Arvind Kumar Minhas vs Neeraj Kumar
2017 Latest Caselaw 1804 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            DECIDED ON : 12th APRIL, 2017

+                              CRL.A. 1650/2013
        ARVIND KUMAR MINHAS                                    ..... Appellant
                               Through :    Mr.Mukesh Kr.Dral, Advocate with
                                            Ms.Poonam S.Raswant & Mr.Khalid
                                            Rana, Advocates.
                               versus
        NEERAJ KUMAR                                           ..... Respondent
                               Through :    None.

         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. The instant appeal has been preferred by the appellant - Arvind Kumar Minhas to impugn a judgment dated 29.06.2013 of learned Metropolitan Magistrate in Complaint Case No.456/2010 by which the respondent - Neeraj Kumar was acquitted of the charge under Section 138 Negotiable Instruments Act. The Respondent put appearance on some dates pursuant to the notice issued. Subsequently, he opted not to appear and contest.

2. Briefly stated, facts of the case were that a complaint case under Section 138 Negotiable Instruments Act was filed by the appellant against the respondent. It was averred that in February, 2009 the respondent had approached him for a friendly loan of `5 lacs for short duration.

Accordingly, the complainant gave him a sum of `5 lacs through various cheques with the assurance that it would be returned within time. In October, 2009, the respondent was requested to repay the loan amount. He sought 2 - 3 months time to make the payment. `50,000/- were paid thereafter on various occasions. It is further averred that the respondent had issued a cheque for a sum of `4.5 lacs on 07.09.2010. However, on presentation the cheque was returned dishonoured by the bankers with the remarks "Funds insufficient". Legal notice was served upon the respondent on 16.11.2010; there was no response to it.

3. In his pre-summoning evidence, the appellant filed evidence by way of affidavit. By an order dated 13.01.2011 cognizance was taken and the respondent was summoned to face trial for commission of offence under Section 138 Negotiable Instruments Act. In response to notice under Section 251 Cr.P.C., the respondent denied his liability to make the payment. The appellant examined himself as CW-1. In 313/281 Cr.P.C. statement, the respondent denied his liability and examined himself as DW-1 in defence. The trial resulted in respondent's acquittal as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred by the appellant.

4. In response to the notice given under Section 251 Cr.P.C., the respondent had admitted issuance of cheque in the sum of `4.5 lacs drawn on State Bank of India, Tis Hazari Courts, Delhi, in favour of the appellant. He further admitted that the said cheque on presentation was dishonoured. He admitted the receipt of legal demand notice. He claimed that as per his detail or estimate, he was to pay `60,000/- - `70,000/- to the complainant and it would be paid in due course. The respondent, however, did not

elaborate as to how as per his own calculation, `60,000/- - `70,000/- were due.

5. While appearing as CW-1, the appellant reiterated his version averred in the complaint by way of affidavit (Ex.CW-1/A); documents (Ex.CW-1/1 to Ex.CW-1/6) were duly proved. In the cross-examination, the appellant informed that `5 lacs were given by him to the respondent on various occasions through various cheques. He had also given `3.6 lacs as a loan to the respondent through cash which was subsequently returned. He admitted receipt of `50,000/- out of `5 lacs on different occasions. Material facts stated by the appellant remained unchallenged in the cross- examination. The respondent did not deny the issuance of cheque. He also did not put any specific question if after the issuance of the demand notice, he had made payment of the cheque amount to the appellant, and if so, on what date(s) and by what mode.

6. In 313 Cr.P.C. statement, the respondent came up with a new plea claiming that he had already made the payment to the complainant towards the satisfaction of friendly loan that he had taken. He further claimed that the cheque in question was issued as a 'security' and despite the entire payment made, the appellant did not return it. Again, the respondent did not give specific dates when the loan was discharged.

7. In his defence evidence as DW-1, he admitted receipt of friendly loan of `5 lacs from the appellant. He, however, claimed that out of the said amount, he had returned `3.6 lacs through RTGS from his father's account. `15,000/-, `25,000/- and `50,000/- were paid by him through cheques. In the cross-examination, he admitted that on 15.11.2009 he had given in writing (Ex.DW-1/P1) to the complainant "I have taken loan of `4.5

lacs from the complainant and the same will be returned by 20.11.2009 positively". He also admitted the issuance of cheque (Ex.CW-1/1) duly signed by him. He alleged that the cheque in question was issued under pressure.

8. On scrutinising the evidence, it reveals that the respondent did not produce any credible evidence on record if `4.5 lacs were ever paid by him to the appellant. The respondent has taken divergent and conflicting stands at different stages of trial. It is pertinent to mention that in Civil Suit No.262/2013 filed by the appellant against the respondent for recovery of `4.5 lacs along with interest and costs under Order XXXVII CPC, leave to defend was declined and the suit was decreed in the sum of `4.5 lacs with costs and pendent-lite interest @ 18% per annum from 07.09.2010 till its realization by a judgment dated 18.03.2015. The respondent did not come forward to inform if the said judgment has been assailed in appeal. Learned counsel for the appellant on specific query informed that execution petition has been filed and certain payments have been made by the respondent therein.

9. In the Civil Suit while moving the application for leave to contest, the respondent had admitted the case of the appellant to the extent that in the year 2009, he had received a total sum of `8.6 lacs; he had returned a sum of `3.6 lacs during the continuation of the earlier loan of `5 lacs and legal notice dated 16.11.2010 demanding `5 lcas was received by him. He also admitted that `50,000/- were paid by him to the appellant on various occasions and for that reason cheque in the sum of `4.5 lacs was issued for the balance amount. The Civil Court further noted that document (Ex.DW-1/P1) dated 15.11.2009 was admitted by the respondent to have

been executed. Since this document was executed on 15.11.2009 there was no question of adjustment of `3.6 lacs towards it. The said payment was made through RTGS in October, 2009 one month prior to the execution of the document (Ex.DW-1/P1).

10. The Trial Court in the impugned judgment noted that both the complainant and the accused were known to each other being colleagues. It, however, fell into grave error to observe that the respondent was able to rebut the presumption and the burden was heavily upon the appellant to prove its case beyond reasonable doubt. There was no dispute raised by the appellant regarding the payments of `3.6 lacs and other payments amounting to `50,000/-. It was explained by the appellant that `3.6 lacs paid prior to the execution of the document (Ex.DW-1/P1) were towards another transaction and `50,000/- were out of the loan amount `5 lacs. The Trial Court failed to record any finding if there was any payment by the respondent after the issuance of the admitted cheque (Ex.CW-1/1) to the appellant. The respondent did not explain as to under what situation and circumstances the cheque on presentation was dishonoured.

11. For the forgoing reasons, respondent's acquittal under Section 138 Negotiable Instruments Act is unsustainable and set aside. The appeal is allowed and the respondent is convicted under Section 138 Negotiable Instruments Act.

12. Section 138 provides that a person guilty for the offence be punished with imprisonment with term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. In the instant case as observed above, in civil proceedings, the respondent has made certain payments.

13. Having regard to the facts and circumstances of the case, the respondent is sentenced to undergo SI for one month. The respondent shall surrender before the Trial Court to serve the sentence on 24.04.2017 failing which, coercive process shall be issued against him.

14. Trial Court record be sent back forthwith with the copy of the order.

(S.P.GARG) JUDGE APRIL 12, 2017 / tr