counsel for complainant has relied upon the judgments passed in the cases of Gorantla Venkateswara Rao Vs. Kolla Veera Raghava Rao & Anr. 2006 Crl. L.J. 1 and Manju Shree Vs. State of Jharkhand & Anr. 2003 (1) DCR
581.
15. Per contra, counsel for accused has argued that as per Ex.DW1/1, compromise was done for money transaction and it mentions about the car and not about the cheque and therefore the defence of the CC No. 31/2010 Page No. 6 of 12 accused is duly proved.
16. I have considered the rival contentions of both the parties and have carefully perused the record.
17. In the present case, complainant has averred that accused has taken a loan of Rs.1,90,000/ and has issued cheque Ex.CW1/1 of Rs. 2 Lakhs for repayment of said loan amount which was dishonored on presentation. Legal notice Ex.CW1/3 was served upon the accused but accused did not make the payment. In order to prove his case, complainant examined himself as CW1. In his examinationinchief, CW1 has reiterated and reasserted the contents of complaint on oath. CW1 was crossexamined. However, nothing material could come during the crossexamination of CW1 and CW1 maintained his stand during crossexamination.
18. The defence taken by the accused is that the complainant has snatched away the cheque from him for which complaint was made in the police on dated 22.12.2009 and 5.2.2010. Accused has also filed the CC No. 31/2010 Page No. 7 of 12 photocopies of both the complaints on record. The said copies have been duly proved by DW1 Ct. Rakesh as Ex.DW1/A and by DW2 Ct. Irshad as Ex.DW2/A. As per the testimony of DW1 Ct. Rakesh, the complaint Ex.DW1/A was not acted upon as compromise has taken place between the parties and a copy of which is Ex.DW1/B.
19. This is an admitted fact that cheque Ex.CW1/1 was signed by the accused. Now as per the defence of the accused, the said cheque was not issued for legally enforceable debt but the same was snatched away by the complainant. Accused has examined himself as DW1. A specific question was put to the accused as to whether he had given instructions to stop payment of cheque Ex.CW1/1 when it was snatched by the complainant to which accused has replied in negative. It is further stated by the accused in his crossexamination that he did not visit any hospital after he was beaten by the complainant, though the complainant was accompanied by 78 persons. Admittedly, no FIR has been registered on the complaint of the accused. As per the version of the accused, the CC No. 31/2010 Page No. 8 of 12 complainant has visited the accused and has given him beatings and snatched away the cheque Ex.CW1/1. Accused in his examinationin chief stated that complainant visited and gave beatings on 2.11.2009 and in his crossexamination described the said incident to have happened on 2.9.2011. There are material contradictions in the date of incident as deposed by the accused in his examinationinchief and cross examination. As per the testimony of DW1 Constable Rakesh, the complaint Ex.DW1/A is lodged by the accused on 22.12.2009 i.e. more than 1 ½ months after the date of incident as alleged by the accused in his examinationinchief. Why there has been much delay in lodging of complaint by the accused has not been explained. Further even if it is taken that deposition of the accused in his crossexamination is correct and the date of incident is 2.9.2011, then also complaint Ex.DW1/A dated 22.12.2009 has been lodged much prior to the date of incident as alleged by the accused. Further accused has averred that complainant has taken a loan of Rs.2.5 Lakhs from him but when the said loan was taken has not CC No. 31/2010 Page No. 9 of 12 been mentioned by the accused.
20. It is also admitted that a compromise was arrived between the parties with respect to complaint Ex.DW1/A. A copy of said compromise is Ex.DW1/B in which a duly signed statement of accused is there wherein it is mentioned that he has taken some money from the complainant and he has been unable to repay the same. For that purpose, he has also pledged a Maruti Car with the complainant. It is also stated in the compromise Ex.DW1/B that accused has received the possession of Maruti Car from the complainant.
21. From the above discussion, it is clear that there are material contradictions in the deposition of the accused. The defence taken by the accused has not been duly proved.
22. In the judgment of the case of Manju Shree Vs. State of Jharkhand & Anr. 2003 (1) DCR 581, relied upon by complainant, it has been held that if FIR was not lodged by the accused for theft of cheque then the said plea of accused cannot be considered by the Court. CC No. 31/2010 Page No. 10 of 12 However, in the present case, the facts are different as complaint with the police has been lodged by the accused, though the same has not been recorded as FIR by the police. Therefore, the said judgment is not applicable in the present case.
23. In the case of Gorantla Venkateswara Rao Vs. Kolla Veera Raghava Rao & Anr. 2006 Crl. L.J. 1, relied upon by the complainant, it has been held that if the legal notice served to accused has not been replied then an inference can be drawn that accused has borrowed the amount from the complainant and cheque was issued for repayment of loan amount. In the present case also, accused has admitted that he has received the legal notice from the complainant but the same has not been replied by the accused. Accused has failed to give the reasons as to why the legal notice was not replied to complainant stating that he was under
no liability to pay the cheque amount. On the other hand, complainant has duly proved that the cheque has been issued by the accused. By his testimony as CW1, complainant has duly proved the loan transaction. The CC No. 31/2010 Page No. 11 of 12 fact that an amount of Rs.2.5 Lakhs was taken by the complainant as loan from the accused and the complainant has given beatings to accused has not been put to CW1 in his crossexamination. Evidence led by the accused does not prove the said fact even by preponderance of probabilities. Hence, I am of the considered opinion that complainant has duly proved the guilt of the accused beyond reasonable doubt. Accordingly, accused is convicted for offence under Section 138 of Negotiable Instrument Act.
(Sugandha Aggarwal) ACJcumCCJcumARC North District : Rohini Announced in open Court on this 17th day of July, 2013 CC No. 31/2010 Page No. 12 of 12