IN THE COURT OF SH. [ENTITY], [ENTITY] ([ACT])- 12, DWARKA COURTS, NEW DELHI M/s [ENTITY] Versus [ENTITY] P.S : Mandawali U/s : 138 [ACT] 1.
Serial No./CC No. of the case : 78/13 2. Name of the complainant : M/s [ENTITY] Registered Office at : C-34, (New C-265), Marg-4A, West Vinod Nagar, Delhi-110092. Also at : D-182, Main Road, West Vinod Nagar (Mandawali), Delhi-110092. 3. Date of Institution : 15.03.2013 4. Name of the accused, his : [ENTITY] parentage and residence S/o Sh. Satiah Mohan, R/o H.No. 27, Khasara No. 420, Laxmi Vihar, Burari, Delhi-84. 5. Date when judgment was : 03.08.2013 reserved 6. Date when judgment was : 12.08.2013 pronounced 7. Offence complained of and : Offence Under [SECTION] of proved [ACT] 8. Plea of accused : Accused pleaded not guilty and claimed trial 9. Final Judgment Acquitted -:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the complainant M/s [ENTITY] Under [SECTION] of [ACT] (hereinafter referred to as [ACT]) against the accused [ENTITY].
2. In the present complaint, complainant has submitted that accused in capacity of member of the complainant society vide membership account number 2529 availed loan facility of Rs. 50,000/- from the complainant on 13.01.2010. It is further submitted that the accused in discharge of his legal liability has issued the cheque bearing no. 755267 dated 27.01.2013 for a sum of Rs. 52,306/- drawn on Canra Bank, Azadpur Branch, Delhi-33 in favour of the complainant. It is further submitted that when the cheque in question was presented by complainant with its banker for encashment, same was returned unpaid by the Drawee Bank with the returning memo dated 30.01.2013 for the reason "Insufficient Fund". Thereafter, the complainant sent a Legal Demand Notice dated 04.02.2013 through Speed Post and Courier calling the accused to make the payment of dishonoured cheque. It is further averred that despite service accused failed to make the payment of cheque amount demanded through Legal Notice, thereby committing the offence Under [SECTION] of [ACT] for the prosecution of which the present complaint has been filed.
3. After considering the material on record, the cognizance of the offence U/[SECTION] of [ACT] was taken and accused was summoned on 15.04.2013. The accused appeared in the court on 18.05.2013 and was admitted to bail.
4. Notice U/[SECTION] [ACT] was framed against the accused on 03.07.2013. At the time of framing of notice, the accused pleaded not guilty and claimed trial.
5. The complainant has examined Sh. [ENTITY], Authorized Representative as CW1. CW 1 has filed his evidence by way of affidavit Ex. CW1/1 and relied upon the following documents : - (A) Copy of amendment of byelaws is exhibited as Ex. CW1/A. (B) Copy of extract of minutes of meeting dated 10.02.2013 is exhibited as Ex. CW1/B. (C) Original cheque in question is exhibited as Ex. CW1/C. (D) The cheque returning memo is exhibited as Ex. CW1/D. (E) Office copy of the legal notice is exhibited as Ex. CW1/E. (F) Speed Post Receipt and Courier Receipt are exhibited as Ex. CW1/F and Ex. CW1/G respectively. (G) Speed Post Tracking Report is exhibited as Ex. CW1/H. (H) Statement of account of the accused is exhibited as Ex. CW1/J. CW 1 was discharged after cross-examination.
6. No other witness has been examined by the complainant and complainant evidence was concluded on 04.07.2013.
7. The accused was examined U/[SECTION] [ACT] and all the incriminating evidence were put to the accused. In his statement the accused has admitted the fact of taking loan in question from the complainant and submitted that he had given the blank signed cheque in question to the complainant at the time of taking loan facility from the complainant. He further submitted that he had deposited Rs. 12,000/- at the time of subscription of membership of the complainant society and has also paid 10 installments of Rs. 1800/- (approx.) each. The accused denied the receipt of legal demand notice.
8. The accused has examined himself U/[SECTION] [ACT] as DW 1. DW 1 has relied upon the statement of account in respect of account no. 2006101066709 which is Ex. DW1/1.
9. No other witness has been examined by the accused and the defence evidence was concluded on 30.07.2013.
10 Final Arguments on behalf of the both the parties heard.
11. The Ld. Counsel for the complainant has argued that the accused has admitted the fact of loan taken by him from the complainant and also admitted that he has not repaid the entire loan amount. He further argued that the accused gave the cheque in question to discharge his liability against the loan given to him which got dishonoured and accused failed to pay the cheque amount even after receiving the legal demand notice. Hence, accused is liable to the convicted for the offence U/[SECTION] [ACT].
On the other hand, Ld. Counsel for the accused has argued that accused was disbursed loan amount of Rs. 45,400/- only and accused has paid 11 installments as per statement of account Ex. CW1/J. Therefore, the accused is not liable to make the payment of cheque amount in question i.e. Rs. 52,306/-. Therefore, no offence U/[SECTION] [ACT] is made out against the accused. Ld. Counsel for the accused has relied upon the judgments tilted as [PRECEDENT], M/s [PRECEDENT] and M/s [PRECEDENT] .
12. The complainant has alleged that accused was granted a loan of Rs. 50,000/-. The complainant has failed to file the loan agreement on record on which the CW 1 has relied upon heavily in his evidence by way of affidavit Ex. CW1/1. On the other hand, the accused has produced his copy of passbook of Canara Bank Ex. DW1/1 wherein it is shown that the accused was disbursed a loan of Rs. 45,400/- vide cheque no. 79361500 on 21.01.2010. Moreover, the Ld. Counsel for the complainant put a suggestion to the accused during cross-
examination U/[SECTION] [ACT] that he was informed about deduction of Rs. 3600/- for compulsory deposit, Rs. 500/- for building fund and Rs. 500/- for Kalyan Fund was made from total loan amount of Rs. 50,000/-. The said suggestion was denied by the accused and also proved the fact that the accused was disbursed loan amount of Rs. 45,400/- only. The complainant failed to prove that the aforementioned deductions were made as per the loan agreement because no such loan agreement was filed on record.
13. The CW 1 in his evidence by way of affidavit has stated that accused had given the cheque in question for repayment of loan given to him. While during cross-examination of accused, it comes on record that the cheque amount i.e. Rs. 52,306/- includes principal amount of Rs. 38,000/-, interest amount of Rs. 12,306/- and compulsory deposit of Rs. 2000/-. There is no evidence on record to show that the charges of compulsory deposit also comes under the liability of loan against the accused. The Ld. Counsel for the complainant during arguments has argued that compulsory deposit is necessary for any member to continue his membership with the complainant society. It means that the liability of compulsory deposit has nothing to do with the liability of loan given by the society and the cheque amount also includes the payment of Rs. 2000/- towards compulsory deposit which is contradictory to the statement of CW 1 where he has deposed that cheque in question was given by the accused to discharge his liability towards the loan given to him.
14. In view of the judgment of [PRECEDENT], complainant has to prove the existence of liability of the accused to the tune of cheque amount. To prove the liability of the accused in the present case, the most important document is the loan agreement executed between the complainant and accused. Complainant has failed to produce the loan agreement on record despite the fact that CW 1 has heavily relied upon the loan agreement in his evidence by way of affidavit.
15. The complainant has heavily relied upon the statement of account Ex. CW1/J to prove the liability of the accused in the present case.
16. [SECTION] of [ACT] reads as under :
"Entries in the books of account including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability."
Morever, the Hon'ble High Court of Madras in the case titled as [PRECEDENT] has observed that If no other evidence besides the accounts were given, however, strongly those accounts may be supported by the probabilities, and however, strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to [SECTION], [ACT], be the basis of a decree. The hon'ble Supreme Court of India in the case titled as [PRECEDENT] has observed that A conspectus of the above decision makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person.
17. In view of [SECTION] of [ACT] & above mentioned two judgments, the liability of accused cannot be fixed only on sole basis of statement of account Ex. CW1/J. The entire case of the complainant stands on the loan agreement which is the best evidence to prove the liability of the accused in the present case but complainant has failed to produce the loan agreement for the reasons best known to it.
18. In view of the above discussion, the complainant has failed to prove the liability of accused to the tune of cheque amount.
19. In the facts and circumstances of the present case, on appreciation of the evidence and on the basis of material on record, I hold that accused is able to adduce the rebuttal evidence by raising a probable defence which creates doubt about the existence of legal enforceable debt or liability, hence, in such a scenario, the burden shift back to the complainant which the complainant has failed to discharge.
20. Therefore, no offence U/[SECTION] of [ACT] is made out against the accused. Hence, accused stands acquitted.
ANNOUNCED IN THE OPEN COURT ON 12.08.2013 All the pages from 1 to 7 are signed by me. ([ENTITY]) [ENTITY] ([ACT]) - 12, DWARKA COURTS,NEW DELHI.