IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE([ACT])-03 (SOUTH):SAKET COURTS:NEW DELHI CC NO: 474740/2016 [ENTITY] S/o Late Sh. Ram Charan R/o A-105, Devli Extn., New Delhi - 110080 Complainant Versus [ENTITY] S/o Sh. Raj Kumar Gupta R/o B-2/59, Tigri Extension, New Delhi Also at: B-259, Tigri Extn. New Delhi Accused Offence Complained of or proved : Under section 138 of [ACT] Plea of the Accused : Pleaded not guilty Date of filing : 16.05.2015 Date of Institution : 19.05.2015 Date of reserving judgment/order : 02.08.2018 Final Order/Judgment : Acquitted Date of pronouncement : 13.08.2018 JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
[ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018
1. By this Judgment, I will dispose of the present complaint under [SECTION] of the [ACT] filed by the complainant against accused on account of dishonour of cheques bearing number[SECTION]063 dated 26.02.2015 for a sum of Rs.
25,000/-, 251066 dated 15.01.2015 for a sum of Rs.10,000/- and 251070 dated 24.12.2014 for a sum of Rs.9000/- drawn on Axis Bank Ltd., Chitranjan Park, New Delhi in favour of complainant (hereinafter referred to as the cheques in question).
2. Brief case of the complainant as per complaint is that in the month of November 2013, accused had approached the complainant for availing a friendly loan of Rs.1 lakh and the loan of Rs.1 lakhs was accordingly given by complainant to the accused in cash which the accused had agreed to repay by the end of December 2014. In December 2014, when complainant demanded the aforesaid loan back from the accused, accused had issued the aforesaid three cheques in question in favour of complainant, which on presentation were returned unpaid with remarks "Drawer Signatures Differs" vide return memos dated 26.03.2015, whereupon legal notice dated 07.04.2015 was sent to the accused [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 through speed post and courier, and since, according to the complainant, the accused has failed to make the payment of cheques amount in question to the complainant, despite service of legal notice of demand, he has committed the offence under [SECTION] of the [ACT].
3. Upon receipt of the complaint, cognizance of the offence was taken and the accused was summoned vide order dated 19.05.2015. Accused appeared in response to summons of the court and was admitted to bail. Thereafter, a separate notice explaining accusations to the accused under [SECTION] of the [ACT] was served upon him in terms of [SECTION] [ACT] on 22.09.2016. Accused did not plead guilty and claimed trial. Simultaneously the defence disclosed by the accused was recorded by the court, wherein, accused had stated that he never took any laon from the complainant. He submitted that he had taken a shop on rent from the complainant and cheques in question were given by him to the complainant as security cheques regarding rent of the said shop which were not returned by the complainant despite receiving the entire rent. He further stated that [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 he did not receive any legal notice. Accused was thereafter allowed to cross examine the complainant in terms of [SECTION] of [ACT] vide order dated 22.09.2016.
4. It is significant to note that in terms of judgment of Hon'ble Supreme Court in [PRECEDENT] and Hon'ble Delhi High Court in [PRECEDENT], the pre- summoning evidence by way of affidavit Ex. CW-1/1 shall be read as post-summoning evidence of the complainant. Even otherwise, the said affidavit was adopted by complainant in his post summoning evidence. In the aforesaid affidavit, complainant had relied upon the following documents:
Ex.CW-1/A: Original letter allegedly written and signed by the accused undertaking to repay the loan amount with interest. Ex.CW-1/B : Original cheque bearing no. 251070 dated 24.12.2014 for a sum of Rs.9000/- drawn on Axis Bank Ltd., Chitranjan Park, New Delhi.
Ex.CW-1/C : Original cheque bearing no. 251066 dated 15.01.2015 for a sum of Rs.10000/- drawn on Axis Bank Ltd., Chitranjan Park, New Delhi Ex.CW-1/D : Original cheque bearing no. 251063 dated [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 26.02.2015 for a sum of Rs.25000/- drawn on Axis Bank Ltd., Chitranjan Park, New Delhi Ex.CW-1/E to Ex.CW-1/G: Original return memos dated 26.03.2015 Ex.CW-1/H: Legal Notice of demand dated 07.04.2015 Ex.CW-1/I : Postal receipt regarding dispatch of legal notice.
Ex.CW-1/J: Courier receipt regarding dispatch of legal notice. Ex.CW-1/J & Ex.CW-1/K: Internet generated tracking reports of speed post and courier regarding delivery of legal notice. Ex.CW-1/L: The present complaint u/[SECTION] of [ACT].
5. CW-1 was duly cross-examined by Counsel for accused and thereafter, CE was closed vide order dated 19.03.2018. Statement of accused under [SECTION] [ACT] was recorded on 27.03.2018, putting entire incriminating evidence against him wherein he has substantially reiterated the defence taken by him during his plea u/[SECTION] [ACT] Since the accused had chosen to lead evidence in his defence, matter was adjourned for DE.
6. Accused thereafter examined himself as DW-2 after his application u/[SECTION] [ACT] was allowed by the court vide order datd 24.07.2018. Accused also examined one official witness namely [ENTITY] who tendered the complaint Ex.DW-2/A, [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 received by SHO PS-Sangam Vihar vide [CASE NUMBER] dated 06.04.2015, in his evidence. Both DW-1 and DW-2 were discharged without cross examination since the complainant had stopped apeparing after 27.03.2018. Thereafter, on a separate statement of accused, DE was closed vide order dated 24.07.2018. Final arguments on behalf of the accused were thereafter heard on 02.08.2018 whereas none has come forward on behalf of the complainant to advance final arguments in the matter.
7. It is submitted by counsel for accused that the complainant has failed to prove his case by leading any cogent evidence and in fact the presumption, if any, arising in favour of complainant in terms of [SECTION] and [SECTION] of [ACT] has been successfully rebutted by the accused by way of cross examination of complainant as well as by way of uncontroverted testimony of accused as DW-2 which is duly corroborated by the testimony of DW-1. He submits that the complainant has failed to prove the legally enforceable liability of the accused towards the complainant to the extent of cheque amount in as much as he has neither proved the alleged withdrawal of part of the loan amount by him from his bank account nor had [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 he reflected the alleged loan in question in his ITR. The plea of the complainant regarding grant of loan of Rs.1 lac by him and issuance of cheques in question by the accused for repayment of the same, according to him, cannot be believed in view of the fact that no reasonable person would accept three cheques of Rs.44,000/- only against the liability of Rs.1 lac without initiating any proceedings for recovery of the balance amount. The only document sought to be produced by the complainant, according to counsel for accused, as an acknowledgement on the part of accused of his liability towards the complainant that is the letter Ex.CW- 1/A clearly shows that there is no whisper in the entire letter about the loan of Rs.1 lac and it appears to be only in relation to rent. Even otherwise, accdording to him, the complainant has failed to prove that the aforesaid document was either in the handwriting or had been signed by the accused. He submits that during his examination in chief, accused had categorically denied the execution of letter Ex.CW-1/A and the testimony of accused has remained uncontroverted since he was not cross examined by counsel for complainant. He has thus prayed for acquittal of [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 accused under [SECTION] of the [ACT].
8. I have heard the submissions made on behalf of the accused 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 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 [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 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 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.
9. Now let us examine the facts of case in hand in the light of [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 aforesaid legal principles. In the case in hand, accused has not disputed his signatures on the cheques in question at any stage of the trial and hence the aforesaid admission would give rise to a two fold presumption in favour of the complainant i.e. not only regarding existence of legally enforceable liability of accused towards the complainant but also regarding issuance of cheques in question by accused in favour of complainant in discharge of the aforesaid liability. Indisputably, the said presumption is rebuttable in nature and the accused could have rebutted the said presumption even without stepping into the witness box through cross- examination of complainant's witnesses while relying upon the material brought on record by the complainant.
10.The complainant has alleged that the cheques in question were issued by the accused in discharge of his liability to repay the friendly loan of Rs. 1,00,000/- availed by the accused from the complainant in the month of November 2013. On the other hand, defence of the accused is that he had never availed any loan from the complainant and the cheques in question were given by him to the complainant to secure the payment of rent since being a tenant [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 he had failed to make the payment of rent for a period of almost 6- 7 months and the complainant had started forcing him to vacate the same.
11.In support of his case complainant has examined himself as the sole witness. During his cross examination, he had admitted that the accused was a tenant in his shop. When confronted with the question as to whether he had taken any acknowledgement in writing from the accused at the time of grant of the loan, complainant denied the same and volunteered that he had not taken any acknowledgement since the accused was his tenant. It is significant to note that in the complaint, complainant has merely alleged that he was known to the accused since last five years and the accused came very close to the family of complainant with the passage of time. Significantly, he has not disclosed in the complaint as to how he had come to know the accused since last around five years and it was only on prodding of the accused that the complainant had admitted the fact that he knew the accused because he was a tenant in his shop. The aforesaid concealment on the part of complainant regarding the accused being a tenant in his [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 shop assumes significance in view of the plea taken by the accused in his defence that the cheques in question were given by him to secure the payment of rent and not for repayment of any loan.
12.Though the complainant had failed to disclose any specific date on which the alleged loan was given by him to the accused in his complaint as well as evidence by way of affidavit, he has stated during his cross examination dated 19.03.2018 that the loan of Rs.1 lac was given by him to the accused on 17/18.11.2013 partly out of the cash available with him and partly after withdrawal from his bank account. He has failed to produce the statement of his bank account to prove the aforesaid fact. He further admitted that he had not reflected the alleged loan transaction between the parties in his ITR. Though, during his cross examination the complainant has admitted that no interest was contemplated between the parties on the alleged loan, however, a bare perusal of letter Ex.CW-1/A shows that it has been mentioned therein that the accused had taken the loan on interest. No satisfactory explanation could be given by the complainant regarding the said discrepancy though he had tried to reason out the same stating that in the police [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 station accused himself had agreed to pay interest at the bank rate.
13.There is no whisper in the entire complaint or evidence by way of affidavit or even during cross examination of complainant that he had ever lodged any police complaint against the accused. In the absence of any police complaint, it is beyond the comprehension of the court as to why the accused would have written the letter Ex.CW-1/A to the SHO PS-Sangam Vihar. The accused had categorically denied the execution of the aforesaid letter not only during cross examination of complainant but also during his examination u/[SECTION] [ACT] and u/[SECTION] [ACT] Testimony of accused as DW-2 in this regard has remained uncontroverted in as much as he had not been cross examined by the complainant. Even otherwise in the document Ex.CW-1/A there is no whisper about the alleged loan of Rs.1 lac.
14.Complainant has failed to explain as to why the cheques of Rs.44,000/- only had been accepted by him against the total liability of the accused of Rs.1 lac. It is significant to note that complainant has failed to initiate any proceedings against the accused for recovery of the balance amount of the alleged loan of [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 Rs.1 lac. It is highly improbable that a person will accept the cheques of Rs.44,000/- only against the liability of Rs.1 lac and will not present the same on their respective due dates waiting for almost three months for presentation of the same. Complainant has failed to explain why cheques in question were not presented by him on their respective due dates and as to why the cheque Ex.CW-1/B was presented by him after expiry of its validity period.
15.Under the aforesaid circumstances, in my considered opinion, accused has successfully rebutted the presumption arising in favour of complainant and despite rebuttal of the same, complainant has failed to prove the liability of the accused to the extent of cheques amount in question as on the date of presentation of the cheques beyond reasonable doubts. On the other hand, the accused has stepped into the witness box as DW-2 and has categorically deposed that he had never availed any loan from the complainant of Rs.1 lac and cheques in question were given by him to the complainant as security for payment of rent which had fallen overdue for a period of 6-7 months at the rate of Rs.7000/- per [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018 month which have been misused by the complainant despite payment of rent by the accused to the complainant. The aforesaid testimony of accused has remained uncontroverted and in fact, even the complainant had admitted during his cross examination that accused had paid the entire rent.
16.The accused had also denied the receipt of legal notice of demand and testimony of accused in this regard has remained uncontroverted. Even otherwise, the demand raised by the legal notice Ex.CW-1/H was not valid in view of the fact that through the aforesaid notice, complainant had raised a demand of the total amount of all the three cheques in question despite the fact that the first cheque dated 24.12.2014 had not been presented by the complainant within the prescribed period of its validity. One of the essential ingredients of offence u/[SECTION] of [ACT] is that the cheque must be presented by the payee or holder in due course within the period of its validity. Since, one of the cheques i.e. cheque Ex.CW- 1/B has been presented by the complainant on 25.03.2015 i.e. after expiry of three months from the date of cheque, dishonour of the same will not attract the provisions of [SECTION] of [ACT]. [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018
17.In view of the aforesaid findings, accused is hereby acquitted of the charge under [SECTION] of the [ACT] amended upto date).
18.Ordered accordingly.
19.Accused has already furnished PB and SB in sum of Rs. 5000/- each in terms of provisions of [SECTION] of [ACT] and the same have been accepted and shall remain in force for a period of six months from today.
Announced in the Open Court on this 13th day of August, 2018. This Judgment consists of 16 signed pages.
([ENTITY]) Metropolitan Magistrate-03 ([ACT]) (South) Saket Courts, New Delhi/13.08.2018 [ENTITY] Vs. [ENTITY] Judgment dated 13.08.2018