Delhi District Court
Cc No 577/09 Chander Bhushan Yadav vs . Lallan Kumar Page 1 Of 8 on 14 August, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
CC No. : 577/09
Unique ID No. : 02404R0028562009
Chander Bhushan Yadav
R/o N-22/A-401, Kaushal Puri,
Near Railway Line, Azad Pur, Delhi .........Complainant
Vs.
Sh. Lallan Kumar
S/o Sh. Shri Pat
R/o N-22/B-371-72. Kaushal Puri,
Azad Pur, Delhi. ..........Accused
Date of institution of case : 24.01.2009
Date of reserving the judgment : 04.08.2014
Date of pronouncement of judgment : 14.08.2014
JUDGMENT
1. S. No. of the Case: 577/09 2. Date of Commission of Offence: After 22.07.2008 3. Date of institution of the case: 24.01.2009 4. Name of the complainant: Chander Bhushan Yadav 5. Name of the accused: Lallan Kumar 6. Offence complained or proved: S.138 N. I. Act, 1881 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 14.08.2014 CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 1 of 8 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The present complaint under section 138 of Negotiable Instruments Act,1881 (hereinafter referred to as "NI Act") is filed by the complainant Chander Bhushan Yadav against the accused Lallan Kumar.
2. Succinctly, the facts which has led to the culmination of the present complaint are that the complainant has alleged that accused had approached the complainant and shown his financial need for the marriage of sister of accused and requested for a friendly loan of Rs. 1 lac. Keeping in view the old and close relationship with the accused, complainant has arranged from his relation a sum of Rs. 70,000/- and gave to the accused in cash as friendly loan and for the repayment of the said loan amount, the accused issued four cheques bearing No. 289381, 289382, 289383 and 289384 dated 22.07.2008, 22.08.2008, 25.09.2008 and 10.11.2008 for Rs. 11,000/-, Rs.11,000, Rs. 10,000/- and Rs. 15,000/- respectively drawn on Syndicate Bank, G.T. Karnal Road, Delhi in favour of the complainant. The said cheques were not honoured and were returned back dis-honoured by the bankers of the accused with the remarks "Insufficient Funds" vide three returning memo dated 12.12.2008 for cheques no. 289381, 289382, 289383 and returning memo dted 25.11.2008 for cheque no. 289384. Complainant called upon the accused through his counsel vide legal notice dated 22.12.2008 to make the payment of the aforesaid cheques. The said notice was sent to the accused through registered AD as well as UPC Post. Despite service the accused did not return the cheques amount to the complainant and the present complaint was filed against the accused by the complainant.
3. After being satisfied that prima facie ingredients of Section 138 NI Act are made out, cognizance was taken and accused was summoned under section 204 CrPC CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 2 of 8 whereupon the accused appeared and the notice under section 251 CrPC was served on the accused to which he pleaded not guilty and claimed trial.
4. In Complainant's evidence, the complainant(CW 1) adopted his pre-summoning affidavit in post summoning evidence as Ex PW1/A and relied on documents:
Ex CW 1/1 to 5 -Impugned cheques
Ex CW1/6 to 9 -Returning memos
Ex CW1/10 -Legal notice
Ex. CW 1/11 & 12 -Postal and UPC receipts.
5. The complainant evidence was closed and the accused was examined under section 313 r/w 281 Cr.P.C on 06.02.2013 where all the incriminating evidence was put to the accused. The accused stated that he had given the cheques to the complainant for paying LIC Premium and the same have been misused. The accused wished to lead defence evidence and accused has examined himself as DW-1.
6. DW 1 Lallan Kumar deposed that he never availed any loan of 70,000/-. He had given blank cheques for LIC premium. His address is N-383 Kaushal Puri Azad Pur, Delhi. He had been residing in this address since childhood. Complainant know his address but he knowingly used wrong address. He did not receive any notice. His LIC Premium receipt is Ex. DW 1/2.
7. I have heard the rival contentions from both sides and have perused the judicial record.
8. The question in the present case revolves around as to whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 3 of 8 liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank 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 provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:....
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
9. It is a sine qua non for constitution of the offence u/s 138 NI Act that the cheque must have been issued for the discharge in whole or in part of legally enforceable liability or debt. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"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, or any debt or other liability."CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 4 of 8
"118. Presumptions as to negotiable instruments of consideration 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 bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) ............................................................................"
10. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant.
11. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 5 of 8 presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
The standard of proof evidently is pre-ponderance of probabilities. Inference of pre- ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
12. The present complaint has been filed by the complainant Chander Bhushan Yadav against Lallan Kumar on the allegations that accused is a close friend of the complaiant and he has taken friendly loan of Rs. 70,000 from the complainant for the marriage of his sister. To repay the loan, the accused issued the four impugned cheques which got dishonoured on presentation and despite receiving of legal notice, the accused did not pay the cheque amount.
13. The accused has assailed the present complaint and has pleaded that he has not taken any loan from the complainant. The accused has asserted that the impugned cheques as blank & signed were issued to complainant to pay the LIC premium.
14. The complainant Chander Bhushan had examined herself as CW1. In cross examination he admitted that he is LIC agent and that the accused had obtained one LIC policy from him which was subsequently lapsed for want of premium. He also admitted that the content of the cheques are in his handwriting except the signatures. Complainant stated in his cross examination that the loan of Rs 70,000 was given in cash in June 2008 but no particular date has been mentioned. No loan agreement, pronote, receipt etc has been produced to prove the loan transaction. No Income tax return has been produced to show loan by complainant to the accused. The complainant has also deposed that he has CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 6 of 8 borrowed Rs. 60,000 from his uncle to give loan to the accused but the uncle has not been examined. There is no proof as to when the loan was given and when the impugned cheques were handed over by the accused and to whom and in whose presence. No document is availble on record to show the loan transaction.
15. It is the complainant's case that to return the loan, accused had issued the impugned cheques to him. It is not proved as to why 4 cheques were given to pay the loan when it could have been done by a single cheque. It is also not disputed that the cheques were issued in blank and signed. The complainant has admitted that he has filled the contents. Further, the accused has proved the LIC premium receipt Ex DW1/1/2 which was procured through the complainant. It is admitted that there were business dealings between the parties. It is not explained then in that circumstances why no document for loan was not executed between the parties. It is asserted in the complaint that the accused has taken loan for the marriage of his sister, but the accused has stated in his cross examination that he has four sisters and they all were married till 1997. No evidence has been led by the complainant to rebut this fact. If the parties were in cordial and friendly relations then the complainant must have known these facts and could have rebutted the facts deposed by the accused and on the other hand,. if the complainant and the accused were not in friendly relations then why no agreement, receipt, pronote etc. were executed is another question. The complainant has not been able to prove the existence of friendly relations as well as the grant of loan to the accused.
FINAL ORDER
16. In the light of the above discussions and observations, this court has no hitch to hold that the complainant has failed in proving their case beyond the shadow of CC no 577/09 Chander Bhushan Yadav Vs. Lallan Kumar Page 7 of 8 reasonable doubts. This court exonerates the accused Lallan Kumar for the offence under section 138 NI Act. The accused is hereby acquitted. Bail bonds are cancelled and sureties stands discharged. Endorsements, if any, stands cancelled.
Announced in open court (SUSHIL ANUJ TYAGI)
14th day of August, 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
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