Delhi District Court
Sangeeta Yadav vs . Vikash Dhama on 1 September, 2018
IN THE COURT OF MS NIHARIKA KUMAR : METROPOLITAN
MAGISTRATE - 04 : SOUTH : SAKET COURT : NEW DELHI
SANGEETA YADAV Vs. VIKASH DHAMA
CC No. 462567/2016
Digitally
signed by
NIHARIKA
U/s 138 Negotiable Instruments Act NIHARIKA KUMAR
KUMAR Date:
2018.09.01
JUDGMENT 16:44:47
+0530
(1) Serial number of the case : 462567/2016
(2) Name of the complainant : Smt. Sangeeta Yadav,
W/o Sh. Ashok Yadav,
R/o H. No. D-1188, Chhatter
Pur Enclave, Chhattar Pur,
New Delhi-110074.
(3) Name of the accused : Sh. Vikash Dhama,
S/o Sh. Satbeer Singh,
R/o H. No. 51, Saibdulajab
Village, Saket,
New Delhi.
Also at:
B-9A, Ground Floor,
Paryavaran Complex,
Saibdulajab Saket,
New Delhi.
(4) Offence complained of or proved: 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : ACQUITTED
(7) Date of Institution : 15.07.2016
Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 1 of 15
(8) Date on which reserved for
judgment : 07.08.2018
(9) Date of Judgment : 01.09.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The complainant has filed two case against the accused ie CC No. 462567/2016 and 474162/2016. Since the cheques are given out of the same transaction, facts are interrelated, therefore a common judgment is passed in both the cases.
2. The brief facts of this case as carved out from the complaint are that the complainant had cordial relations with the accused and on 28.01.2016, the accused approached the complainant for friendly loan of Rs. 2,80,000/-. That the accused assured the complainant that he shall pay back and return the money within two months. That the complainant gave a sum of Rs. 2,80,000/- to the accused on 28.01.2016 to help the accused in his dire need. After the lapse of two months, complainant asked the accused to refund the loan in question but accused avoided to pay the same on one pretext or the other. That in discharge of above said liability, the accused issued cheque bearing no. 000014 dated 09.05.2016 for Rs. 2,80,000/- drawn on Bank of Baroda, Saket Branch (hereinafter "the cheque in question") in the name of the complainant, which on presentation were dishonoured and returned unpaid vide cheque returning memo dated 11.05.2016 with Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 2 of 15 remarks "Insufficient funds". That a legal demand notice dated 26.05.2016 was sent by the complainant through his counsel to the accused through registered speed post, despite receipt of which, payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
3. The pre-summoning evidence, by way of affidavit (Ex. CW-1/7) was filed by the complainant. In his affidavits of evidence complainant has relied on following documents i.e. Ex. CW-1/1 is original cheque in question, Ex. CW-1/2 is return memo, Ex. CW-1/3 is office copy of legal notice, Ex. CW- 1/4 is postal receipt, Ex. CW-1/5 is the tracking report and the complaint which is Ex. CW-1/6.
After perusal of the complaint and affidavit of evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 27.08.2016 by my Ld. Predecessor Judge.
4. Accused appeared pursuant to issuance of B/Ws. Thereafter, notice U/s 251 CrPC was served upon the accused vide order dated 16.03.2017 to which the accused pleaded not guilty and claimed trial.
In his defence, accused denied the receipt of legal notice of demand since the address mentioned on the same was incorrect. Accused Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 3 of 15 further stated that he does not know the complainant. He further stated that cheque in question was given to his business partner Sh. Mithlesh. He stated that he filled the amount (words and figures) and signed the cheque in question and he did not fill other details on the same. He had denied the legal liability to pay the cheque amount to the complainant.
5. In post summoning complainant evidence, complainant CW-1 was duly cross examined on behalf of accused on allowing of application u/s 145(2) NI Act and no other witness on behalf of the complainant has produced. Thereafter, complainant evidence was closed vide order dated 24.08.2017.
6. Thereafter, the plea of the accused u/s 313 r/w 281 CrPC was recorded vide order dated 25.09.2017. All material existing on record including the exhibited documents were put to accused. In his defence, the accused denied the fact that the complainant gave a loan of Rs. 2,80,000/- in the month of January 2016. Further, accused stated that he had not given the cheque in question to the complainant but the same was given to one person namely Mithlesh as a security. Further, accused denied the receipt of legal notice of demand as it was sent on incorrect address.
Accused expressed his desire to lead DE. Accused examined himself as DW1. Thereafter, DE was closed vide order dated 27/04/2018. Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 4 of 15
7. I have heard the arguments of both the parties and perused the record of the case meticulously.
8. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability;
iii) The cheque so issued was returned unpaid by the banker of the drawer;
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within15 days of the receipt of the said notice.
9. It is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 and other under Section 118(a) of the NI 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 presumption, what is Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 5 of 15 needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
10. Section 138 Negotiable Instruments Act is attracted in cases where any cheque drawn by a person on an account maintained by him to the 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 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence.
11. Undisputed factual matrix:-
On sifting of evidence on record and appreciation of arguments, the following facts have gone either unchallenged or are admitted:-
1. Cheques in question are signed by the accused and amounts (in words and figures) filled by the accused.
2. The complaint filed is within limitation.
3. The complaint is within jurisdiction.
4. Cheques in question got dishonoured for the reason in return memo.
5. Cheques were given for the amount of Rs. 2,80,000/-.Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 6 of 15
12. Contentious points:-
On appreciation of arguments and sifting of evidence, the following contentious points arise:-
1. Whether there exists a legally recoverable debt?
2. Whether the cheques in question were issued against legally recoverable debt?
3. Whether the accused received the legal notice of demand?
13. Points of determination:-
1. Whether there exists a legally recoverable debt?
It is the case of the complainant that she advanced a friendly loan of Rs. 2.80 lacs on account of cordial relations with the accused and, therefore this amount was due upon accused to pay.
Accused has contradicted the same by stating that accused is not known to the complainant and no loan was even advanced by the complainant.
Therefore, to prove that the complainant had legal debt against the accused she is required to prove the fact of friendly relations with the accused, the source of income to show the financial capacity to advance the alleged loan and the fact of giving the loan.
At the stage of cross-examination, complainant was at length examined on all these aspects. Firstly, with respect to the friendly relations Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 7 of 15 with the accused, it is submitted by the complainant that accused is known to her for past 2 years through her husband. It is further stated by the complainant that the financial loan was asked from the husband of the complainant and thereafter she gave the money to her husband who further gave it to the accused. During cross-examination, complainant was unable to tell the address of the accused. She stated that she never visited the house of the accused neither she knows his wife. On the contrary in Ex. CW-1/7 complainant has stated that when the cheque in question was received back dishonoured, she repeatedly visited accused and requested to make the payment but the accused kept avoiding him on one pretext or the other. The complainant has not clarified whether she visited herself or someone on her behalf visited the accused. Complainant is not able to bring any evidence to show the existing friendly relations with the accused. It is also important to note that no questions to establish the friendly relations were put to the accused during his cross-examination despite the fact the accused took this defence at every stage.
On the aspect of the source of income determining the financial capacity of the complainant who advanced the loan in question, complainant was cross-examined on several aspects. It is stated by the complainant that she advanced the loan amount herself. On cross-examination, it is revealed that she is the housewife and does not have any income from employment. Therefore, as per cross-examination it is observed that the only person is left who advanced the loan is her husband and her father-in-law. Complainant Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 8 of 15 has categorically denied that she received the loan amount from her father- in-law. She had not said anything about her husband. Further, she also stated that rental income is received in her account, however, she has not clarified the duration and amount of the same. No document is placed on record to show same. Further, to show her financial capacity, complainant placed on record the bank account statement which is Ex. CW1/9. I have gone through the document. Perusal of the document reveals that from 22.09.2014 to 13.02.2016 (loan was advanced on 28.01.2016), at no point of time, complainant maintained a bank balance for an amount more than Rs 50,000/-. It is hard to believe that if she does not have any personal source of income, the amount is not borrowed from anyone and even in her bank accounts, she did not have the balance close to the loan amount, how come she managed to have the amount for loan. Even in the ITR furnished by her which is Ex. CW1/8, her total income is Rs. 3,06,340/- in 2015-16. The loan amount is more than a total yearly income. Complainant has not able to explain how had she managed to arranged such a big amount and advanced it to someone who is not properly known to her.
In case of, John K Abrahan Vs. Simon C. Abrahan & Anr.
Reported in (2014) 2 SCC 236 that "It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 9 of 15 advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour the complainant."
Now we come on the aspect of the date and place where the alleged loan in question was given to the accused. From Ex. CW1/7, it is not mentioned where the loan was given. The date of the loan is mentioned. However, in the cross-examination of the accused, a suggestion was put to the accused that the loan was given at the house of the complainant.
On the aspect of advancing the loan in question, accused has linked both the cases i.e. CC no. 462567/16 & 474162/16. Accused has created a probable defence in the two cases regarding advancement of the loan and receiving of cheque in question by the complainant. In CC No. 462567/16, the loan amount is alleged to be advanced on 28.01.2016 for the period of two months and the repayment of the loan was demanded repeatedly by the complainant in March. Thereafter, the cheque dated 09/05/2016 was received back dishonoured on 11/05/2016. Now, it is pertinent to note that in CC No. 474162/16, another loan is advanced by the complainant to the accused for the amount of Rs. 1 lac on 22/03/2016 for the period of two months. It is an admitted fact by the complainant that the second loan amount was given to the accused when accused did not return the first loan amount despite repeated requests.
Complainant has not explained that when the first loan amount which was expected to be returned on 28/03/2016 and the accused did not respond to the complainant no returned the loan amount despite several Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 10 of 15 visits why another loan amount was advanced to the accused. It is now to believe for any reasonable man to give advance a loan to a person of such a huge amount when the previous loan given to the same person are not returned.
Therefore, analyzing the evidences above, the complainant has not able to prove her financial capacity to advance both the loans and the intension of the complainant for advancing the second loan when the first loan was not returned. On the other hand, the accused had successfully raised a probable defence that the loan in question was never advanced.
2. Whether the cheque in question was issued against legally recoverable debt?
It is the case of complainant that cheque in question was given towards repayment of loan. Accused contradicted the same on the ground that cheque was given to his business parther Mithlesh who has further misused the same and therefore, it was not given in discharge of any liability.
As per Section 139 of NI Act, it is presumption in favour of the complainant that cheque was given is discharge of liability.
Accused has taken the stand that the cheque was given to one person namely Mithlesh and he has further passed it over to the complainant. Therefore, Mithlesh becomes important witness to establish the fact regarding the receiving of the cheque. It is pertinent to note that this witness is not called by either of the parties. Further, the complainant Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 11 of 15 has asked no question during the cross-examination of the accused regarding Mithlesh. On the contrary, when the complainant was cross- examined on this aspect, she agreed that she and Mithlesh are known to each other.
Mere possession of a cheque does not amount to the discharge of the burden of proof on the complainant. Analyzing the evidence adduced by both the parties, complainant has not able to give any satisfactory answer why the cheque in question was given to her.
3. Whether the accused received the legal notice of demand?
Under Illustration (b) of Section 114 of the Evidence Act and Section 27 of the General Clauses Act, 1897, service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Although this presumption is rebuttable but mere denial to receive the notice is not sufficient to rebut the presumption. It is for the accused to show that common course of business was interrupted by some supervening circumstances.
It is the case of the accused that the notice was sent on the incorrect address despite the fact that complainant claims a long friendly relations with the accused and that husband of the complainant has visited repeatedly the house of the accused. Perusal of record shows that as per Ex. CW1/5 & Ex. CW1/5A, the legal notice of demand was not delivered at Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 12 of 15 the address of the accused and on 02.06.2016 of Ex. CW1/5 and Ex. CW1/5A, the report is 'delivery attempted : Missent'. Therefore, the burden of proof lies on the complainant to show that the legal notice of demand reached at the accused. Accused has repeatedly disputed the mailing address on which legal notice of demand was sent. Complainant on the other hand, has not answered that if her husband was regularly visiting the house of the accused and they were known to each other full of time, then why the correct address was not placed on record on any of the stages.
Therefore, the accused has able to raise a probable defence regarding non-receiving of the legal notice of demand. It is observed that the address mentioned in the legal notice of demand, memo of parties is different and the address mentioned on the bail bonds furnished by the accused. It is also observed that at the stage of evidence, the accused has stated his address as H.No. 50, Saidulajab Village, Saket, New Delhi which is also the address of the surety furnished by the accused. The complainant in the final arguments stated that the house no. 50 is that of the accused and he deliberately did not accept the legal notice of demand. This is not sufficient statement on the part of the complainant to cover up the fact that the legal notice of demand was sent to an incorrect address. The complainant did not put any question to the accused relating to approximity of both the house numbers and the fact that the house number mentioned by the complainant is incorrect.
As per clause (g) of Section 114 of The Indian Evidence Act, Court may Presume existence of certain facts - "The court may presume the existence of any fact which it thinks likely to have happened, regard being had Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 13 of 15 to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case; t hat evidence which could be and is not produced would, if produced, be unfavourable to the person who withhold it........."
Therefore, complainant has not been able to show that legal notice of demand received by the accused.
14. In consonance of the presumptions u/s 118 and 139 of the NI Act following essentials are required to be established-
i). The complainant in the present case has not able to prove a financial capacity to advance the loan in question and the fact that loan was advanced to the accused. The accused has able to raise a probable defence that the loan was never advanced to him.
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability- accused has been able to rebut the same through the cross-examination of the complainant.
Therefore, accused is been able to raise a probable defence to create the doubt in the story of the complainant that the cheque was issued against the legally recoverable debt.
iii) The cheque so issued was returned unpaid by the banker of the drawer, same is admitted by both the parties.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within15 days of the receipt of the said notice - The accused disputed receiving of the legal notice. Through the Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 14 of 15 evidence address by the accused, accused has been able to prove that the accused was not staying on the address on which legal notice of demand was sent.
15. Conclusively, in light of the above discussions and reasons, this court finds accused Vikash Dhama is not guilty of offence punishable U/s 138 of the Act. Hence, accused Vikash Dhama stands acquitted for the said offence.
Copy of this judgment be given dasti to the complainant. Announced in the open court on 01.09.2018 (NIHARIKA KUMAR) MM-04/NI Act/SD/Saket New Delhi/01.09.2018 Certified that this judgment contains 15 pages and each page bears my signature.
(NIHARIKA KUMAR) MM-04/NI Act/SD/Saket New Delhi/01.09.2018 Sangeeta Yadav vs Vikash Dhama CC No. 462567/2016 Page 15 of 15