Delhi District Court
Rangappa vs . Sri Mohan Reported In (2010) 11 Scc 441 ... on 3 September, 2019
IN THE COURT OF MS SAEMA JAMIL: MM03 (NI ACT) SOUTH
EAST: SAKET COURT: NEW DELHI
In the matter of:
CC No:625158/16
Babu Lal
S/o Sh. Krishan Lal
R/o H. No. C112, DDA Flats,
Kalkaji, New Delhi19. ......Complainant
Versus
Sh. Pramod Kumar
S/o. Sh. Sohan Lal
R/o. H. No. C201, DDA Flats,
Kalkaji, New Delhi19. .........Accused
Date of Institution of Complaint :10.02.2016.
Offence Complained of :u/s 138 N.I. Act.
Plea of Accused :Not Guilty.
Order reserved :28.08.2019.
Decision Accused :Acquitted.
Date of Decision :03.09.2019.
:JUDGMENT:
1.The present complaint under Section 138 Negotiable Instrument Act, 1881 (hereinafter referred to as the "NI Act") has been filed by Sh. Babu Lal (hereinafter referred to as the "Complainant") against Sh. Pramod Kumar (hereinafter referred to as the "accused").
Case of the complainant:
2. As per the averments made in the complaint, the accused approached the complainant in the month of July,2015 for taking a friendly loan of Rs.1,96,000/. In order to repay the said friendly loan, the accused issued CC No.625158/16 Page no. 1 of 12 cheque bearing no. 319973 dated 01.01.2016 in the sum of Rs.1,96,000/ drawn on IDBI Bank, Red Cross Road, New Delhi in favour of the complainant and assured that same will be honoured on its presentation for encashment.
However, when the complainant presented the cheque, it was returned back unpaid with the remarks 'drawers signatures differs' vide memo dated 04.01.2016. The complainant contacted the accused and apprised him of the dishonor. The accused told the complainant that he will pay his two installments next time but assured the complainant that the cheque can be presented after two days and the same will be honored. On the assurance, the complainant again presented the cheque but was shocked to learn from his banker that it had again been dishonored for the reason "drawers signature not as per mandate" vide return memo dated 07.01.2016. Lastly, the complainant sent a legal notice dated 20.01.2016 (dispatched on the same date) to the accused, intimating the accused person about the dishonour of the cheque and calling him to make the payment of the dishonoured cheque within 15 days from the date of receipt of notice. Despite service of the legal notice and expiry of stipulated period, the accused failed to make the payment of the dishonoured cheque and as such he has committed an offence u/s 138 of the Negotiable Instrument Act. Hence, the present complaint has been filed by the complainant against the accused.
Course of trial:
3. At the stage of the presummoning evidence, in support of the complaint, the complainant has led evidence by way affidavit which is exhibited as Ex.
CW1/A1 and relied upon the following documents:
Sr. No. Exhibit/ Mark Nature of document 1 Ex. CW1/A Original cheque in question dated 01.01.2016 2 Ex. CW1/B Return memo dated 04.01.2016 3 Ex. CW1/C & D Return memo dated 07.01.2016 4 Ex. CW1/E Legal notice dated 20.01.2016 CC No.625158/16 Page no. 2 of 12 5 Ex. CW1/F Postal receipt 6 Ex. CW1/G Complaint
It is observed that even though the affidavit erroneously mentions Ex. CW1/B and Ex. CW1/C as return memo dated 04.01.2016, the said return memo is not on the judicial file and the return memo dated 07.01.2016 has been marked as Ex. CW1/C & D. Therefore, to avoid confusion, the return memo dated 07.01.2016 will be referred to as Ex. CW1/C & D.
4. On the basis of the aforesaid presummoning evidence, the accused was summoned. Thereafter, on the appearance of the accused, notice of accusation was given to him u/s 251 Cr.P.C. to which he pleaded not guilty and claimed trial. His defence was also recorded. He stated that he gave four blank cheques to Sh. Parveen Kumar to get his property converted to free hold and that after 2 3 months Sh. Parveen Kumar again demanded fresh cheques on the ground that he had misplaced the previous cheques. The accused stated that the complainant is the uncle of Parveen and he has no dealing with the complainant. The accused further stated that the cheque in question does not bear his signature and was not issued by him to the complainant.
5. The application under Section 145(2) NI Act filed on behalf of the accused was allowed vide order dated 09.10.2017. The complainant deposed as CW1 and adopted the evidence led by him at presummoning stage as his post summoning evidence.
6. The accused crossexamined the complainant CW1. In his cross examination, the complainant stated that Parveen Kumar is his nephew and both of them are in the business of property. He deposed that he does not know if Parveen is engaged in the business of converting the properties into free hold. He further stated that he knows Govind Bhalla and he has signed an agreement between father of the accused and Govind Bhalla with respect to sale of property by the father of the accused to Govind Bhalla for an amount of Rs.8 CC No.625158/16 Page no. 3 of 12 lacs out of which Rs.6 lacs was paid by Govind Bhalla to the father of the accused. The remaining sale consideration of Rs.2 lacs was to be paid after the free hold of the said property by the accused.
The complainant in his crossexamination stated that the accused approached him for a loan in July 2015 and he does not remember whether the transaction between Govind Bhalla and the father of the accused was before or after July 2015. He has deposed that the loan was advanced to the accused 12 days after the accused approached him for the loan and the loan was for a period of about 45 months and the accused handed over the cheque on the same day when the alleged loan was advanced to him. He deposed that the accused signed on the cheque in the presence of the complainant. The complainant has further stated in his crossexamination that there was no understanding of returning of the loan amount in installments.
7. Statement of accused under Section 313 Cr. PC was recorded on 18.12.2018 wherein it was stated that the accused has not taken any loan from the complainant. It was stated that four cheques were given to Parveen Kumar for converting the property of his father into free hold after which his father expired. The accused stated that the complainant has misused the cheque in question.
8. An application was filed u/s 315 Cr. PC on behalf of accused which was allowed and accused was examined as DW1. DW1 in his examination in chief stated that for getting property bearing no. C201 DDA Flats Kalkaji, New Delhi converted into free hold from lease hold, he had given four blank cheques to Parveen in 2015. On Parveen's statement that the said cheques had been lost, he gave four more blank unsigned cheques to him and Parveen also took 67 blank signed papers from the accused and his father. DW1 was cross examined and discharged and vide a separate statement defence evidence was closed vide order dated 12.03.2019. The matter was put for final arguments. Subsequently, CC No.625158/16 Page no. 4 of 12 an application u/s 311 CrPC was filed on behalf of the accused for examining the wife and younger brother of the accused as DW2 and DW3 which was allowed. DW2 and DW3 supported and reiterated the version of DW1 in their examinationsinchief. They deposed that the father of the accused asked Parveen to convert his property into freehold and the accused gave four cheques to Parveen. They further deposed that in September, 2015, Parveen asked for four more cheques on the pretext that the previous cheques were lost and after the death of the father of the accused, the accused and his family members started receiving legal notices. DW3 brought court summons in case titled "Govind Bhalla v. Sohan Lal & Ors." (Ex. DW3/A) and also brought notification for New Circle rates dated 15.12.2015 (Mark A) according to which the market value of DW3's flat is approximately Rs. 50 lacs. DW2 and DW3 were crossexamined by Ld. Counsel for complainant and the matter was again listed for final arguments. The parties have been heard at length and relevant record has been perused.
Arguments advanced by the parties:
9. It was argued on behalf of the complainant that a friendly loan of Rs. 1,96,000 was advanced to the accused. It was further argued that the accused has not placed on record any documents to prove his defence and bald averments that blank cheques were given to the nephew of the complainant for converting a property into freehold do not help the case of the accused. Thus, it was argued on behalf of the complainant that the complainant has successfully raised a presumption under Section 139 NI Act read with Section 118 NI Act by proving all the prerequisites of section 138 and that the accused has failed to rebut the said presumption.
10. Per contra, it was argued on behalf of the accused that:
(1) The complaint does not mention when the loan was advanced and on what conditions.
CC No.625158/16 Page no. 5 of 12 (2) The cheque in question does not bear the signature of the accused and was not issued to the complainant.
(3) That the accused has successfully rebutted the presumption raised in favour of the complainant under Section 139 NI Act read with Section 118 NI Act.
Issues for Determination:
11. The issues that arise in the present case are:
(a) whether the complainant has prima facie shown enough evidence to raise presumption u/s 138 NI Act?
(b) whether the accused has successfully rebutted the presumption (if) raised under Section 139 NI Act?
Issue no. (a):
12. In order to ascertain whether the accused has committed the offence under Section 138 of the NI Act, it is deemed fit to examine separately as to whether all the indispensable ingredients constituting the offence have been proved by the complainant. The offence under Section 138 of the NI Act has the following ingredients:
a) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
b) Dishonor of cheque in question which must have been drawn on an account maintained by the accused;
c) Service of demand notice seeking payment of cheque amount within fifteen days from the date of service;
d) Nonpayment of cheque amount within fifteen days from the date of service of notice; and
e) Filing of complaint within one month from the date on which cause of action arises.
13. In the case at hand, the presentation of the cheque in question for encashment and dishonor of the cheque for the reason "drawers signature not as CC No.625158/16 Page no. 6 of 12 per mandate" is not disputed as it is proved by the return memo dated 07.01.2016 (Ex. CW1/C & D). Therefore, it is a matter of record and it has been proved that the cheque was presented within its validity period and dishonoured by the banker of the accused. It is also not disputed that the impugned cheque was drawn on the bank account of the accused and that the legal notice was received by the accused.
14. Thus, the presentation of the cheque in question, its dishonorment and service of legal demand notice is not under question. Consequently, the complainant has successfully shown enough evidence to raise presumption under Section 139 NI Act. The issue is, accordingly, decided in the affirmative.
Issue No. (b):
15. Now the moot question that remains to be determined is: whether the accused has successfully rebutted the presumption under Section 139 NI Act.
Legal position:
16. Section 139 NI Act read with Section 118, NI Act creates a rebuttable presumption in favour of the complainant. According to Section 118 NI Act, until the contrary is proved, it shall be presumed inter alia that every negotiable instrument was made, drawn, accepted or endorsed for consideration. It is also presumed that, consideration is present in every negotiable instrument until the contrary is proved.
17. There is no gainsaying that once the issuance of cheque is admitted by the accused/drawer, the presumption under Section 139 of the NI Act comes into play. As per the said Section 139 NI Act, it shall be presumed that the issuance of cheque was for the discharge, in whole or in part, of debt or other liability. The effect of the presumption has been explained in a catena of judgments, including the judgments of the Hon'ble Supreme Court passed in CC No.625158/16 Page no. 7 of 12 Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441 and Bharat Barrel & Drum Mfg. Co. vs. Amin Chand Pyarelal reported in 1999 (3) SCC 35. It has been held time and again that the said presumption is a rebuttable one and its only effect is to shift the initial burden of proof on the accused. It is also well settled that in order to rebut the presumption and shift back the burden of proof on the complainant, the accused is only required to raise a probable defence and he cannot be expected to discharge an unduly high standard of proof i.e. standard of proof for rebutting the presumption raised under Section 139 NI Act is "preponderance of probabilities". It is also well settled that the accused can rebut the said presumption either directly or by bringing on record preponderance of probabilities by reference to the circumstances upon which he relies. The accused, for this purpose, is also entitled under law to rely upon all the evidence led in the case including that of the complainant as well. It is also trite that Section 139 NI Act is an example of reverse onus clause and the accused cannot be expected to disprove the existence of legally recoverable debt or liability by direct evidence. Infact, it is also conceivable that in some cases, the accused may not need to adduce evidence of his/her own. However, at the same time it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the onus back to the complainant.
Appreciation of evidence:
18. Keeping in mind these basic principles, let us now examine if the accused has been able to successfully rebut the presumption raised under Section 139, NI Act read with Section 118 NI Act.
19. The case of the complainant in a nutshell is that the complainant gave a friendly loan of Rs. 1,96,000 to the accused and the defence of the accused is that he never took any loan from the complainant but gave blank cheques to the CC No.625158/16 Page no. 8 of 12 nephew of the complainant for converting his property into freehold.
20. It has been argued by the accused that the complaint is vague and that the case of the complainant has material inconsistencies.
The complaint is, indeed, vague. It does not mention when the alleged loan amount was advanced to the accused and for what period. Further, it is mentioned in the complaint that after the cheque in question got dishonored for the first time, the accused told the complainant that "he will give his two installments" next time and asked the complainant to present the cheque again after two days. But the complainant, in his crossexamination, has denied that there was any understanding between him and the accused to return the loan amount in two installments. Thus, there is a clear and material contradiction between what is mentioned in the complaint and what the complainant deposes in his crossexamination.
21. Also, the accused has stated that the cheque in question does not bear his signature and was not issued by him to the complainant.
It is true that bald averments are not sufficient to prove a defence. It is also true that the accused has not sought expert opinion to prove that the signature on the cheque in question is not his. However, this does not mean that this defence cannot be considered at all.
It is pertinent to note that the reason mentioned for dishonorment of the cheque is "drawers signature not as per mandate" which aids the argument made by the accused that the signature on the cheque is not his. Moreover, this court has the power to apply its own judgment and perception, by a mutual comparison and application of its own mind to such comparison for the purpose of arriving at an opinion as to whether a disputed signature has been executed by the same person that executed the admitted signature or not by virtue of Section 73 of Indian Evidence Act. Section 73 of Indian Evidence Act provides CC No.625158/16 Page no. 9 of 12 as under:
"Comparison of signature, writing or seal with others admitted or proved: In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. "
In Ajit Savant Majagavi Vs. State of Karnataka AIR 1997 SC 3235, the Hon'ble Supreme Court made following observation:
"Section 73 does not specify by whom the comparison shall be made. However looking to other provision of the Act, it is clear that comparison may either be made by handwriting expert, under Section 45 or by any one who is familiar with handwriting of the person concerned as provided by Section 47 of Evidence Act or by the court itself. As a matter of extreme caution and judicial sobriety the court should not normally take itself the responsibility of comparing the disputed signature with that of admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of expert. But this does not mean that the court has not the power to compare the disputed signature as this power is already available to the court under Section 73 ".
If the alleged signatures on the cheque are carefully perused and compared with the signatures on the bail bond furnished by the accused, vakalatnama, notice framed under Section 251, CrPC and statement of accused CC No.625158/16 Page no. 10 of 12 recorded under Section 313, CrPC, marked differences between the signature on the cheque and the signatures on the other documents are evident to the naked eye. If both the signatures are compared in the light of the defence raised by the accused, a doubt is definitely created as to whether the signature on the cheque is that of the accused or not and once this doubt is created, the onus shifts back to the complainant to prove that the cheque actually bears the signature of the accused, which the complainant has failed to discharge.
22. As far as the defence that the cheque in question was not given to the complainant but to his nephew Parveen along with other blank cheques for converting a property into freehold is concerned, the accused has been unable to prove the same. Ex DW3/A and Mark A are not relevant and do not prove anything.
However, it is settled law that it is not necessary for the accused to adduce evidence to prove his defence; he can also rely on the materials submitted by the complainant in order to raise a probable defence and show discrepancies in the complainant's case. In the present case, as already discussed, a conjoint reading of the complaint and the crossexamination of the complainant bring to surface major discrepancies and contradictions in the version of the complainant. Besides, the accused has also created a reasonable doubt that the signature on the cheque in question is not his.
Consequently, the accused has rebutted the presumption raised in favour of the complainant under Section 139 NI Act read with Section 118, NI Act and, accordingly, the second issue is decided in the affirmative.
Decision:
23. In view of the aforesaid discussion, the accused has successfully discharged his onus to rebut the presumption raised against him under Section 139 NI Act read with Section 118, NI Act and the complainant has failed to CC No.625158/16 Page no. 11 of 12 prove his case beyond reasonable doubt. Therefore, the accused Pramod Kumar is acquitted for the alleged offence punishable u/s 138 of N.I. Act.
A copy of this judgment be placed on the official website of the District Court. Announced in the open court today on 03.09.2019. Judgment contains twelve signed pages.
(SAEMA JAMIL)
Metropolitan Magistrate03 (NI Act)
SouthEast, Saket Courts, New Delhi
CC No.625158/16 Page no. 12 of 12