Delhi District Court
Madan Lal S/O Sh. Potu Ram vs Om Prakash S/O Sh. Sherya on 6 January, 2014
IN THE COURT OF SH. VIKRAM, MM03, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI.
C.C. No. : 1571/12
U/s : 138 N.I. Act
P.S. : Jafarpur Kalan
Madan Lal S/o Sh. Potu Ram,
R/o 137A, Dabur Enclave, Gali No.1,
Rawta Mor, Jafarpur Kalan, New Delhi73
Versus
Om Prakash S/o Sh. Sherya
R/o Rajiv Colony, ITI Road,
Jafarpur Kalan, New Delhi110073
Date of Institution : 20.10.2012
Final arguments heard on : 21.12.2013
Date of Decision : 06.01.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, the case of the complainant is that the accused has friendly relations with the complainant and the complainant has given the accused a sum of Rs.5,00,000/ in cash in the month of November, 2011 and the accused undertook to repay the same on or before the 1st week of September, 2012. It is further stated that the accused in discharge of his legal liabilities, issued a cheque bearing No.518009 dated 14.09.2012, for a sum of Rs.5,00,000/, drawn on Bank of Baroda, Ujwa, New Delhi which the complainant deposited in his banker namely Corporation Bank, Jaffarpur Kalan, New Delhi but the same returned dishonoured with remarks "Payment Stopped by the C.C. No: 1571/12 madan lal v. om prakash Page 1/7 drawer" vide cheque returning memo dated 17.09.2012. It is further stated that the complainant served a legal notice dated 25.09.2012 which was duly served upon the accused, however, even after receipt of the notice accused failed to make the payment within 15 days of receipt of notice. Aggrieved of this the complainant filed the present complaint u/s 138 NI Act.
2. The complainant led the presummoning evidence and the accused was summoned vide order dated 25.10.2012. The copies of complaint and documents were supplied to the accused to his satisfaction.
3. On the basis of material on record, notice u/s 251 Cr.P.C was served upon the accused for committing the offence punishable under Section 138 N.I. Act on 04.01.2013, to which accused pleaded not guilty and claimed trial and stated in his defence that he used to pool in the committee of the complainant for Rs.51,000/ @ Rs.2,500/ per month and this cheque was given as security in blank at the time of start of committee and the complainant has misused his cheque.
4. In support of its case, the complainant examined himself as CW1, who adopted his affidavit given in presummoning evidence, reiterating the facts stated in the complaint and proved documents. CW1 was duly cross examined by counsel for accused.
5. After completion of complainant evidence, statement of accused u/s 313 Cr.P.C was recorded wherein he denied all the incriminating evidence against him and stated that he had not taken any loan from the complainant and he was a member of soceity which was run by the complainant and he had given this cheque as blank C.C. No: 1571/12 madan lal v. om prakash Page 2/7 during the period of society which he has already repaid. Accused examined Anoop Singh in his defence as DW1.
6. I have heard the counsel for the parties as well as perused the material and evidence on record.
7. As per section 138 NIA a person is said to have committed an offence when a cheque issued by that person gets dishonoured on presentation. The section reads as under:
138 dishonour of cheque for insufficiency, etc., of funds in account.where any cheque drawn by a person on account maintained by him with a bank or payment of any amount another person from out of that account of money for discharge, in whole and in part, of any debt or other liability, is returned by them unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a terms which extend to twice the amount of the cheque, or with both Provided that nothing contained in this Section shall apply unless
i)the cheque has been presented to the bank within a period of six months form the date on which it is drawn or within the period of its validity whenever is earlier.
ii)the payee or the holder in due course of the cheque, as the case may be 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
iii)the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque fifteen days of the receipt of the said notice.
iv)ExplanationFor the purpose of this section, "debt or other liability means of legally enforceable debt or other liability.
8. However, dishonour of cheque itself does not give rise to cause C.C. No: 1571/12 madan lal v. om prakash Page 3/7 of action to file complaint. The payee has to issue legal demand notice upon the drawer of cheque with in 30 days of such dishonour. It is only when the drawer fails to make payment of cheque amount within 15 days of receipt of such legal demand notice, the payee gets the cause of action to file complaint. There is a bar of limitation to file such complaint with in 30 days from the expiry of such 15 days from service of legal notice.
9. In the light of above set legal position, as per the averments in the complaint, the complainant gave a friendly loan of Rs.5.0 lacs to the accused and in discharge of that accused issued the cheque in question to the complainant, which on presentation, got dishonoured. The accused sent a legal notice demanding the cheque amount and despite opportunity accused failed to make payment of the cheque amount. The accused has taken the defence that he had not taken any loan from the complainant. He also stated that he used to pool in the committee of the complainant and the cheque was given to the complainant as security and it was blank when it was given.
10. To the question whether accused received legal notice or not, there is neither denial nor acceptance on behalf of the accused that a legal notice under Section 138 N.I. Act was served upon him. Therefore, the only question remains to be examined is whether the complainant advanced loan of Rs.5.0 lacs to the accused and whether this cheque was issued in discharge of that Rs.5.0 lacs or the cheque was given in security as claimed by the accused.
11. The complainant, in his evidence by way of affidavit, has reiterated the facts mentioned in the complaint. The counsel for C.C. No: 1571/12 madan lal v. om prakash Page 4/7 complainant submits that since the accused has admitted his signatures in this cheque, the presumption under Section 139 of the Act attracts and in view of presumption, the cheque has to be believed to be issued in discharge of liability against the accused.
12. On the other hand, counsel for accused submits that merely possession of the cheque does not confer the liability. It is the submission of defence counsel that complainant claims to have advanced a sum of Rs.5.0 lacs but he does not know on which date he advanced the loan. It is submitted that the complainant is not a rich person but a poor labourer with a total income of Rs.13,000/ including that of his wife and he is looking after the family of five members. It is submitted that the cross examination of complainant shows that the complainant do not have any capacity to advance such a huge amount. It is also submitted that there is no receipt or any writing work done while advancing the loan which also shows that complainant has not advanced any loan. It is also submitted by Ld. Defence counsel that the complainant is not an incometax assessee as he does not earn such income which could be assessed, therefore, he has no capacity to advance such a huge amount. Further, there is no witness to the alleged transaction of the complainant with the accused. It is submitted that complainant has failed to prove that he has advanced any loan to the accused. Therefore, the accused is not liable to discharge any liability.
13. The only question for consideration is whether the accused had taken the loan of Rs.5.0 lacs from the complainant or not. Although, there is a presumption under Section 139 N.I. Act in favour of C.C. No: 1571/12 madan lal v. om prakash Page 5/7 complainant that he is holder in due course and the cheque was issued in his favour in discharge of debt. But the presumption is rebuttable one and it is settled law that presumption can be rebutted on the basis of material adduced in the cross examination of complainant witness.
14. This complainant earns only Rs.10,000/ a month. His family consists of five members. Even though the wife of complainant earns Rs.3,200/ it is unbelievable that a person of this little means would advance a loan of Rs.5.0 lacs to any person. Although the complainant has given explanation that he arranged the money from his brothers, but none of his brothers has come in the witness box to substantiate his claim. The complainant has explained that he took Rs.1.0 lac from his elder brother and Rs.2.0 lac from his younger brother and arranged Rs.2.0 lac from his own. This explanation is not believable as the complainant is a man who earns Rs.10,000/ only and looks after a family of five members. There is no explanation given by the complainant how he arranged this much of amount. Further, the complainant was not having bank account as he has stated in his own cross examination that he opened his account after giving the loan to the accused. The complainant has failed to specify on which date accused asked for loan or where accused demanded money from the complainant. He also does not remember when accused asked for loan.
15. This cheque was dishonoured by the bank for 'stop payment'. It is submitted by counsel for the accused that he had called his banker to stop payment of the cheque in question much prior to the date of C.C. No: 1571/12 madan lal v. om prakash Page 6/7 cheque as the complainant had refused to return the cheque. Ld. Counsel submits that the fact that the stop payment instruction was given much prior to date of cheque is proved from the fact that the complainant has stated in his cross examination that he presented the cheque on the same date when he received it. Accused has not stated when he received the cheque but the cheque bears date 14.09.2012 and the return memo after CTS clearing is dated 17.09.2012. The complainant has admitted that he has filled up the particulars of cheque with his own pen. All these circumstances are sufficient to prove that the defence taken by the accused is plausible one. Further, the contention of the complainant that he advanced a loan of Rs.5.0 lacs to the accused under the circumstances above discussed is unbelievable. Hence, the complainant has failed to prove beyond reasonable doubt that he has advanced a loan of Rs.5.0 lacs to the accused.
16. Hence, in view of my above discussion, I am of the considered opinion that the complainant has failed to prove its case against the accused and hence, the accused is acquitted of the charges levelled against her.
Dictated & Announced in Open Court (Vikram)
th
On the 6 day of January, 2014 MM03/SouthWest/Delhi
06.01.2014
C.C. No: 1571/12 madan lal v. om prakash Page 7/7