Full Text
JUDGMENT
SANJAY VERMA ..... Petitioner
For the Petitioners : Ms. Amita Gupta, Advocate.
For the Respondent : Mr. H.G.R. Khattar, Advocate.
1. Petitioner impugns judgment dated 19.12.2014 whereby the Appellate Court has set aside the judgment dated 23.09.2013 of the trial court. The Trial Court by the impugned judgment dated 23.09.2013 had convicted the respondent of an offence under Section 138 of the Negotiable Instruments Act.
2. The Appellate Court has reversed the judgment and acquitted the respondent of the offence under Section 138 of the Negotiable Instruments Act.
3. Complaint was filed by the petitioner herein contending that a friendly loan of Rs. 4,90,000/- was given to the respondent as they 2019:DHC:1583 had good relations and in discharge thereof the respondent had issued the subject cheque dated 03.11.2009 for Rs. 4,90,000/-. When the cheque was presented, it was returned unpaid for the reasons ‘insufficient funds’.
4. Trial Court by the judgment dated 23.09.2013 held that the issuance of the cheque was not in dispute and despite services of legal notice payment was not made by the respondent. Trial Court was of the view that the evidence on record was not supportive of the innocence of the accused. Trial Court negated the defence of the respondent that the cheque was issued in blank to Subhash Aggarwal, the employer of the petitioner and the cheque had been misused. Trial Court held that as no complaint was filed against the petitioner, so the plea of the respondent was not believable.
5. Appellate Court by the impugned order found that the petitioner was an employee working in the shop of Mr. Subhash Aggarwal and earning only Rs. 15,000/- per month and his wife was earning only Rs. 15,000/- per month. The Appellate Court found that evidence established that the petitioner’s family expenditure was about Rs. 20,000/- per month. Appellate Court noticed that there was no material to show that the petitioner had capacity to make an arrangement of Rs. 4,90,000/- to give as friendly loan to the respondent.
6. Appellate Court found favour with the statement of the respondent that he had a transaction with Mr. Subhash Aggarwal (employer of the petitioner) to whom blank cheques were given as security and the cheque had been misused and filled in the name of the petitioner and deposited in the bank. Appellate Court has also noticed that the ink used on the body of the cheque was different from the ink used for signing the cheque.
7. Looking at the monthly income and the household expenditure of the petitioner and the fact that the petitioner had not been able to disclose the source from where cash of Rs. 4,90,000/- was arranged for advancing the friendly loan, the Appellate Court was of the view that it was not believable that petitioner would arrange a huge sum of Rs. 4,90,000/- when his monthly income was only Rs. 15,000/- per month to advance as a friendly loan to the respondent.
8. Appellate Court has also noticed that the petitioner has failed to show or aver as to when the alleged loan of Rs. 4,90,000/- was given to the respondent and demanded back.
9. The appellate court, with regard to the defence of the respondent that he had transaction with Mr. Subhash Aggarwal employer of the petitioner, held as under: - “8. It is the case of the appellant that he had some transactions with Subhash Aggarwal, who is owner of Shagun Jewellers and he had given some blank cheques to Subhash Aggarwal. To prove this fact the appellant has examined Sh. Om Prakash S/o Sh. Khem Chand as DW-1, who is business partner of the appellant. This witness deposed that he used to accompany the appellant to the showroom of Subhash Aggarwal and whenever there was shortage of money Gopal Halwai (appellant) used to give cheques. Similar statement is given by DW-2 Ms. Usha Rani Malhotra that in her presence 4 to 5 blank cheques were given to Subhash Aggarwal. DW-3 is son of the appellant, who has also deposed that whenever, there was shortage of money Sh. Subhash Aggarwal used to take blank cheques from his father. After receiving the payment Subhash Aggarwal avoided to return the cheques to the appellant. The complainant, who appeared as CW-1 has admitted that he is working with Shagun Jewellers and his employer name is Subhash Aggarwal. He has also admitted that he is working with him for the last 10 years. This witness also admitted that his employer has six branches in Delhi and his brother is working at Uttam Nagar. I am of the view that respondent is working with Shagun Jewellers and his employer name is Subhash Aggarwal. This witness also admitted that his brother's wife is also working under Subhash Aggarwal. The appellant is able to prove that complainant is an employee of Subhash Aggarwal. It is also come to record that Subhash Aggarwal has also filed another criminal complaint against the appellant u/s. 138 N.I. Act. I am, of the view that appellant was able to prove before the Trial Court that he has no concern with the respondent and he had dealing with Subhash Aggarwal. I am of the view that appellant was able to rebut the presumption u/s. 118 of N.I. Act.
9. Ld. MM has held that testimony of DW-1 and DW- 2 are hear say and the same are not admissible. DW-1 categorically stated that he used to accompany the appellant to the showroom of Subhash Aggarwal and whichever there was shortage of money appellant used to give him cheques. I am of the view that testimony of DW- 1 is not hearsay, as he had visited the showroom of Subhash Aggarwal. No suggestion was given to this witness that he had not visited the showroom of Subhash Aggarwal with appellant.
10. The Ld. MM has also held that no complaint was given by the accused/appellant so his defence cannot be taken into consideration. The Id. MM has failed to appreciate that witness DW-1 has categorically stated that Subhash Aggarwal has threatened them and they lodged a complaint against Subhash Aggarwal but the police of Bindapur Police Station has not registered the FIR against Subhash Aggarwal. DW-3 has also categorically staled that the complainant has also approached the appellant and requested him to settle the matter with Subhash Aggarwal. This witness also stated that they used to purchase jewellery from showroom of Subhash Aggarwal situated at Arya Samaj Road, Uttara Nagar. It is also admitted that Subhash Aggarwal has filed criminal case against the appellant. It is not denied that Subhash Aggarwal has also filed other criminal complaint u/s. 138 N.I. Act. DW-1 was cross examined by the counsel for the respondent and it was suggested that the Subhash Aggarwal has also filed a complaint case, which is pending in the Court of Ms. Harlin Singh, Ld. MM, THC and is fixed for 24.02.2012. The complainant has not stated that the cheque is filled by the accused in his handwriting. DW-4 has also proved that cheque book bearing No. 205451 to 205460 was issued to the accused on 28.02.2007. This witness also stated that another cheque book bearing No. 375001 to 375020 was issued to the appellant on 17.07.2007. Thus, from the testimonies of DWs and DW-4 particularly it is proved that cheque bearing No. 205455 was issued on 28.02.2007 and thereafter, another cheque book was issued on 17.07.2007. Thus, in view of not denial by the complainant that Subhash Aggarwal has also filed another criminal complaint against the appellant, I am of the view that appellant is able to rebut the presumption under Section 118 NI Act.
11. The complainant admitted that the appellant only knows how to sign. He also admitted that he did not know whether the appellant has signed in English or Hindi. I am of the view if the cheque was given as security by the appellant then the complainant must be aware as to whether the appellant has signed the same in English or in Hindi.
12. The Id. MM has also held in the judgment that the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question. I am of the view the appellant was able to rebut the presumption u/s. 118 of NI Act. I am of the view that onus shifted to the complainant to show from which source he had arranged the amount of Rs. 4.90,000/-. The complainant failed to tell the name of person from whom he had arranged this amount. I am of the view that complainant is not able to prove that cheque in question was given by the appellant in discharge of the liability.
13. I am of the view that Id. MM has wrongly held that income of the complainant is Rs. 50,000/- to Rs. 60,000/per month. The Id. MM has failed to consider the evidence of DWs and,no reason has been explained in rejecting the testimonies of DWs. The complainant admitted to be an employee of Subhash Aggarwal for the last 8-10 years and this fortify the stand of the appellant that the cheque was given by him to Subhash Aggarwal and it is also not denied that Subhash Aggarwal has filed another complaint against the appellant.”
10. Appellate Court has found that there were dealings between respondent and Subhash Aggarwal and whenever there was shortage of money with Subhash Aggarwal, respondent would give him cheques. Appellate Court has also found that respondent had given complaints against Subhash Aggarwal to the appellant, however, no action was taken. The Appellate Court also found that Subhash Aggarwal had also initiated proceedings under Section 138 of the N.I. Act against the respondent and the cheque had been given as a security cheque.
11. As noticed above, the Appellate Court has held that respondent has been able to rebut the presumption that arises under Section 118 of the N.I. Act. Petitioner has thereafter failed to prove beyond reasonable doubt that he had given the loan to the respondent and the cheque was issued for repayment of the said loan.
12. Finding of the Appellate Court that the petitioner has not shown the source of funds or that he had the capacity to make arrangement of a huge sum of Rs. 4,90,000/- and extend the same as a friendly loan for someone who was barely known to him, is neither perverse nor unreasonable. Perusal of the record shows that the respondent has been able to rebut the statutory presumption.
13. It is very surprising that a person who earns only Rs. 15,000/per month would make an arrangement of Rs. 4,90,000/- and give the same as a friendly loan. No date of extending the loan or rate of interest at which such loan was extended, has been mentioned. Neither there is any document executed nor the date when the loan was and of its repayment is mentioned.
14. The defence raised by the respondent that he had in fact transactions with Mr. Subhash Aggarwal and had handed over the cheque to Subhash Aggarwal who has then misused the same and filed the subject complaint as a proxy litigation through his own employee is a probable defence and rightly rebuts the statutory presumption.
15. Perusal of record as also the judgment of the Appellate Court shows that the finding returned by the Trial Court was clearly erroneous and contrary to record. The view taken by the Appellate Court is a well reasoned and probable view in facts of the present case. The Appellate Court has rightly returned the finding that the respondent has been able to rebut the presumption and accordingly the onus shifted on the petitioner to prove beyond reasonable doubt that the loan was extended to the respondent and the subject cheque was issued for repayment of the loan. As rightly held by the appellate court, the petitioner has failed to show the same.
16. Even before this court, the petitioner has not been able to establish that he had the capacity to extend a friendly loan of Rs. 4,90,000/- without any condition and that such a loan was extended and was to be repaid and the subject cheque was issued for repayment of the loan.
17. In view of the above, I find no infirmity with the view taken by the Appellate Court in its impugned order dated 19.12.2014, in setting aside the judgment and conviction of respondent by the Trial Court by order dated 23.09.2013.
18. In view of the above, I find no merit in the petition. The petition is accordingly dismissed.
SANJEEV SACHDEVA, J MARCH 15, 2019 ‘rs’