Delhi High Court
Harish Chand Chauhan vs Ganga Saran on 18 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 18th September, 2018
+ CRL.L.P. 644/2017
HARISH CHAND CHAUHAN ..... Appellant
Represented by: Mr. Islam Khan, Advocate
versus
GANGA SARAN .....Respondent
Represented by: None
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No.18350/2017 (Delay in Re-filing) and Crl.M.A.
No.18348/2017 (Delay)
For the reasons stated in the applications delay of 31 days and 26 days
in re-filing and filing the leave to appeal petition is condoned.
Applications are disposed of.
CRL.L.P. 644/2018
1. Aggrieved by the judgment dated 26th May, 2017 whereby the learned
Metropolitan Magistrate acquitted the respondent for the offence punishable
under Section 138 Negotiable Instruments Act, 1881, the
petitioner/complainant has preferred the present leave petition.
2. Facts leading to the present petition are that the petitioner and the
respondent were residents of the same locality. Petitioner had introduced
the respondent to a committee being run by one Mr.Bhim Singh of which he
was a member. Respondent paid the subscription of the committee twice
after which he took the committee money. Thereafter respondent showed
his inability to pay the committee money due to financial problems as a
result of which the petitioner had to pay the committee money on behalf of
the respondent as he had introduced him to the committee. In February
2014, the respondent requested the petitioner to advance a loan of
₹1,00,000/- as he needed the same urgently. He assured the petitioner that
he would pay an interest of 3.5% per month on the loan amount and also
gave him original property papers as security. Respondent refused to pay
the money after repeated requests from the petitioner. With the intervention
of a friend, mediation took place and it was settled between the parties that
an amount of ₹2,63,271/- including the committee money, the loan amount
and the interest on the loan was due as on 11th November 2014. On 28th July
2016, the respondent handed over a cheque of ₹2,20,000/- bearing number
000002 dated 28th July 2016 drawn on Bank of India, Dewali Branch,
Duggal Colony, New Delhi and took back his original property documents.
Petitioner presented the abovementioned cheque for encashment, however,
the same was returned unpaid with the remarks "Funds Insufficient" vide
memo dated 18th August 2016. Petitioner issued a legal notice dated 27th
August 2016 upon the respondent to make the payment of the cheque
amount within 15 days of receipt of notice. Even on service of the said
notice, the respondent did not make payment to discharge his liability.
Hence, the complaint.
3. During the pre-summoning evidence, the petitioner filed an affidavit
by way of evidence and relied on copy of property papers, copy of
settlement deed dated 11th November 2014, original cheque, return memo,
copy of legal notice and postal receipts vide Ex.CW-1/1 to Ex.CW-1/7. On
4th October 2016, summoning order under Section 204 Cr.P.C. was issued
against the respondent.
4. On 24th December 2016, notice under Section 251 Cr.P.C. was served
upon the respondent to which he pleaded not guilty and claimed trial. He
stated that the blank cheque was given to the petitioner as security for the
committee only and he had no legal liability to pay the cheque amount to the
petitioner.
5. Respondent was examined under Section 313 Cr.P.C. wherein he
reiterated his statement given under Section 251 Cr.P.C. In his defense, the
respondent stated that he had not received the legal notice dated 27th August
2016 and the cheque in question was not issued to the petitioner towards any
legal liability.
6. Learned Metropolitan Magistrate acquitted the respondent on the
basis that no written agreement or receipt was executed regarding the loan of
₹1,00,000/-. During the cross-examination, petitioner stated that the
committee that started in the year 2012-2013 consisting of 16 members was
being run by Bhim Singh for about 1 year and 4 months. There were two
committees for ₹1,00,000/- each and the respondent had picked up two
committees wherein the first one was at the first number/first round and the
second was at third number/third round. He stated that he had taken the
amount of committee from Bhim Singh on behalf of the respondent.
7. Thus it is clear from the statement of the petitioner that he had taken
the committee money from Bhim Singh on behalf of the respondent and the
onus shifts upon the petitioner to prove that he had given the amount to the
respondent. The petitioner has also not examined any witness in whose
presence the settlement agreement was executed. Furthermore, as per the
settlement, the amount due as on 11th November 2014 was ₹2,63,671/- while
the cheque in question dated 28th July 2016 was for ₹2,20,000/- only. It is
highly improbable that a person to whom an amount of ₹2,63,671/- was due
in 2014 would accept a cheque of the amount ₹2,20,000/- in 2016.
Petitioner had nowhere made a demand for the remaining amount or even
placed any evidence on record to show that the cheque was issued towards
discharge of part liability or that he had handed over the committee amount
to the respondent or that he had paid the subscription amount of committee
on behalf of the respondent. Further it is improbable that the petitioner
would give out a further loan of ₹1,00,000/- to the respondent who had not
even repaid the earlier amount to him.
8. As per the testimony of the petitioner, a settlement agreement had
been executed between the petitioner and the respondent however the same
was not exhibited during trial. Further as per the evidence on record the
committee had already been closed.
9. Findings of the learned Metropolitan Magistrate are based on the
evidence on record. 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
SEPTEMBER 18, 2018
'rk'
