Kajal vs Vikas Marwah
2014 Latest Caselaw 1636 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                Date of Decision: 27.03.2014
+       CRL.A. 870/2013
        KAJAL
                                                                                ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus
        MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.

+       CRL.A. 1520/2013
        KAJAL
                                                                                ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus
        VIKAS MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.
+       CRL.A. 1521/2013
        KAJAL
                                                                                ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus
        VIKAS MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.
+       CRL.A. 1522/2013
        KAJAL
                                                                                ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus
        VIKAS MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.
+       CRL.A. 1524/2013
        KAJAL

Crl. A. No.870, 1520 to 1524 of 2013 and Crl.L.P. No. 348 of 2013              Page 1 of 11
                                                                                ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus

        VIKAS MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.

+       CRL.L.P. 348/2013
        KAJAL                                                          ..... Petitioner
                                  Through: Mr. M.S. Vinaik, Adv.

                                  versus

        VIKAS MARWAH                               ..... Respondent
                    Through: Mr. M.S. Vinaik, Adv.

+       CRL.A. 1523/2013
        KAJAL
                                                                               ..... Appellant
                                  Through:          Mr. M.S. Vinaik, Adv.
                                  versus

        VIKAS MARWAH
                                                                              ..... Respondent
                                  Through:          Mr. Vineet Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN


                                              JUDGEMENT

V.K. JAIN, J. (Oral)

The case of the appellant/complainant in nutshell is that the

respondent/accused took several loans from her from time to time, the total

amount of the loan given to him being Rs 10,40,000/-. This is also the case

of the complainant/appellant that the respondent/accused issued several

cheques drawn on Canera Bank, Raja Garden, New Delhi towards payment

of the aforesaid loan amount. The cheques, when presented to the bank,

were dishonoured for want of payment. After serving statutory notice upon

the respondent/accused, the appellant/complainant filed as many as nine

complaints against the respondent/accused under Section 138 of Negotiable

Instruments Act.

2. The Trial Court, having held that the respondent had issued the

cheques in question in discharge of a debt or a liability and finding that the

cheques were dishonoured when presented to the bank and the

respondent/accused did not make payment of the cheque amount, despite

receipt of legal notice, convicted him under Section 138 of Negotiable

Instruments Act.

3. Being aggrieved from his conviction, the respondent/accused

preferred appeals before the learned Additional Sessions Judge, who vide

impugned order dated 27.04.2013 held that the existence of a legally

enforceable debt or liability was doubtful and accordingly set aside the order

passed by the Trial Court and acquitted the accused/respondent. Being

aggrieved from the aforesaid order, the complainant is before this Court by

way of the aforesaid appeals.

4. During her cross-examination, the complainant, inter alia, stated that

she had borrowed money from her sisters, namely, Anita and Rekha and had

also taken a sum of Rs 2.80 lakhs from Md. Zakir. She also admitted that

she was maintaining accounts with Indian Overseas Bank, Rajouri Garden

and Canera Bank, Raja Garden. Though she claimed to be an income-tax

assessee, no income-tax return was produced by her. In his deposition, the

respondent/accused Vikas Marwah admitted having signed the cheques in

question and giving them to the complainant/appellant. He, however,

claimed that the cheques were blank and were not filled up by him on the

date they were handed over to the complainant. He also admitted that the

aforesaid cheques were dishonoured for want of sufficient funds.

5. Thus, in a nutshell, the case of the complainant/appellant is that she

had advanced a loan of Rs 10,40,000/- which the respondent did not return

to her, whereas the case of the respondent is that he has taken a loan of Rs.

3,00,000/- from her and he returned a total sum of Rs 3.5 lakhs, inclusive of

interest.

6. Neither in the complaints nor in her depositions did the complainant

gave details of the loan which she claims to have given, such as the exact

amount of each loan, the date on which it was paid and the rate of interest

agreed to be paid to her. There is no valid explanation for not giving all

such details.

7. Admittedly, the respondent before this Court is not the only person to

whom loan is alleged to have been given by the complainant. Admittedly,

the complainant had filed complaints under Section 138 of Negotiable

Instruments Act against Smt. Gomti Dutta and Keshvi Dutta. She claims to

have given loans to them. It would be difficult, in the facts and

circumstances of the case, to believe that she kept on giving loan to several

persons, despite not having enough fund with her, for this purpose.

8. In her cross-examination dated 04.04.2007 recorded in CC

No.732/2009, the complainant/appellant inter alia stated that the sum of

Rs.5,80,000/- which she paid to the respondent/accused at one go was

arranged by her from one Mr Jacky and her sisters Smt. Anita and Rekha

Saini. She claimed to have taken Rs 1.5 lakh each from her sisters and

Rs2.80 lakh from Mr Jacky. She admitted that both her sisters are

housewives. She claimed that her sisters arranged the money by taking loan

from one Saini Society out of their personal savings. The

complainant/appellant did not produce either of her sisters or Mr Jackey, to

prove the loan alleged to have been taken by her from them. Therefore, her

deposition in this regard remained unsubstantiated. Even otherwise, it would

be difficult to accept that the complainant would have raised loan from

several persons, not for her personal needs, but for advancing loan to the

respondent from time to time. In the normal course of human conduct, no

one is likely to take obligation of others just to give loan to another person,

unless he/she obtains a substantial advantage, by undertaking exercise of this

nature. He/she would know that even if the person whom he/she lends

money does not return the loan amount, she would have to return the loan, to

the persons from whom it is taken. Therefore, he/she won't take such a risk,

except for strong reasons.

9. According to complainant, even her sisters had raised loan from a

society for advancing money to her. It would be difficult to believe that the

sisters of the complainant would have incurred liability towards a society, to

extend a loan to the complainant, not for her personal need, but for lending

that amount to a person who is stranger to them. Moreover, there is no

explanation for not producing the aforesaid persons in the witness box.

10. In view of the facts & circumstances as discussed earlier, it would be

difficult to accept the case of the complainant/appellant that she had

advanced a loan of Rs.10.40 lakh to the respondent. However, it is

respondent's own case that he had taken a loan of Rs.3.00 lakh from the

complainant/appellant. According to the respondent he had returned the

aforesaid amount to the appellant/complainant. The alleged repayment is

sought to be proved relying upon a diary, a copy of which is Ex.CW1/DX.

The said diary is in the hand of the father of the respondent. Though the

case of the respondent is that the aforesaid diary bears the signature of the

appellant/complainant Kajal, there is no evidence to prove the alleged

signature of the complainant/appellant on the aforesaid document. In her

cross-examination, the complainant/appellant has nowhere admitted that the

aforesaid diary bears her signature. She only admitted that it was a diary

which belongs to the father of the respondent who was engaged in the

business of building material and property dealing. No handwriting expert

was examined by the respondent to prove the alleged signatures of the

complainant/appellant on the aforesaid document. Since, the respondent has

failed to prove that the aforesaid document bears signature of the

complainant/appellant, any reliance on it for the purpose of proving the

alleged repayment would be wholly misplaced.

11. Had the respondent repaid the loan amount of Rs.3.00 lakh as claimed

by him he would have either taken a receipt clearly acknowledging the

receipt of the payments made by him from time to time or he would have

taken back the cheques which he had issued to the complainant/appellant.

The learned counsel for the respondent submits that since the parties had

cordial relations with each other and the respondent is residing in the same

house in which the complainant is residing he did not insist on taking the

cheques back from her. I, however, find myself unable to accept the

submission. The appellant/complainant did not extend loan to the

respondent without taking cheques from him. Therefore, the respondent

while returning the said loan would certainly have insisted on taking back

the cheques which he had issued to the complainant/appellant.

In these circumstances, I am of the considered view that though the

appellant/complainant has failed to prove that she had advanced loan to the

extent of Rs.10.40 lakh, the evidence which has come on record clearly

shows that she had advanced a loan of at least Rs.3.00 lakh to the respondent

which he is yet to repay. Therefore, it cannot be said that the cheques which

the respondent had issued to the complainant/appellant were wholly without

any consideration.

12. It is next contended by the learned counsel for the respondent that the

appellant/complainant is a money lender since she had advanced loan not

only to the respondent but also to other persons, namely, Smt. Gomti Dutta

and Ms. Keshvi Dutta. He has also pointed out that admittedly as many as

24 complaints under Section 138 of the Negotiable Instruments Act were

filed by the appellant/complainant, besides a suit under Order 37 of the Code

of Civil Procedure. In my view, even if the appellant/complainant was

engaged in lending money, that would not debar her from filing a complaint

under Section 138 of the Negotiable Instruments Act, if a cheque issued to

her towards repayment of the loan advanced by her is dishonoured by the

bank for want of funds and the drawer of the cheques fails to make payment

within the prescribed time, after receipt of legal notice from the lender.

Section 3 of the Punjab Registration of Money Lenders' Act, 1938, which

applies to Delhi, to the extent it is relevant provides that notwithstanding

anything contained in any other enactment for the time being in force, a suit

by a money lender for the recovery of a loan shall, after the commencement

of the Act, be dismissed unless the money lender at the time of institution of

the suit is registered and holds a valid license or holds a certificate from the

Commissioner granted under Section 11 of the Act, specifying the loan in

respect of which the suit is instituted or if he is not already a registered or

licensed money lender, he satisfies the court that he has applied for such

registration or license but the application is pending. The aforesaid

provision does not debar a money lender from instituting a complaint under

Section 138 of the Negotiable Instruments Act, 1881, which is a remedy

enforceable before a criminal court, and totally independent of a civil suit.

The criminal liability is incurred only in case a cheque is issued in discharge

of a debt or other liability, the said cheque is dishonoured for want of funds

and the borrower fails to make payment of the amount of the cheque even

after receipt of a notice from the lender.

13. For the reasons stated hereinabove, the impugned order dated

27.4.2013, passed by the learned Additional Sessions Judge cannot be

sustained.

14. In the facts & circumstances of the case, the respondent is convicted

under Section 138 of the Negotiable Instruments Act, 1881, in all the

complaints which are subject matter of these appeals. The learned counsel

for the respondent states, on instructions from the father of the respondent

who is present in the Court that if, the respondent is sentenced only to pay a

fine of Rs.3.00 lakh, in aggregate in all the complaints which are subject

matter of these appeals, the respondent undertakes to pay the said amount by

way of three monthly instalments of Rs.1.00 lakh each. Considering the

undertaking given by the respondent through his counsel, I am inclined to

take a lenient view, as far as the sentence is concerned. The respondent is,

therefore, sentenced to pay fine of Rs.3.00 lakh or to undergo RI for two (2)

years in default. The aforesaid sentence is cumulative for all the complaints

subject matter of these appeals. The aforesaid amount shall be paid to the

complainant/appellant in three (3) monthly instalments of Rs.1.00 lakh each,

falling due on 15.4.2014, 15.5.2014 & 15.6.2014.

The appeals stand disposed of accordingly.

The LCR be sent back along with a copy of this order.

V.K. JAIN, J MARCH 27, 2014 BG/b'nesh