A K Ahuja vs Suresh Kumar Talwar & Anr
2012 Latest Caselaw 3433 Del

$~33

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Decision: 22.05.2012

+                            CRL.L.P. 270/2012

      A K AHUJA                                            ..... Petitioner
                             Through:   Mr.K.B.Andley, Sr.Advocate with
                                        Mr.M.Shamikh, Advocate.

                    versus


      SURESH KUMAR TALWAR & ANR                             ..... Respondent
                    Through:


      CORAM:
      HON'BLE MR. JUSTICE M.L.MEHTA (Oral)

           ORDER

% 22.05.2012

1. This criminal leave petition is preferred against the judgment dated 03.03.2012 whereby, the respondents were acquitted of the offence under Section 138, N.I.Act in the complaint filed by the petitioner.

2. The petitioner filed a complaint under Section 138, N.I.Act before the court of M.M. against the respondents alleging the dishonour of cheque of Rs. 4,95,000/- given towards the discharge of the liability. It was the petitioner's case that the respondents Suresh Kumar Talwar and his wife Savita Talwar had taken loan from him from time to time for their business needs in the year 1992 and 1993. It was his case that ultimately compromise was arrived at and a cheque bearing No.

945459 dated 3.4.1998 of Rs. 4,95,000/- was given to him by the respondent No. 1 through his wife Savita Talwar. It was his case that the cheque on presentation was dishonoured for the reasons 'Account Closed' and that the respondents failed to pay the cheque amount despite issue of notice dated 6.6.1998. The petitioner/complainant had examined three witnesses including himself. The defence of the respondents was that they had good family relations with the petitioner and that the latter used to borrow money from them due to his financial constraints. Sometime in July, 1993, they discovered that few of their cheques were missing and that though, they suspected the same to be stolen by the complainant (petitioner), but due to family relations, they did not enquire from him.

3. From the testimonies of the petitioner's witnesses recorded as PW1 and fully reproduced in the impugned judgment, the learned M.M. recorded a finding of the fact that the complainant (petitioner) was not able to disclose the material particulars about the alleged loan of Rs. 2,45,000/- given to the respondents/accused. He could not give the date and the month when the said loan was extended to them. Rather, he had stated that he had calculated Rs. 2,45,000/- orally. He also did not know if it was in the year 1991-1992 or 1992-1993 and as to how much was the amount paid by him during any of these periods. In answer to a question, he categorically stated that he could not state specific amount, month or year of the amounts paid to the accused persons. Then, he again stated that he made the payments during financial year 1991-1992 and 1992-1993. Further, according to the complainant (petitioner), he knew the accused persons since 1988- 1989 and used to extend loans to them. Undisputedly, another complaint being 373/1 dated 25.8.1993 was also filed by him against the respondents /accused

persons. The proceedings in the said case were pending in the court uptil 30th April, 1998. That complaint was also in respect of two cheques amounting to Rs. 95,000/-. It was recorded and rightly so that it appears to be improbable that the complainant (petitioner) who had filed a complaint under Section 138, N.I.Act and was litigating for five years till 30.4.1998 would again accept a cheque from them on 3.4.1998 for a sum of Rs. 4,95,000/-. When the relations were strange between the parties and the litigation between them was pending as on 3.4.1998, it just looks improbable that the complainant (petitioner) would agree to accept another cheque of huge amount of Rs. 4,95,000/- towards settlement of alleged loan of Rs. 2,45,000/-.

4. Further, it is also noted by the M.M. that the complainant (petitioner), in his cross examination, has stated that he had no communication with the respondent/accused Suresh Talwar since 1991. If this was so, it does not appeal to the reason as to how, he could have lent Rs. 2,45,000/- after 1991 to the respondents. Still further, it was the complainant's own case that a cheque was issued by Sarita Talwar, wife of Suresh Talwar in the year 1998 on behalf of the accused Suresh Talwar. The cheque in question having not been issued by the respondent Suresh Talwar, and Sarita Talwar having not been made as an accused in her personal capacity, the case against the respondent accused Suresh Talwar did not appear to be maintainable. In view of the complainant's own case, the defence of Suresh Talwar that he had not issued the cheque in question to the complainant (petitioner), seems to be probable. In the case of M/s. Pine Product Industries & Anr., Vs. M/s. R.P.Gupta & Sons & Anr., AIR 2007 (NOC) 1987 (Del.), it was held that:

".....complaint itself vague about the nature of liability in discharge of

which the cheques were issued--no details as to how the amount in question was arrived at--Order of conviction is set aside...."

5. Still Further, it is also noted that it was also the defence of the respondents that the account of which the cheque is purported to have been issued, had already been closed prior to 6.8.1993. There was evidence on record to show that the account in question had already been closed on the said date and the remaining cheques of the cheque book were surrendered to the bank on the same date.

6. In view of my above observations, I do not see any illegality or infirmity in the impugned order. The leave petition has no merit and is hereby dismissed.

M.L.MEHTA, J MAY 22, 2012 akb