#8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th September, 2015
+ CRIMINAL L.P. 635/2015
RAJ KISHORE PANDEY ..... Petitioner
Through Mr. Suresh Sharma, Advocate along
with Petitioner
versus
RUCHIKA VIJ ..... Respondent
Through None CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL SIDDHARTH MRIDUL, J (ORAL)
1. The present is a petition praying for leave to appeal against the judgment and order dated 14th July, 2015 in Complaint Case No. 310/1/12passed by the Court of Metropolitan Magistrate (South), Saket Courts, New Delhi, whereby the leave petitioner's complaint under Section 138 of the Negotiable Instruments Act, 1881 resulted in the acquittal of the accused.
2. The facts that are relevant for the adjudication of the present leave petition are that the accused is stated to have taken a loan from the petitioner Criminal L.P. 635/2015 Page 1 of 9 to the tune of Rs. 2,40,000/- and in lieu thereof, issued four cheques bearing nos. 730486, 730479, 730480 and 345113 dated 25.04.2012, 28.04.2012, 28.04.2012 and 02.05.2012 in the sum of Rs. 1,00,000/-; Rs. 50,000/-; Rs. 50,000/-; and Rs. 40,000/- respectively, all drawn in Vijaya Bank, Hauz Khas, New Delhi.
3. It is stated by the petitioner that upon depositing the aforesaid cheques for encashment, they were dishonoured. The petitioner further avers that despite service of the statutory legal notice, the accused did not repay the loan.
4. Upon service of summons, the accused appeared and pleaded not guilty claiming trial.
5. The petitioner examined himself in support of his case. A perusal of his cross-examination by the learned counsel appearing on behalf of the accused reveals that the petitioner did not disclose in his complaint that he was also known by alias Hemant and also signed by the said name. It further reveals that the petitioner is not an income tax assessee and does not possess any licence for money lending.
6. The petitioner deposed that he had never disbursed any other loan to anybody apart from the subject loan of Rs. 2,40,000/- given to the accused. Criminal L.P. 635/2015 Page 2 of 9 The petitioner further deposed that he had not withdrawn the said amount of Rs. 2,40,000/- from his bank account at the time of extending the subject loan. The petitioner lastly deposed before the concerned Magistrate that at the time he disbursed the subject loan, there was no third person present.
7. The petitioner was recalled for further cross-examination on 19th January, 2015 and deposed as follows:-
"On S.A.
XXXX by Sh. Arun Satija, Ld. Counsel for the accused. The accused was introduced by Mr. Vinod to me in the month of May, 2010. It is correct that I advanced the loan to the accused only after May, 2010, I advanced the loan to the accused on 28.10.2010. My family consists of my wife, two daughters and one son. All my children are minor and are school going.
It is wrong to suggest that all the cheques in questions were undated and were given to me as security in April 2010 (financial year 2010-11) in lieu of the said loan that is why no documents were executed and no guarantee was taken by me. I have not received any part of loan amount in question from the accused.
It is wrong to suggest that I used to take the amount from the accused on daily basis against the present loan. I do not maintain any diary or any record of receiving the amount from the accused. Vol. I have not received any amount from the accused against this loan. At this stage, witness is shown a copy having entries of receiving the amount against the loan on daily basis. It is correct that these all entries are in my handwriting and I had signed as Hemant. The said entries in the copy are Ex. CW1/D1-D10 (running into 10 written pages and rest are blank). It is wrong to suggest that I have received the money from the accused on daily basis Criminal L.P. 635/2015 Page 3 of 9 of loan amount in question and all the entries are in Ex. CW1/D1-D10. Vol. these entries pertains to earlier loan advanced to the accused.
It is wrong to suggest that these entries are not of previous loan. It is further wrong to suggest that these entries of amount pertain to the amount received in loan amount in question. It is correct that I have not mentioned in my notice or present complaint or in my affidavit about any previous loan.
I advanced the first loan to the accused on 18.04.2010. It is wrong to suggest that no previous loan was advanced except the present loan. I cannot say whether I have received Rs. 1,79,280/- from the accused as the entries show in the Ex. CW1/D1-D10 but same can be calculated whatever I have received against the previous loan. It is incorrect to suggest that I have received Rs. 1,79,280/- against the present loan of Rs. 2,40,000/- as shown entries in the Ex. CW1/D1-D10. It is further incorrect to suggest that these entries pertain to present loan in question. I have not filed any affidavit before this Court when the complaint was filed. I had sent the legal notice through my counsel to the accused. I cannot say whether the said notice was received by the accused or not. It is wrong to suggest that no notice was sent to the accused or served. It is wrong to suggest that the cheque in question were given to me in the presence of Ms. Madhumita, as security while advancing loan in April, 2010 and the same was undated.
It is wrong to suggest that I am deposing falsely and a false complaint filed against the accused by fabricating the cheques in question or putting date on them. It is further wrong to suggest that accused has no liability to pay of the cheques in question amount. It is wrong to suggest that I had already received amount of Rs. 1,79,280/- from the accused by accepting the money and maintaining a copy and made entries on daily basis of this loan amount in question out of Rs. 2,40,000/-. It is incorrect to suggest that even Criminal L.P. 635/2015 Page 4 of 9 after taking the above money I had not return the cheques to the accused and misused the same."
RO&AC Sd/-
(GURMOHINA KAUR) METROPOLITAN MAGISTRATE NI Act: NEW DELHI 19.01.2015"
8. A perusal of the said deposition reveals that the petitioner changed tracks on being confronted with a copy of the Exhibit CW1/D1-D10 (running into ten pages). The petitioner now deposed that although he received money from the accused on daily basis towards the return of a loan as evidenced by the Exhibit CW1/D1-D10, however, the said document pertain to entries relating to an earlier loan advanced to the accused. It is also relevant to note that the petitioner had earlier deposed that he had never extended any other loan to anybody, apart from the subject loan of Rs. 2,40,000/- extended to the accused.
9. The petitioner further admitted that he had not mentioned the purported earlier loan either in his complaint or in his affidavit in support thereof.
10. In her defence, the accused admitted to having taken a loan of Rs. 2,40,000/- from the petitioner, and asserted that a sum of Rs. 1,79,280/- had Criminal L.P. 635/2015 Page 5 of 9 already been returned to the latter on daily basis. The accused further expressed readiness to pay the balance amount. The accused also asserted her right to lead defence evidence.
11. On behalf of the accused, DW-1 deposed as follows:-
"On S.A.
DW-1: Statement of Ms. Madhumita Banerjee daughter of Mr. Munish Kumar Banerjee r/o 47/1, Ground Floor, Malviya Nagar, New Delhi.
I know accused Ruchika Vij since last 10 years as she was working with me. we meet once or twice in a week and also visit each others house. We also discuss personal things with each other. In April, 2010, she asked me for financial help but at that time I was not in a position to help her. After 2-3 days after my inability to financial help her then she called me that not to worry as she got the person who will arrange some money and I was also ask to be present at that time. In April, 2010 she has taken some money from the complainant and at that time in my presence, she handed over 4 undated cheques of Rs. 1 lakh and two cheques for Rs. 50,000/- and one cheque of Rs. 409,000/- to the complainant Raj Kishore Pandey @ Hemant as security. It was mutually agreed between the complainant and the accused that the complainant would come and receive the amount on daily basis and will maintain a copy/notebook and will make entry in the notebook on daily basis. In 2013, I came to know through Ruchika that the complainant had misused the abovesaid four undated cheques by putting dates on it and filed a false complaint against the accused despite receiving the part payment on daily basis from the accused. At that stage, I assured Ruchika that I will help her in the court if needed. On 26.03.2015, the complainant met me at the Sai Baba Mandir, Sirifort between 1 to 2.30 when he himself after seeing me in the Criminal L.P. 635/2015 Page 6 of 9 Mandir approached me and requested solution in this case and this can be confirmed by the CCTV footage installed at the Mandir on the relevant day.
Xxxx by Shri Pramod Sharma, counsel for the complainant We were working together in a company upto 2005- 2006. After 2006, I was doing my own business at Punjabi Bagh to till date. I used to spend 3-4 hours on my work sometimes in the morning or sometimes in the evening. The accused opened his own parlor in year 2009 at Hauz Khas. At any stage, my signatures were not obtained by the accused or the complainant as a witness of the loan or making the payments. It is wrong to suggest that I am deposing falsely at the instance of the accused being a friend of the accused. It is wrong to suggest that no loan transaction was done in my presence. Vol. in my presence 2-3 times he had signed in the copy after received the payment from the accused. I do not remember the date when the accused signed the above mentioned. It is further wrong to suggest that cheques were not security cheques as I mentioned in my chief. It is wrong to suggest that I am deposing falsely.
RO&AC Sd/-
(GURMOHINA KAUR) MM-01 (South), NI Act New Delhi/30.05.2015"
12. A perusal of the examination-in-chief and the cross-examination of the said defence witness reveal that it was this witness who had introduced the accused to the petitioner and that it was mutually agreed between the parties in her presence that the accused would repay the subject loan on daily basis. Criminal L.P. 635/2015 Page 7 of 9 On a question from counsel appearing on behalf of the leave petitioner, she clearly stated that the said cheques were undated as security for the subject loan and that despite having recovered a substantial part of the subject loan on a daily basis, the petitioner had misused the four undated cheques by endorsing dates on them and filing a false complaint against the accused.
13. After carefully examining the facts and circumstances of the case and the deposition of the parties as afore extracted, the Metropolitan Magistrate acquitted the accused by way of order dated 14th July, 2015.
14. In view of the foregoing, the present leave petition is devoid of merit and is hereby dismissed.
15. However, before parting, it would be incumbent for me to consider initiating appropriate action against the petitioner for what prima facie seems to be an offence under Section 195 IPC. I, therefore, appoint Mr. Vikas Pahwa, learned senior counsel as amicus curiae, who is present in this Court today to assist this Court on the said question. A copy of the paper book be provided to learned amicus curiae during the course of the day.
16. The time has come for Courts to take a serious view of falsehoods uttered on oath by litigating parties.
17. List this matter for the said purpose on 19th October, 2015. Criminal L.P. 635/2015 Page 8 of 9
18. The petitioner shall remain present in Court on the next date of hearing.
SIDDHARTH MRIDUL, J SEPTEMBER 14, 2015 sd Criminal L.P. 635/2015 Page 9 of 9