Delhi High Court

Raj Kishore Pandey vs Ruchika Vij on 14 September, 2015

#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

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.

The petitioner further deposed that he had not withdrawn the said amount of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

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

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

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

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.