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TMI Blog2017 (9) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... is alleged to have issued five cheques drawn on HDFC Bank, Chattarpur, New Delhi in favour of the respondent as security to a loan agreement which is said to have been executed on 17.01.2012 for having received Rs. 50 lakhs from the respondent. The aforesaid cheques, on presentation by the respondent in the bank, were dishonoured because of the "instructions of stop payment". Hence the complaint. 3. It has been alleged in the complaint that the petitioner is a property dealer who was known to the respondent/complainant. On his asking, the respondent is said to have given a loan of Rs. 50 lakhs on deposit of the title documents of land bearing No.56, Asola Village, Fatehpur Beri by the petitioner. It has been averred in the complaint that the respondent/complainant disposed of the second floor of his House No.90/5, Malviya Nagar, New Delhi for an amount of Rs. 38 lakhs on 02.06.2011 and arranged for the balance amount of Rs. 12 lakhs from one Rajesh Goel after mortgaging his property and paid the amount in cash to the petitioner/accused on 17.01.2012. On that date, five cheques were issued by the petitioner and a loan agreement was drawn on a stamp paper of Rs. 100/-. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring Nos.039723, 039724, 039725, 0397256 and 039727, HDFC Bank, Chattarpur Branch, New Delhi has been given." 5. The translation has been done by this Court. The wordings of the document are not very clear. It does not give a clear picture as to who was giving what and under what circumstances. The document does not mention anything regarding the date and the purpose of loan. It does not even state as to on which date loan was given. 6. In his cross-examination, the respondent/complainant has stated that in the financial year 2011-2012 and 2012-2013 he did not file the Income Tax return. He admitted that he did not disclose about his source of income in the complaint as also in his evidence by way of affidavit. However, he reiterated that he sold his property bearing No.90/5, Second Floor, Malviya Nagar for which he received Rs. 38 lakhs and the rest of the amount i.e. Rs. 12 lakhs was obtained from one Rajesh Goel. No document with respect to the sale of the property in question or the mortgage of another property in favour of Rajesh Goel for garnering Rs. 12 lakhs has been brought on record. He further admits that the stamp paper (Exh.PW-1/F) was purchased on 08.02.2011. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lviya Nagar, New Delhi which fetched him Rs. 38 lakhs. There is nothing on record, at the instance of the respondent/complainant to infer about mortgage of another property in favour of Rajesh Goel who gave Rs. 12 lakhs to him and which was also paid to the petitioner as loan. There were litigations between the parties for which FIRs were registered and investigated and (vi) the loan document (Exh.PW-1/F) was not registered and the same was not put to the petitioner while his statement under Section 313 was being recorded by the Trial Court. 11. In order to appreciate the rival contentions of the parties, it would be necessary to examine Sections 118A, 138 and 139 of the N.I Act. Section 118 - Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 138 for the discharge, in whole or in part, of any debt or other liability. 12. For the application of provision of Section 138 of the NI Act, 3 ingredients are required to be satisfied, i.e., I. That there should be a legally enforceable debt; II. That the cheque should have been drawn from the account of the bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and III. That the cheques so issued is dishonoured for insufficiency of funds. 13. Under Section 139 of NI Act, unless the contrary is proved, the holder of the cheque shall be presumed to have received the cheque in discharge of any debt or liability. 14. Sub-clause (a) of Section 118 of the NI Act, inter-alia, provides that unless the contrary is proved, the drawn up negotiable instrument, if accepted, has to be presumed to be for consideration. 15. In Goa Plast (P) Ltd. vs. Chico Ursula D'souza & Anr.: (2003) 3 SCC 232, the Supreme Court has held that that the provisions of section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of section 139of the NI Act, it had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced on behalf of the parties would now be analyzed in terms of what has been stated above. 20. Learned counsel appearing for the petitioner has strenuously argued that the loan document namely Exh.PW-1/F is a vague document and does not signify anything. It has been reiterated that the document is undated and does not convey any correct sense. It is really difficult to understand the import of what has been stated in the document (Exh.PW-1/F). All that can be inferred from the aforesaid document is that there was some transaction of Rs. 50 lakhs for which five cheques were given. It does not even clearly state as to whether the five cheques were for Rs. 10 lakhs each or all those five cheques were of Rs. 10 lakhs. The stamp paper also appears to have been purchased on a much earlier date than the date on which the loan is said to have been given. That apart, it has been argued that under Sections 91 and 92 of the Evidence Act, when the terms of a contract or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that not filing of the Income Tax Return for the relevant years and no such transaction of Rs. 50 lakhs having been shown in any one of the Income Tax document renders the story of the prosecution improbable/unbelievable as it would only be an unaccounted money which may not be recoverable. It was further argued that an amount of Rs. 50 lakhs, all of which is stated to have been given in cash, is a huge amount and non reflection of the same in any document clearly indicates the false assertion of the respondent/complainant. The aforesaid amount was obtained after sale of a portion of a house and mortgage of another property, about which details have not been provided by the respondent/complainant. When the property was sold and when the money was given to the respondent/complainant and for how long was it kept with him in his house is not certain. In that event, the entire transaction becomes unacceptable and unaccounted for. 25. True it is that in all cases where the loan transaction is not referred to or reflected in the Income Tax Returns, one cannot jump to a conclusion that the presumption under Section 139 of the N.I Act stand rebutted. In cases where the amount is small, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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