Delhi District Court
Shri Vikas Marwah vs Smt. Kajal on 27 April, 2013
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IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE01, DISTT. WEST, TIS HAZARI
COURTS, DELHI.
Crl. (A) No. 25/2012
Unique Case I.D. No. 02401R0195032012
Shri Vikas Marwah
S/o Shri Ramesh Marwah
R/o B43/3, Double Storey
Ramesh Nagar,
New Delhi.
..............Appellant
Versus
Smt. Kajal
W/o Shri Ashwani Wahi
R/o B43/4, Double Storey
Ramesh Nagar,
New Delhi.
............Respondent
Date of Institution : 28.04.2012 Date or arguments : 23.03.2013 Date of Judgment : 27.04.2013 Judgment
This is an appeal against the judgment dt. 17.3.12 passed by the trial court in CC No. 729/09 PS Kirti Nagar, whereby the appellant has Crl. (A) No. 25/12 P1/13 2 been convicted U/s 138 of Negotiable Instruments Act (hereinafter be referred as 'N.I. Act') and against the order on sentence dt. 3.4.12 whereby the appellant was sentenced to RI of one year and to pay a compensation of Rs. 20,000 i.e. the cheque amount to the respondent.
2. I have heard Ld. counsel for the appellant and Ld. counsel for the respondent and perused the file.
3. Perusal of the file shows that the complainant (respondent herein) has filed a complaint U/s 138 N.I. Act against the accused (appellant herein). In the complaint, it has been alleged that the complainant was having friendly relation with the accused. The accused has requested the complainant to loan some money which was required by him for his business purposes and had ensured the complainant that the amount of the loan would be returned in the month of August 2004. On the basis of the assurance, the complainant had given the loan of Rs. 10,40,000/ to the accused from time to time and the accused has given the cheques for the discharge of his liability. The accused had issued the cheques bearing No. 976968 dt. 18.8.04 of 20,000/ (cheque in question) in favour of the complainant against the loan taken by him. The 'cheque in question' was deposited in the concerned bank and which has been dishonoured with the remarks 'insufficient funds'. The complainant has sent the legal notice dt. 21.8.04 to the accused to make the payment of the Crl. (A) No. 25/12 P2/13 3 'cheques in question' and the accused inspite of the legal notice has failed to make the payment of the cheque amount.
4. Notice has been given to the accused U/s 251 Cr.PC for the offence U/s 138 of N.I. Act to which he has pleaded not guilty and claimed trial. In order to prove her case, the complainant has examined herself as CW1. The statement of the accused has been recorded U/s 281 Cr.PC. The accused has himself examined as DW1.
CW1 has proved her affidavit tendered into evidence as Ex. CW1/A and has supported her allegations as made in the complaint.
In cross examination, CW1 has denied the suggestion that he lend money on interest or that she has engaged in money lending business. She has also denied the suggestion that she has advanced an amount of Rs. 3,00,000/ to the accused on interest and in lieu of that received nine blank cheques from the accused and has taken the gold as security from the accused or that the accused has returned the amount of Rs. 3,00,000/ to her. She has filed nine complaint cases against the accused. The nine cheques were given by the accused from time to time as and when he used to receive the corresponding amount. She is in the business of interior decoration and is working in the name and style of M/s Kajal Decorators. She is an income tax payee and was filing the income tax return in her name for the last 4/5 years. She can bring the income tax return of the previous Crl. (A) No. 25/12 P3/13 4 years in the court. She always made the payment to the accused by cash. The maximum amount paid to the accused at one time is Rs. 5,80,000/. She used to make the payment to the accused in the presence of her husband Shri Ashwaniwahi and one Mr. Jacky who is her Rakhi brother. She has arranged the funds of Rs. 5,80,000/ from Jacky and two sisters namely Smt. Amita Saini and Smt. Rekha Saini. She has received Rs. 1.5 lacs each from her two sisters and the balance amount of Rs 2,80,000/ was paid by Mr. Jacky. Both of his sisters are housewife. Both of her sisters arranged this funds by taking the loan from one Saini society and out of their own personal savings. She paid the money for the first time to the accused in the year 2003 and last payment was made in the year 2004. She has also given 15/16 legal notices to Smt. Prabha Dutta and Smt. Ruchi Dutta U/s 138 of NI Act. She has denied the suggestion that she took blank cheques as well as valuable articles as security from the debtors. She has also denied the suggestion that she has misused the cheques in question which were blank and which were given as security. Vol. The cheques were not blank but completely filled up by the accused himself. She has denied the suggestion that the accused has repaid the entire loan amount along with interest and nothing is payable by him to him.
DW1 has proved his affidavit tender into evidence as Ex.
DW1/A. In the affidavit, it has been alleged that the complainant is
Crl. (A) No. 25/12 P4/13
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engaged in money lending business and gave loan on exorbitant rate of interest. Due to the shortage of money, due to illness of his father in 200102, the complainant used to provide him financially assistance from time to time and used to take blank signed cheques and other valuable items like gold as security. He has been paying exorbitant rate of interest and has also refunded the amount of Rs. 3,50,000/, towards the principle Rs. 3,00,000/ and Rs. 50,000/ as interest from time to time. The complainant had not returned the cheques and gold items. The complainant has never given the amount of Rs. 10,40,000/ as a loan. The 'cheques in question' are being forged and manipulated by the complainant.
In cross examination, DW1 has deposed that he has signed nine cheques and gave to the complainant. Vol. The cheques were blank. The cheques were blank and not filled by him at the column at date and amount. Few cheques was filled by the Kajal herself including all the dates of the cheque. His relation with the complainant were cordial and homely during the year 200304 and also before that. DW1 has denied the suggestion that he took the friendly loan of Rs. 10,40,000/ from time to time from the complainant or that he issued nine cheques in question as returned of that loan amount to the complainant. He has returned Rs. 3,50,000/ to the complainant before filing of the case. The rate of interest is Rs. 50,000/ on Rs. 3,00,000/ for one year. Vol. The rate of interest is Crl. (A) No. 25/12 P5/13 6 varied from amount to amount.
5. Ld. counsel for the appellant has argued that the trial court has passed the impugned judgment on the basis of surmises and conjectures which is against the facts and the law. The trial court has not appreciated the evidence on record according to law and which has resulted in the miscarriage of justice. The appellant has taken an amount of Rs. 3,00,000/ as loan from the respondent on interest and which he has paid the same along with interest i.e. total amount of Rs. 3,50,000/. The respondent, in lieu of that advance amount, has taken 9 blank cheques including 'cheque in question' from the appellant as a security. The 'cheque in question' is without any consideration and does not constitute legally enforceable debt. On these grounds, it is prayed that the impugned judgment be set aside and the appellant be acquitted.
On the other hand, the respondent has argued that the trial court has passed the impugned judgment after considering the material on record. There is no infirmity in the impugned judgment and the appeal is without any merits and it be dismissed.
6. DW1 has deposed that he has signed 9 cheques and gave to the complainant. These cheques were blank and not filled by him at the column of date and the amount. These cheques are given to the respondent as security.
Crl. (A) No. 25/12 P6/13 7 CW1 has deposed that she has advanced the loan of Rs. 10,40,000/ to the appellant from time to time. The appellant has given nine cheques including 'cheque in question' for the discharge of his liability.
Section : 139 of Negotiable Instruments Act read as follows:
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.
It has been observed by Hon'ble Supreme Court in 2007 (12) Scale 96) as follows: " The Act raises two presumptions firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms "proved" and "disproved" as contained in Section 3 of the Evidence Act as also the nature of the said burden upon Crl. (A) No. 25/12 P7/13 8 the prosecution visavis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability."
It has been observed by Hon'ble Supreme Court in 2012 XII AD (S.C.) 161 as follows: "Further, a three judge Bench of this court in the matter of Rangappa Vs. Sri Mohan (2010) 11 SCC 441 held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that Crl. (A) No. 25/12 P8/13 9 the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.
Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a Crl. (A) No. 25/12 P9/13 10 probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
In view of the aforesaid judgments and in view of Section 139 of N.I. Act, it has to be presumed that the 'cheque in question' has been issued in discharge of debt but this presumption can be rebutted by the appellant, if he is able to establish probable defence, which creates a doubt about the existence for a legally enforceable debt or liability.
7. CW1 has deposed that she has given a loan of Rs. 10,40,000/ to the appellant from time to time She has paid the money for the first time to the appellant in the year 2003 and the last payments were made in the year 2004. The appellant neither in his complaint nor in her evidence has given the details as to the dates on which the alleged amount has been advanced from time to time.
CW1 has deposed that the maximum amount paid to the appellant at one time is Rs. 5,80,000/. She has arranged the funds of Rs. 5,80,000/ from Mr. Jacky who is her rakhi brother and two sisters namely Smt. Amita Saini and Smt. Rekha Saini. She has received Rs. 1.5 lacs each from her two sisters and the balance amount of Rs 2,80,000/ was received Crl. (A) No. 25/12 P10/13 11 from Mr. Jacky. She used to make the payment to the appellant in the presence of her husband Shri Ashwaniwahi and Mr. Jacky. The respondent has not examined any of these persons to prove the payment to the appellant and also that the respondent has received the amount of Rs. 5,80,000/ from Mr. Jacky and her two sisters.
CW1 has deposed that she is an income tax payee and was filing the income tax return in her name for the last 4/5 years. She can bring the income tax return of the previous years in the court. The respondent has not filed any income tax return in the court showing the advance of loan to the appellant.
All the alleged nine cheques are dt. 18.8.04. It is improbable that the person who has allegedly taken a loan of Rs. 10,40,000/ from time to time would repay the same on one day.
All these facts, proved from the evidence on record, creates a doubt in the case of the respondent that she has given a loan of Rs. 10,40,000/ to the appellant.
8. The respondent has filed nine complaints U/s 138 N.I. Act against the appellant ( the appeals of all these complaints are pending before this court) on the basis of nine cheques of the total amount of Rs. 10,40,000/ including the 'cheque in question'. CW1 has also deposed that she has given 15 to 16 legal notices to Smt. Prabha Dutta and Smt. Ruchi Crl. (A) No. 25/12 P11/13 12 Dutta U/s 138 N.I. Act. In one of the cheque, which is a subject matter of the criminal appeal No. 22/12, it has been mentioned on the back of the cheque Rs. 50,000/ @ 7% dt. 20.12.03.
It is difficult to accept that the respondent would advance the loan of Rs. 10,40,000/ as interest free, when the majority of the amount she has borrowed from her alleged relatives. It shows that the respondent is in the business of money lending without having the licence to do the same.
It has been observed by Hon'ble High Court of Andhra Pradesh in the judgment as Krishnam Raju Finance Vs. Abida Sultana and anrs. IV (2004) BC 146 which are as follows: "If the person is disbursing loan and is engaged in the business of money lending and if he is not possessing the license, for lending money, under the law, such a person can not claim or recover debt or liability from his debtors. This is for the reason that such a debt does not stand the scrutiny of legally recoverable debt, under section 138 of N.I. Act."
Further once the complainant stated to be a money lender and does not have licence for such business. It could not have maintained a legally enforceable right for Crl. (A) No. 25/12 P12/13 13 recovery of amount by filing a suit".
9. In view of the above discussion, the appellant has been able to establish probable defence, which creates a doubt about the existence for a legal enforceable debt or liability and so no case for the offence punishable U/s 138 N.I. Act is proved against the appellant. Accordingly, the impugned judgment passed by the trial court in CC No. 729/09 PS Kirti Nagar is not sustainable in the eyes of law and it is set aside and the appeal is allowed. The appellant is acquitted. Bail bond cancelled and surety is discharged.
Trial court record along with attested copy of the Judgment be sent back. Appeal file be consigned to Record Room. Announced in the open court (Rajneesh Kumar Gupta) today i.e. on 27.04.13 Additional Sessions Judge01 (West) Tis Hazari Courts, Delhi.
Crl. (A) No. 25/12 P13/13