Back
2015 Supreme(Del) 3011
IN THE HIGH COURT OF DELHI
ASHUTOSH KUMAR, J.
Mohd. Aslam – Petitioner
Versus
Ramesh Thakur – Respondent
CRL.L.P. 103/2015 & Crl. M.A.3565/2015
Decided On : 18.12.2015
Advocate Appeared:
For the Petitioners: Mr. R.K. Saini, Adv.
For the Respondents: Mr. Sudhansu Palo & Mr. Surendra Kr. Roy, Advs.
The importance of proving a legally enforceable debt and the burden of proof under the Negotiable Instrument Act.
Headnote:
NI Act - Loan Dispute - Section 138, 139, 118 - The court discussed the provisions of Section 138, 139, and 118 of the Negotiable Instrument Act. It highlighted the legal presumptions and burden of proof under these sections and how they influenced the court's decision.
Fact of the Case:
The petitioner advanced a loan to the respondent, who issued post-dated cheques. The cheques were dishonored, leading to a legal dispute.
Finding of the Court:
The court found that the petitioner failed to prove the loan and the respondent successfully rebutted the presumption of a legally enforceable debt.
Issues: Dispute over loan amount, dishonored cheques, and legal liability under the Negotiable Instrument Act.
Ratio Decidendi: The court emphasized the importance of proving a legally enforceable debt and discussed the burden of proof under Sections 138, 139, and 118 of the NI Act.
Final Decision: The court declined the leave to appeal and dismissed the petition, upholding the respondent's acquittal.
ASHUTOSH KUMAR, J.
1. The present leave to appeal is directed against the judgment and order dated 14.10.2015 passed by the learned Metropolitan Magistrate (NI Act) South-East District, Saket Courts Complex, New Delhi, in CC No.1278/L whereby the respondent has been acquitted of the charges of Section 138 of the Negotiable Instrument Act (hereinafter referred as NI Act) and the complaint of the leave petitioner has been dismissed.
2. The petitioner is said to have advanced a loan of Rs.2 lacs to the respondent on 03.12.2007 as the respondent had approached him for such loan in order to defray the expenses which were incurred while addressing personal needs. Four post-dated cheques of Rs.50,000/- each was allegedly given by the respondent. On presentation of one of the cheques namely cheque no.118492, the same was dishonoured with the remark that the 'account has already been closed'. The return memo is dated 12.11.2009. The petitioner thereafter submitted other cheques bearing no.118493; 118494; and 118495, all dated 07.12.1989. Theses cheques were also returned dishonoured with the remark “Account closed”. The return memos of the aforesaid three cheques are dated 09.12.2009 dated 11.12.2009.
3. A legal notice was sent to the respondent.
4. A grievance has been raised that notice was not served upon the respondent.
5. However, when the respondent appeared, he was made to understand the charge against him, to which he pleaded not guilty and claimed trial.
6. The petitioner offered his evidence by way of affidavit (Ex.CW1/1) and his oral testimony before the Court. The respondent got himself examined as DW-1 and also offered another witness on his behalf namely Vimal Kumar Shukla (DW.2).
7. During his cross-examination, the petitioner stated before the Trial Court that he knew the respondent for the last 8-10 years and had been visiting his house for a long time. He gave a loan of Rs.2 lacs to the respondent in the month of December, 2007. The money was demanded by the respondent for treatment of kidney of his wife. The petitioner, however, has categorically stated that such facts namely requirement of money for treatment of kidney of the wife of the respondent was not stated by him either in his complaint or in the evidence by way of an affidavit. He has submitted before the Trial Court that he also did not state the time period of loan in his complaint petition but the loan was given for a period of two months and no interest was payable as it was a friendly loan. It was further stated by the petitioner that the respondent was not in the trade of selling meat but ran a dry cleaning shop. No proof was available with the petitioner for having given loan to the respondent.
8. The petitioner/complainant has tried to explain the source of money by saying that Rs.55,000/- was available with him in cash and the remaining amount was borrowed from his wife and mother, both of whom are home-makers. It has also been stated that despite his being an income tax payee and having filed his income tax return for the year 2007-08, such loan of Rs.2 lacs has not been shown in his return.
9. The cheque in question was issued by the respondent in the name of the firm namely M/s New Modern Meat Shop. The petitioner claims to be the proprietor of the aforesaid firm. However, neither in the complaint nor in the aforesaid petition, has it been stated that he is the proprietor of M/s New Modern Meat Shop. Such a statement came only by way of an additional affidavit.
10. The respondent, on the other hand, admits of having taken loan from the petitioner but only of Rs.1 lac and not Rs.2 lacs as claimed in the complaint petition. The aforesaid loan was taken on 10% interest per month. The loan was given to the respondent, according to him, for a period of 3 months. The respondent was made to give four cheques as security for the said loan. The respondent has clearly stated before the Trial Court that he has paid all the amount i.e. Rs.1 lac alon
