Vipul Kumar Gupta vs Vipin Gupta
2012 Latest Caselaw 4978 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Crl.L.P.461/2011

                                  Decided on :   24th August, 2012

VIPUL KUMAR GUPTA     ..... Petitioner
              Through: Mr. K.K. Sharma for Mr. Prag Chawla,
                        Adv.

                         versus

VIPIN GUPTA                     ..... Respondent
                    Through:    Mr. S.K. Saxena, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

Crl.M.A.11464/2011

1. This is an application seeking condonation of 44 days delay in

filing the leave to appeal.

2. For the reasons mentioned in the application, as sufficient

cause has been shown, the delay of 44 days in filing the

appeal is condoned.

3. The application stands disposed of.

Crl. L.P.461/2011

4. This is a leave to appeal filed by the appellant against the

judgment dated 1.6.2011 passed by the learned ACMM-I,

North-West, Rohini Courts, New Delhi, dismissing the

complaint of the appellant under Section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as

the Act), acquitting the respondent/accused.

5. Briefly stated, the facts of the case are that the appellant had

filed a complaint under Section 138 of the Act against the

respondent/accused, alleging therein that he was known to

the father of the respondent/accused, being the Secretary of

Creative Video Films Welfare Society. It has been alleged that

the appellant gave a personal friendly loan of ` 9,00,000/- to

the respondent/accused, who was in need of the same, by

borrowing a sum of ` 4,50,000/- from his father, a sum of `

2,00,000/- from his sister, Nidhi Gupta and the remaining

amount from his own funds. The respondent/accused is

alleged to have issued a cheque bearing no.478455 dated

21.11.2009, drawn on Oriental Bank of Commerce, Tagore

Garden Branch, New Delhi on account of the said repayment

of the loan. The said cheque, on presentation, was

dishonoured by the Oriental Bank of Commerce, the Banker of

the respondent/accused on account of 'insufficient funds'.

The appellant is purported to have received a Memo dated

27.11.2009, intimating regarding the dishonour of the

cheque, whereupon he issued a legal demand notice dated

1.12.2009, requiring the respondent/accused to pay the

amount within a period of one month and since the said

amount was not paid, the action for prosecuting the

respondent/accused was initiated by filing a complaint under

Section 138 of the Act. The appellant examined himself as a

witness at the pre-summoning stage and proved the relevant

documents, whereupon the respondent/accused was

summoned.

6. A notice under Section 251 of the Cr.P.C. was given to the

respondent/accused on 7.8.2010 and the post-summoning

evidence was taken by the Court by way of an affidavit of the

appellant as CW1. He examined himself as the sole witness

and proved the return memo dated 27.11.2009 as CW1/2,

legal notice dated 1.12.2009 as CW1/3, postal receipt, UPC

and the returned envelope as CW1/4 to 1/6 respectively.

During the cross-examination, the appellant admitted that he

is an Income-Tax payee and maintains books of accounts

regularly about his income and expenditure, but he had not

shown the loan given to the respondent/accused. He neither

did mention, either in the complaint or in the evidence, the

date, month or the year when he was approached by the

respondent/accused for the grant of loan nor did he obtain

any receipt from the respondent/accused of having taken the

loan. The defence of the accused in his statement under

Section 313 Cr.P.C. was that there were five blank cheques

duly signed by him, which were handed over to the appellant,

as he had promised to get the loan of the respondent

sanctioned under the Prime Minister Rojgar Yojana. The

respondent examined himself as DW1 and supported his own

defence.

7. The learned Trial Court, after hearing the arguments,

acquitted the respondent/accused by observing that although

under Section 139 of the NI Act, there is a presumption

regarding the cheque having been issued by the drawer in

favour of the drawee, but that presumption is a rebuttable

presumption. The appellant is required to prove independently

that the cheque in question has been issued by the

respondent/accused either in discharge of his liability or a

legally recoverable debt. It is with regard to this legally

recoverable debt or liability that the learned ACMM, after

appreciating the evidence of the two witnesses, i.e., the

appellant and the respondent/accused, came to the conclusion

that the appellant has not been able to prove that the cheque

was issued by the respondent/accused in discharge of his

liability or any legally recoverable debt. The reason given by

the learned ACMM for coming to such a conclusion was that

the appellant in his cross-examination has neither given the

date, month or the year when the loan was taken nor had he

obtained any receipt from the respondent/accused. The

amount of loan has neither been reflected in the Income Tax

Return (though he states that he is an Income Tax payee and

files his Income Tax Returns regularly), nor has it been

reflected in the Books of Accounts. On the contrary, the

cheque in question is signed by the respondent with a

different ink and the particulars regarding the date, name and

the amount, which has been filled up in the cheque, is with a

different ink. This has been considered by him to be the

sufficient reason to draw an inference regarding the

probability of the genuineness of the defence of the

respondent/accused and acquit him.

8. I have heard the learned counsel for the appellant as well as

the learned counsel for the respondent and have gone

through the impugned order.

9. I find myself in agreement with the reasoning given by the

learned ACMM that before a person is convicted for having

committed an offence under Section 138 of the Act, it must be

proved beyond a reasonable doubt that the cheque in

question, which has been made as a basis for prosecuting the

respondent/accused, must have been issued by him in the

discharge of his liability or a legally recoverable debt. In the

facts and circumstances of this case, there is every reason to

doubt the version given by the appellant that the cheque was

issued in the discharge of a liability or a legally recoverable

debt. The reasons for this are a number of factors which have

been enumerated by the learned ACMM also. Some of them

are that non-mentioning by the appellant in his Income Tax

Return or the Books of Accounts, the factum of the loan

having been given by him because by no measure, an amount

of ` 9,00,000/- can be said to be a small amount which a

person would not reflect in his Books of Accounts or the

Income Tax Return, in case the same has been lent to a

person. The appellant, neither in the complaint nor in his

evidence, has mentioned the date, time or the year when the

loan was sought or given. The appellant has presented a

cheque, which obviously is written with two different inks, as

the signature is appearing in one ink, while as the remaining

portion, which has been filled-up in the cheque, is in a

different ink. All these factors prove the defence of the

respondent to be plausible to the effect that he had issued

these cheques by way of security to the appellant for getting

a loan from Prime Minister Rojgar Yojana. The

respondent/accused has only to create a doubt in the version

of the appellant, while as the appellant has to prove the guilt

of the accused beyond reasonable doubt, in which, in my

opinion, he has failed miserably. There is no cogent reason

which has been shown by the appellant which will persuade

this Court to grant leave to appeal against the impugned

order, as there is no infirmity in the impugned order.

10. Accordingly, the leave to appeal is refused and the appeal

itself is dismissed.

V.K. SHALI, J.

August 24, 2012 'tp'