IN THE COURT OF MR. [ENTITY] METROPOLITAN MAGISTRATE (SOUTH) 03, N I ACT, SAKET COURTS : NEW DELHI CC NO: 486/2016 Mr.[ENTITY] son of Mr.J R Sharma, r/o 28A/1, Jia Sarai, Hauz Khas, New Delhi LR of complainant Mr.[ENTITY] (as amended memo of parties) Ms.[ENTITY] wife of Late Mr.[ENTITY] r/o 28A/1, Jia Sarai, Hauz Khas, New Delhi Complainant Versus [ENTITY] son of Mr.Jai Narain Aggarwal r/o H.104, Mehrauli, Kishan Garh, New Delhi. Accused Offence Complained of or proved : Under [SECTION] of [ACT] [CASE NUMBER] [ENTITY] v. Rajinder Aggarwal Page 1 to 13 Plea of the Accused : Pleaded not guilty Date of filing : 22.09.2009 Date of Institution : 24.09.2009 Date of reserving judgment/order : 26.04.2019 Final Order/Judgment : Convicted Date of pronouncement : 27.05.2019 Judgment: 1.
Briefly stated, case of the complainant is that the accused and the complainant were having good friendly relation with each other. That accused had approached the complainant for taking a friendly loan of Rs.10 lakhs in the month of January 2008 which was given in two installments and the same was acknowledged by accused vide a separate receipts. That accused was promised to return the same as per the terms and conditions agreed by the complainant and the accused on or before 1st July 2009. That in view of his aforesaid liability, accused had issued a cheque bearing number 000047 dated 21.07.2009 for a sum of Rs.5,00,000/ drawn on Kotak Mahindra Bank Ltd., Punjabi Bagh Branch, New Delhi as part payment drawn in favour of the complainant (hereinafter referred to as the 'cheque in question'). That thereafter, the complainant presented the said cheques for [ENTITY] v. Rajinder Aggarwal Page 2 to 13 encashment and the same were returned unpaid upon presentation on account of "Account Closed" vide cheque return memos dated 23.07.2009. That a legal notice dated 13.08.2009 was duly sent by the complainant to the accused in this regard, but to no avail. That accused failed to pay the cheque amount within the prescribed period. Hence, the present complaint under [SECTION] of [ACT] (hereinafter referred to as '[ACT]').
2. Upon service of summons, accused entered an appearance on 26.08.2014 and was admitted to bail on 26.08.2014. Notice under [SECTION] [ACT] was served upon the accused on 17.03.2017, to which he pleaded not guilty and claimed trial. In his statement of defence, accused stated that he had taken the shop on rent from the complainant and his rented shop was just adjacent to the office of the complainant. Accused has further stated that he had vacated the said shop in year 2003 and at the time of vacation of the said shop, some documents had been left in the shop and cheques were amongst the material which had been left by him at the shop. Accused was thereafter allowed to cross examine the [ENTITY] v. Rajinder Aggarwal Page 3 to 13 complainant under [SECTION] [ACT]. After closing of complainant evidence, matter was fixed for recording statement of the accused under [SECTION] [ACT]. In the said statement recorded on 20.09.2016, accused denied all the facts of the case. Matter was thereafter fixed for defence evidence as the accused wishes to lead defence evidence and thereafter the matter was fixed for final arguments.
Evidence:
3. In order to support his case, the complainant substituted the Legal Representative Ms.[ENTITY] of the complainant as the complainant [ENTITY] has expired and vide order dated 27.09.2016 Ms.[ENTITY] has been substituted as Legal Representative (hereinafter referred as LR) of the complainant. LR of complainant examined herself as CW1 and tendered his affidavit Ex.CW1/1 into evidence wherein averments made in the complaint were reiterated. He also relied upon various documents such as Ex.CW1/A is cheque in question dated 21.07.2009, Ex.CW1/B which is return memo dated 23.07.2009, [ENTITY] v. Rajinder Aggarwal Page 4 to 13 Ex.CW1/C which is legal notice dated 13.08.2009, Ex.CW1/D, Ex.CW1/E & Ex.CW1/F which are the acknowledgement receipt and postal receipt. Thereafter, complainant evidence was closed.
4. Accused in his defence has examined himself as DW1 and deposed that he had taken a shop on rent from the complainant and his shop was adjacent to the office of the complainant and when he vacated the said shop some documents as well as some articles were left in the shop.
DW1 further deposed that his signed cheque book also lying in the said shop. Thereafter, accused defence evidence was closed.
The law applicable:
5. I have heard the submissions made on behalf of the parties and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles, relevant for adjudication of complaint under [SECTION] of [ACT], laid down in several judgments of Hon'ble Supreme Court of [ENTITY] v. Rajinder Aggarwal Page 5 to 13 India and of various High Court including our own High Court. In my considered opinion, it is now well settled that in case the accused admits his signatures on the cheque in question, there arises a presumption in terms of [SECTION] and [SECTION] of the [ACT] to the effect that the same was issued by him for valid consideration and in discharge of legally enforceable debt or liability towards the complainant.
Though a Division Bench of Hon'ble Supreme Court of India in [ENTITY] v. Dattatraya G. Hegde, (2008) 4 SCC 54 has observed that the presumption under [SECTION] of the [ACT] does not go to the extent of presuming the existence of a legally recoverable debt, however in a later judgment titled as [PRECEDENT] a larger Bench of Hon'ble Supreme Court has expressed its disagreement with the aforesaid view holding that there is also an initial presumption regarding the existence of legally recoverable liability under [SECTION] of the [ACT]. Further, it has been held that the presumptions under [SECTION] and [SECTION] of the [ACT] are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as the accused can rebut the same [ENTITY] v. Rajinder Aggarwal Page 6 to 13 by placing reliance on the material brought on record by the complainant. It is also well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. The aforesaid propositions of law have been laid down by Hon'ble Supreme Court in [PRECEDENT], [ENTITY]'s case (Supra) and [PRECEDENT] case (Supra). It is further well settled in the aforesaid judgments that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts The Hon'ble Delhi High Court has held in [PRECEDENT] that if the accused rebuts the presumption raised under [SECTION] and [SECTION] of [ACT] by adducing probable defence, then the leverage of presumption in the favour of the complainant vanishes and then the complainant has to prove the case on the touchstone of beyond the reasonable doubt like a regular criminal trial.
[ENTITY] v. Rajinder Aggarwal Page 7 to 13 Arguments and appreciation of evidence:
6. Counsel for the complainant has argued that all the requirements of [SECTION] [ACT] have been met with in the present case and hence, the accused be convicted.
Counsel for the accused has, on the other hand, argued that the cheques in question were not issued in discharge of legal liability and the same has been misused by the complainant and hence, the present case deserves to be dismissed. The following issues are to be decided in the present case:
1. Whether the complainant is successful in raising the presumptions under [SECTION] of [ACT]?
2. If yes, whether the accused have been successful in raising a probable defence?
As Issue No.1:
7. The cheque in question bearing Ex.CW1/A is admitted by the accused to have his signature during his cross examination as DW1. The aforesaid cheque in question was [ENTITY] v. Rajinder Aggarwal Page 8 to 13 returned vide return memo bearing Ex.CW1/B. The legal notice bearing Ex.CW1/C was sent to the accused vide postal acknowledgment bearing Ex.CW1/E and the legal notice was duly replied by the accused vide Mark X1.
Thereafter, the complaint was filed within limitation period. Thus, presumption under [SECTION] and [SECTION] [ACT] can be raised that the cheque in question was for a legally recoverable debt and for valid consideration. The issue no 1 is decided in affirmative.
As Issue No.2:
8. The succinct of the defense raised by the accused at the time of framing of notice, statement under [SECTION] [ACT] and in his examination in chief when the accused stepped into the witness box as DW1 is that the accused had took a shop on rent from the complainant and the same was vacated in year 2003. During vacating of the shop, some documents had been left in the shop including the cheques in question which were stolen by the complainant. Now what is noteworthy is that the allegation of the accused is that the cheques were [ENTITY] v. Rajinder Aggarwal Page 9 to 13 stolen when the shop was vacated ie. year 2003 and they were stolen by the complainant but the cheque in question is dated 21.07.2019 and was presented in the bank in year 2009. Had the complainant stolen the cheque in question in year 2003, then why did the complainant waited for 6 years before presenting the cheque in question. Apart from this, the accused has admitted in his crossexamination that he has never filed any complaint qua the stolen cheques and has never given any instructions of stop payment to the bank for stoppage of misuse of the cheque. Even after receiving of the notice, the accused replied to the complainant vide Mark X1 and its para 4 it has been again alleged that the complainant stole the cheques from the shop of the accused. Thereafter, also, the accused kept quiet and has not initiated any legal action against the complainant. The whole defense raised by the accused appears to be frivolous and does not inspire confidence at all.
9. It has been submitted by the counsel for the accused that non production of receipt as mentioned in para 3 of the complaint and non production of ITR of the complainant raises a [ENTITY] v. Rajinder Aggarwal Page 10 to 13 serious doubt on the veracity of the complaint. It is correct that in para 3 of the complaint, it has been stated by the complainant that while receiving the loan in question, acknowledgements were given by the accused. But before the complainant himself could be crossexamined in the present case, he expired and his wife Ms.[ENTITY] was substituted as Legal Representative. It is understandable that the wife of the complainant was not aware about the whereabouts of the receipts. Even in the absence of the receipts, whole transaction per se cannot be treated to be false. As far as non production of ITR is concerned, the Hon;ble Dehi HIgh Court in [PRECEDENT] [3] [CASE NUMBER] has held that :
Breach of [SECTION] of the Income Tax provides the penalty on the violation thereof but does not declare the transaction as null and void. Thus whether or not the transaction of loan is shown in ITR or not, or loan above Rs 20,000/ was paid in cash, is not the concern of the court but of Income Tax Authorities. Nevertheless, where the loan is not established by any documentary proof, then the fact that the loan was not shown in the ITR becomes relevant. Where the loan can [ENTITY] v. Rajinder Aggarwal Page 11 to 13 be established by any other documentary proof like receipt, then the non relefection of the loan in the ITR becomes irrelevant.
Thus, the non production of ITR is not fatal to the present case.
10.The LR of the complainant (CW1) has deposed that she has witnessed her husband handing over the loan in question to the accused at 11.30 am. In this respect, the counsel for the accused has argued that as per the deposition of CW 1, if she remains in pathology lab throughout the day and she has no off day also, then how can she be present at the time when the loan in question was given. To this, the witness has clarified that before the death of her husband she used to go to the office of the complainant but after the death of the complainant, she started to running the pathology. The explanation given by the CW1 appears satisfactory.
11.As discussed above, the main defense of the accused seems to be improbable and the inconsistencies pointed out by the accused in the complaint are not sufficient to dent the case of [ENTITY] v. Rajinder Aggarwal Page 12 to 13 the complainant. Thus, issue no 2 is decided in negative.
Conclusion
12.In view of the above discussion, I am of the considered opinion that the complainant has established his case beyond reasonable doubt by proving all the ingredients under [SECTION] [ACT] by leading cogent evidence and the accused has failed to probabilize his defence. Accused is hereby convicted for offence punishable under [SECTION] [ACT]. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.
Announced in the Open Court on this 27th May 2019. This Judgment consists of 13 signed pages.
[ENTITY] signed by [ENTITY] Date: 2019.05.27 JAIN 15:38:20 +0530 ([ENTITY])
Metropolitan Magistrate03 (South), [ACT] Saket/New Delhi/27.05.2019 [ENTITY] v. Rajinder Aggarwal Page 13 to 13