IN THE COURT OF MS. SUSHEEL BALA DAGAR, METROPOLITAN MAGISTRATE, DWARKA COURTS,DELHI Unique Identification No. RO433812010 CC No. : 20118/10 PS : Azad Pur U/s 138 NI Act Satin Credit Care Network Ltd., Having its registered office at: 306, Lusa Tower, Azadpur Commercial Complex New Delhi110 033 Complainant Versus Mr. [ENTITY] S/o Late Sh. Harish Chander Giri M/s Anjali Provision Store, E436, Basant Gali, Jagjit Nagar New Usmanpur, Delhi53 Accused Date of Institution : 07th May, 2010 Plea of accused : Pleaded not guilty Date on which judgment was reserved : 16th December, 2011 Order : Acquitted Date of decision : 16th December, 2011 CC. No. 20118/10 Satin Credit v. [ENTITY] 1/11 J U D G M E N T :
1. The case of the complainant is that the accused was provided personal loan facility vide personal loan agreement G8059 dt. 28.04.2008 for a sum of Rs. 66,510/. The accused after paying a few installments stopped making the payments. A notice dt. 02.02.2010 was issued to the accused to pay the outstanding amount. The accused after receiving the aforesaid notice came and settled the matter and issued cheque bearing no. 273643, dt. 04.03.2010 drawn on State Bank of India, Chandni Chowk, Delhi6 in favour of complainant for an amount of Rs. 99,473/ towards discharge of legally enforceable debt and/or liability arising out of the above mentioned loan agreement. The said cheque was returned unpaid with the remarks "Funds Insufficient" vide return memo dt. 10.03.2010. The complainant issued a legal demand notice dt. 12.03.2010 to the accused and the same was duly served upon the accused. Accused did not pay the cheque amount within statutory period, hence, the complainant has filed the present case.
2. The complainant led pre summoning evidence by way of affidavit and summons were issued against the accused vide order dt. 05.07.2010 CC. No. 20118/10 Satin Credit v. [ENTITY] 2/11 for the offence under [SECTION] [ACT] known as the 'Act'). On appearance of the accused notice under [SECTION] [ACT] dt 29.03.2011 was served upon the accused for committing offence under [SECTION] of the Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case the authorized representative of the complainant got himself examined as CW1. CW1 filed an affidavit in evidence which is Ex. CW1/1 wherein he reiterated the contents of the complaint before the Court. He proved Board Resolution as Exhibit CW1/A, Power of attorney as mark A, Certificate of incorporation as mark B (colly 3 pages), certificate of registration as mark C, loan agreement as mark D, Cheque in question as Exhibit CW1/B, Cheque returning memo as Exhibit CW1/C, Legal notice of demand alongwith postal receipt and [ACT] as mark E(colly 3 pages); loan account statement as Ex. CW1/E.
4. CW1 stated that the mode of payment was in cash and by way of cheque. The accused has given six cheques at the time of loan agreement as PDCs for a sum of Rs. 3695/ each. Accused has given one EMI in cash and two EMI through cheques. After the tenure is over, complainant CC. No. 20118/10 Satin Credit v. [ENTITY] 3/11 company charges interest @ 3 % per annum upon outstanding amount i.e. 55,425/along with a sum of Rs. 20/ is charged as per day as late payment. CW1 filed the original loan agreement which is marked D and statement of account Ex. CW1/E. No document or record was kept when 6 PDCs were taken from the accused. The 6 PDCs were kept in the file of the loan agreement of the accused. The accused has taken the 6 PDCs back and has given the one payment in cash.
5. The statement of accused was recorded under [SECTION] [ACT] in which all the incriminating evidence was put to the accused, [ENTITY]. In reply to the said incriminating evidence the accused stated that he took a loan of Rs. 50,000/ in the year 2008. He had paid 3 EMIs of Rs. 3695/ each. He did not receive any legal demand notice. He had given 8 blank signed cheques for security purpose and the cheque in question is one of those cheques. He did not fill the loan agreement. He has no liability to pay the cheque in question.
6. In his defence accused examined himself as DW1. DW1 reiterated his statement u/[SECTION] [ACT] on oath and deposed that he had taken two loans from the complainant vide loan account no. G8059 & G8069 for a sum of Rs. 50,000/ each. Before disbursal of the loan amount he was CC. No. 20118/10 Satin Credit v. [ENTITY] 4/11 asked to submit 10 cheques. The complainant has already used six cheques including the cheque in question pertaining to loan account no G8059 and the rest of the four cheques have been used by the complainant in loan account no. G8069. He had submitted all cheques as blank signed to complainant. He produced his pass book statement from his bank as Ex. DW1/1 (colly 5 pages), counter foil of his cheque book as mark A and statement of his loan account as Ex. DW1/2. Defence evidence was closed and the matter was listed for final arguments.
7. I have heard Sh. [ENTITY], Ld. Counsel for the accused and [ENTITY], Ld. Counsel for the complainant and perused the Court record. Ld. Counsel for the complainant has relied on the case laws of Citi N. A. New Delhi v. J. K. Jute Mills Co. Ltd. Kanpur AIR 1982 Del. 487; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; Indo CC. No. 20118/10 Satin Credit v. [ENTITY] 5/11 [PRECEDENT]; [PRECEDENT]. Counsel for the complainant argued that the cheque in question was issued on persuasion for discharge of liability after settlement between the parties and not as security.
8. Counsel for the accused has argued that no settlement ever took place between the parties. It is argued that blank signed security cheque given at the time of disbursement of loan has been misused by the complainant to file this false complaint by filling exorbitant amount. It is argued that accused has no liability to pay the cheque in question.
9. It is admitted case of both the parties that cheque in question was signed by the accused and he had entered into an agreement with the complainant. Thus, the initial onus for raising presumption under [SECTION] of the Act is discharged by the complainant. The service of legal demand notice mark E is presumed as per [SECTION] of [ACT]. Now it was for the accused to rebut the presumption under [SECTION] of the Act by leading direct evidence or by showing preponderance of probabilities in his favour.
10. The point to be considered in this case is whether the cheque in question was issued against the legally enforceable liability as stated by CC. No. 20118/10 Satin Credit v. [ENTITY] 6/11 the complainant or was it a security cheque which has been misused by the complainant to file this complaint. Both the parties have admitted that the mode of repayment of the loan was by way of monthly installments. It is the defence of the accused since the time notice under [SECTION] [ACT] was served upon him that the cheque in question is a blank signed cheque given at the time of disbursement of the loan for security purpose. He reiterated the same in his statement u/[SECTION] [ACT].
11. It is well settled preposition of criminal law that the case of the prosecution / complainant should stand on its own legs and it is the duty of the complainant to prove its case. Nonetheless, the complainant can not be allowed to reconstruct a story different from the one propounded or pleaded in the complaint. In the present case the complainant has been found doing exactly the same. The complainant has stated in para 3 of the complaint that " the accused approached the complainant and availed the personal loan vide personal loan agreement G8059 dt. 28.04.2008 for a sum of Rs. 66,510 ( Rupees sixty six thousand five hundred and ten only). The payment schedule under the said agreement was on the basis of daily installment of Rs. 3695 X 18 months "
The complainant has placed on record loan agreement mark D in CC. No. 20118/10 Satin Credit v. [ENTITY] 7/11 support of his complaint. Perusal of the loan agreement mark D schedule part shows that the loan is for an amount of Rs. 50,000/whereas in the complaint Para 3, the complainant has stated that it is for an amount of Rs. 66,510/. CW1 during cross examination has admitted that the loan amount sanctioned was Rs. 50,000/ only. As there is contradiction in the documents filed / statements made in evidence by the complainant and the facts as mentioned in the complaint, hence, from the complaint itself a doubt is cast on the version of the complainant. All the more, complainant has stated that the said amount was to be paid in 18 EMIs on the basis of daily installment of Rs. 3695/ only. This version itself creates a doubt whether it is daily installment or monthly installment. The loan account statement Ex. CW1/E produced by the complainant in evidence clearly shows that an amount of Rs. 3695/ was to be paid monthly. Thus, the complainant has been taking contradictory stand during course of the trial. It is clear that the complainant is trying to reconstruct a new story at the evidence / arguments stage to fill up the lacuna in its complaint.
12. Now coming to the question whether the cheque in question has been issued for any consideration or not? In para 5 of the complaint, CC. No. 20118/10 Satin Credit v. [ENTITY] 8/11 complainant stated that a notice dt. 02.02.2010 to pay the outstanding amount was issued to the accused and after receiving the said notice, the accused came and settled the matter with the complainant after due calculations, negotiations and adjustments for a sum of Rs. 99,473/ and issued the cheque in question. DW1 has denied in his cross examination that any such settlement took place. Thus, the situation is evenly poised. In order to believe any one version, I have to see the totality of facts and circumstances of the case.
13. It is the cardinal principle of laws "one who asserts must prove his case." It is the version of the complainant, that the outstanding dues notice dt. 02.02.2010 was given to the accused. But the complainant has not placed the same on record for reasons best known to it. The statement of account Ex. CW1/E produced by the complainant nowhere shows the outstanding liability to be Rs. 99,473/. No settlement letter is placed on record by the complainant. Thus, the settlement made by the accused as alleged by the complainant appears doubtful. The complainant version of issuance of impugned cheque towards settlement is also apparently not tenable.
14. Further, the arguments of the counsel for the complainant that CC. No. 20118/10 Satin Credit v. [ENTITY] 9/11 accused has accepted his loan liability. Hence, entered into settlement of entire loan amount and after negotiation / calculations gave the cheque in question, does not hold ground. At the stage of cross examination CW1 has stated that the additional interest of 3% is charged on the outstanding amount per annum. But at the stage of arguments, counsel for the complainant has submitted that the additional interest is calculated at the rate of 3% per month. The accused has stated that he was never told about additional rate of interest being charged per month. As the complainant has been changing its statement again and again, the version of the complainant is not sustainable. Moreover, mere acceptance of the loan liability does not give the right to the complainant to fill the blank EMIs cheque given at the time of availing the loan for an exorbitant amount and present it any time without even informing the accused about the same.
15. After the disclosure of the defence by the accused, the onus of proof shifted on the complainant. The Complainant has not been able to discharge the burden of onus which shifted on it. Hence, the complainant has not been able to prove beyond reasonable doubt that the cheque in question was issued against any consideration on the date on which it is stated to be presented. The accused has been able to raise preponderance CC. No. 20118/10 Satin Credit v. [ENTITY] 10/11 of probabilities in his favour, which are believable.
16. In the totality of the circumstances and keeping in view the discussion above made, the accused has been able to rebut the presumption that the cheque was issued for consideration or legally enforceable debt / liability under [SECTION] and [SECTION] of the Act. Accused is acquitted. Bail bonds cancelled. Surety stands discharged. Documents, if any, be returned to the accused after cancellation of endorsements. File be consigned to record room after necessary compliance.
Announced in the open Court ([ENTITY] ) on this 16th day of December, 2011 Metropolitan Magistrate Dwarka Courts, Delhi. All Pages Signed. CC. No. 20118/10 Satin Credit v. [ENTITY] 11/11