Delhi High Court
Gopal Goel vs Sapna on 3 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 3rd October, 2018
+ CRL.L.P. 410/2016
GOPAL GOEL ..... Petitioner
Represented by: Mr. Pranav Sapra, Advocate.
versus
SAPNA ..... Respondent
Represented by: Father of respondent in person.
Mr. Ashok K. Kumar, APP for the
State with ACP Akanksha Yadav,
Inspector Arun Dev Nehra, SHO
Paschim Vihar and SI Imran Khan.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No.12087/2016 (Delay)
For the reasons stated in the application delay of 36 days in filing the
leave to appeal petition is condoned.
Application is disposed of.
CRL.L.P. 410/2016
1. Aggrieved by the judgment dated 23rd March 2016, whereby the
learned Metropolitan Magistrate acquitted the respondent for the offence
punishable under Section 138 Negotiable Instruments Act, 1881 in CC No.
316/1/2016 titled as "Gopal Goel v. Sapna", the petitioner/complainant has
preferred the present leave petition.
2. Briefly stated, the facts of the case as per the complaint are that the
petitioner was on friendly terms with the respondent and her family.
Petitioner advanced ₹50,000/- as a friendly loan on interest at the rate of
24% per annum on 1st November, 2002 to the respondent for a period of six
months. When the petitioner approached the respondent for repayment, she
gave a cheque bearing number 184340 dated 17th May, 2003 for a sum of
₹50,000/- drawn on Oriental Bank of Commerce, Delhi against the aforesaid
loan amount. When the cheque was presented for encashment on 22 nd May,
2003, it was returned dishonoured with remarks 'funds insufficient' vide
return memo dated 26th May, 2003. Petitioner intimated the respondent
about the dishonour of cheque and requested her to make the payment,
however, she failed to make the payment despite repeated requests and
demands. Petitioner sent a legal demand notice dated 3 rd June, 2003 through
registered AD and UPC but the respondent failed to make the payment
within the stipulated time. Hence, the complaint.
3. Notice under Section 251 Cr.P.C. was framed against the respondent
vide order dated 16th November 2010 to which she pleaded not guilty and
claimed trial.
4. Petitioner examined himself as CW-1 and filed his evidence by way
of an affidavit and relied upon original cheque vide Ex.CW-1/1, returning
memo vide Ex.CW-1/2, legal demand notice vide Ex.CW-1/3, registered AD
receipt and UPC receipt vide Ex.CW-1/4 and Ex.CW-1/5 respectively.
5. Statement of respondent was recorded under Section 313 Cr.P.C.
Respondent examined her brother Kamal Arora as DW-1 and herself as
DW-2.
6. Kamal Arora (DW-1) stated that he had taken the loan of ₹20,000/-
from the petitioner and had handed over a blank signed cheque of his sister
i.e. the respondent herein. He further stated that he had paid most of the loan
amount to the petitioner in installments. During his cross-examination, he
denied the suggestion that the respondent had taken the loan from the
petitioner and in lieu of that she had given the aforesaid cheque.
7. Respondent (DW-2) deposed that the cheque in question was given by
her to her brother. The cheque was only signed by her and the particulars
were not filled by her. Her brother took the cheque from her on the pretext
of using it in a bank. She asked her brother to return the cheque but he failed
to return the cheque. She denied the receipt of legal notice. After receiving
the summons from the Court, she contacted her brother who told her that he
took ₹20,000/- from the petitioner and he had already returned ₹18,500/- to
the petitioner. During her cross-examination, she categorically stated that
she did not know the petitioner.
8. Petitioner in his cross-examination stated that he knew the respondent
since 2002. Respondent was not in direct contact with him, her brother was
known to him and he introduced her for loan. He also stated that before
giving the loan, he did not know the respondent.
9. From the testimony of the petitioner, it is apparent that the petitioner
granted the alleged loan to the respondent without even knowing her and
only on knowing her through her brother. In fact, petitioner admitted that he
did not even know the brother of the respondent directly. Version of the
petitioner of advancing loan to the respondent without knowing her or her
brother properly does not only seem unbelievable but also highly
improbable. Further, from the deposition of the petitioner, it is evident that
he did not remember the place where loan was advanced.
10. Petitioner also admitted in his cross-examination that the cheque
details were filled by him although, later on, he stated that it was filled in the
presence of the respondent. Thus, it is not denied that the petitioner filled up
the details in the cheque.
11. Lastly, loan was advanced to the respondent by the petitioner without
ascertaining what work respondent does and her repayment capacity.
Admittedly, no security for the loan was also taken.
12. In view of the facts noted above findings of the learned Metropolitan
Magistrate cannot be held to be perverse warranting interference of this
Court.
13. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
OCTOBER 3, 2018
'vn'
