Delhi High Court
Rattan Lal vs Ram Kishan Sharma @ R.K. Sharma on 16 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 16th July, 2018
+ CRL.L.P. 442/2018
RATTAN LAL ..... Petitioner
Represented by: Mr. Akhil Sharma and Ms. Isha
Aggarwal, Advocates.
versus
RAM KISHAN SHARMA @ R.K. SHARMA ..... Respondent
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No. 12572/2018 (Exemption)
Allowed, subject to all just exceptions.
CRL.L.P. 442/2018
1. Aggrieved by the judgment dated 12th April, 2018 whereby the learned
Metropolitan Magistrate acquitted the respondent for offence punishable under
Section 138 Negotiable Instruments Act, 1881, (in short NI Act) the
petitioner/complainant has preferred the present leave petition.
2. Facts leading to the present petition are that the petitioner and the
respondent had friendly relation with each other. It is the case of the petitioner
that the respondent approached him for a loan of ₹16,00,000/- in April, 2014.
The petitioner obtained the entire funds from his brother and advanced the
same to the respondent for a period of two years and in lieu of the loan,
respondent gave two post dated cheques dated 6th April, 2016 and 7th April,
2016 both drawn on State Bank of India, Central Secretariat, New Delhi. After
the expiry of two years, when the petitioner presented both the two cheques for
encashment, they were returned vide bank return memos dated 12th April, 2016
with remarks "funds insufficient". Thereafter, the petitioner served a legal
notice dated 2nd May, 2016 upon the respondent to which he replied by denying
any liability towards the petitioner. In the reply, the respondent also alleged
misuse of cheques by the petitioner and that the two blank signed cheques were
given by him to the petitioner in the year 2013 to find out the exact amount
payable by the respondent to two co-operative societies and the cheques to be
deposited in the office of societies after filling the same. Consequently, the
petitioner preferred the present complaint case.
3. Petitioner examined himself as CW-1 and led his evidence by way of an
affidavit Ex. CW-1/A. He proved the two cheques, one bearing no. 568023
dated 6th April, 2016 for a sum of ₹9,00,000/- and other bearing no. 568024
dated 7th April, 2016 for sum of a ₹7,00,000/-, both drawn on SBI, Central
Secretariat, New Delhi as Ex.CW-1/A and Ex.CW-1/B respectively, cheque
returning memos dated 12th April, 2016 as Ex.CW-1/C and Ex.CW-1/D
respectively, legal demand notice dated 2nd May, 2016 as Ex.CW-1/E, postal
receipts of speed posts and registered posts as Ex.CW-1/F (Colly), tracking
report of delivery of registered post and speed post as Mark-A (colly), reply
dated 23rd May, 2016 to legal demand notice alongwith envelope as Ex.CW-
1/G. Petitioner also examined his brother Ram Singh as CW-2.
4. Respondent in his statement recorded under Section 313 Cr.P.C. stated
that he had never requested the petitioner for any loan and the cheques in
question were given by him to the petitioner for the purpose of payment of
installment of co-operative societies loan. Respondent examined himself as
DW-1.
5. It is the case of the petitioner that he had advanced a loan of
₹16,00,000/- to the respondent, however, the source of funds was disclosed for
the first time in his cross-examination and there is no mention of the same
either in his complaint or examination-in-chief. During his cross
examination he stated that he procured the entire amount from his brother.
He admitted no document or loan agreement was executed at the time of
grant of loan. Petitioner in his cross examination stated that the respondent
required the loan to pay of his other creditors.
6. With respect to the source of funds, Ram Singh (CW-2) deposed that
he had given ₹16,00,000/- in cash to the petitioner who immediately handed
it over to the respondent. Ram Singh (CW-2) further deposed that he had
sold a house that is D-22, Sewak Park, Uttam Nagar, Delhi and advanced
funds to the petitioner out of the sale proceeds, however, no document
regarding the said property was placed on record. Moreover, Ram Singh
(CW-2) in his cross-examination stated that he did not get any document
from the purchaser regarding the sale of immovable property, which in itself
casts serious doubt on the testimony of Ram Singh CW-2.
7. The line of defence of the respondent has been consistent with his
reply to legal demand notice, in application under Section 145(2) of NI Act
as well as defence evidence. Respondent also stated that the petitioner had
told him that the cheques had been misplaced but he came to know that they
have been dishonored on receipt of legal demand notice. Furthermore, he
had not taken any money in the presence of Ram Singh (CW-2).
8. Learned Metropolitan Magistrate observed that in view of the above
findings and that the brother of the petitioner being an interested witness, his
testimony regarding witnessing the loan transaction was not credible and
that the respondent was able to rebut the presumption. Version of the
petitioner casts serious doubt on the case of the petitioner as no prudent
person would advance a loan of substantial amount without executing any
document and also when he knows that the person is indebted to other
creditors. Furthermore, it is highly improbable that if a loan is granted for
two years, there is no conversation during the period of those two years
regarding repayment of loan.
9. The view expressed by the learned Metropolitan Magistrate is a
plausible view on the facts of the case. Hence, the impugned judgment
acquitting the respondent cannot be said to be perverse warranting
interference of this Court.
10. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
JULY 16, 2018
'yo'
