Delhi District Court
13. In Rangappa vs . Mohan, Air 2010 Sc 1898, It Was Observed ... on 5 December, 2012
IN THE COURT OF CIVIL JUDGEI/ METROPOLITAN MAGISTRATE, NEW
DELHI DISTRICT, NEW DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
C.C. No: 412/11
Unique Case ID No. 02403R07233092006
Ajipal
S/o. Late Sh. Mangat Ram
R/o. 237, Khanpur, New Delhi62.
.....Complainant
Versus
Dinesh Sen
S/o. Sh. Dinesh Sen
R/o. H. No. J111, Janta Jeevan Camp,
Tigri, New Delhi62.
.....Accused
COMPLAINT UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT, 1881
DATE OF INSTITUTION : 13.02.2006
DATE OF ARGUMENTS : 30.11.2012
DATE OF DECISION : 05.12.2012
JUDGMENT
Brief Facts
1. The brief facts giving rise to the present complaint are that the complainant Shri Ajipal is stated to be residing at 237, Khanpur, New Delhi110062 with his family. The complainant is a blind person and writes bhajans and devotional songs for livelihood. The accused Sh. Dinesh Sen is stated to be having his own business in the same area where the complainant is residing. The complainant and the accused are stated to be CC No.412/11 Ajipal v. Dinesh Sen Page No. 1 of 16 neighbours and they used to have good relations. It is further stated that the accused Sh. Dinesh Sen approached the complainant for a sum of Rs. 2 lakhs as he was in dire need of money for his business. It is further stated that the complainant gave Rs. 2 lakhs to the accused from his sources and the accused assured him that he will return the said money within a short period. It is further stated that when the complainant approached him for repayment, the accused issued a cheque of Rs. 2 lakhs bearing number 398028 dated 21st December, 2005 drawn on Federal Bank Ltd, Nehru Place, New Delhi and assured the complainant that the said cheque will be honoured on presentation.
2. The complainant presented the said cheque in his bank State Bank of India, Tigri, New Delhi. It was returned unpaid vide returning memo dated 22nd December, 2005 with remarks "funds insufficient". It is further stated in the complaint that in addition to the cheque, the accused had also signed a pronote in favour of the complainant admitting his liability on the cheque. The complainant issued legal notice to the accused on 9th January, 2006 at his residential address by registered AD as well as courier. It is further stated that the accused did not pay the cheque amount within the time stipulated in the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). Therefore, it is stated that the accused has committed the offence under Section 138 of the NI Act. Proceedings before Court CC No.412/11 Ajipal v. Dinesh Sen Page No. 2 of 16
3. The present complaint was received by way of assignment on 14th February, 2006. The Ld. Predecessor took cognizance and summoned the accused. On 23rd January, 2012 notice of accusation was framed against the accused by the Ld. Predecessor to which he pleaded not guilty and claimed trial and gave his plea of defence that he had given a blank cheque to the complainant upon a promise that the complainant would procure a loan of Rs. 10,000 for him. The complainant did not procure the said loan. He also stated that when he asked the complainant about the cheque, the complainant had informed him that the cheque had been eaten by rodents.
4. During trial, the complainant produce himself as CW1 who tendered his evidence by way of affidavit Ex CW1/A and relied upon documents Ex CW1/1 to Ex. CW1/8. Thereafter, the complainant was crossexamined after which the complainant closed his evidence.
5. In his examination conducted under Section 313 of Cr.P.C, the accused stated that he is a barber by profession. He also stated that the complainant used to keep visiting him since he was staying in his neighbourhood. He also stated that he had asked for a loan of Rs. 10,000 from the complainant. However, the said loan of Rs. 10,000 was not given by the complainant to him at that time. Instead, the complainant took a blank signed cheque from the accused as security and promised to give the accused a loan of Rs. 10,000. He also stated that the complainant has CC No.412/11 Ajipal v. Dinesh Sen Page No. 3 of 16 made false story of loan of Rs. 2 lakhs. He also stated that he does not remember the date on which the cheque was issued as security by him to the complainant. He also stated that he did not know that the cheque Ex. CW1/1 was dishonoured as he was not in Delhi at that time because he was unwell and went to Rajasthan for treatment. He also stated that the pronote Ex. CW1/3 does not bear his signature and he did not issue any such pronote to the complainant. He also stated that he did not receive any legal demand notice from the complainant and a false complaint has been filed against him.
6. In his defence, the accused produced Ms. Munni, mother of the accused who was examinedinchief in which she deposed that the complainant Sh. Ajipal used to come at their residence. She also deposed that her son Dinesh Kumar asked for Rs. 10,000/ as loan from the complainant. She also deposed that her son had given a blank signed cheque for Rs. 10,000/ but the complainant neither gave Rs. 10,000/ nor returned the cheque in question to her son. She also deposed that the complainant had misused the blank signed cheque of her son. She also deposed that the accused Dinesh Sen is not literate and she herself is also illiterate. She deposed that they are poor persons and have no capacity to take loan of Rs. 2 lakhs. However, in her crossexamination, she admitted her address at J111, Janta Jeevan Camp, Tigri, Devli, New Delhi and also stated that the accused Dinesh Sen used to stay with her. She also stated in her CC No.412/11 Ajipal v. Dinesh Sen Page No. 4 of 16 crossexamination that Lalita, one of her daughters, who is educated and presently studying in 9th standard had received the legal notice dated 9th January, 2006 and informed her about the legal notice. She also stated that the legal notice was destroyed due to water being filled up in the jhuggi. She also stated that she cannot identify the signatures of her son Dinesh Sen. After the crossexamination of DW1, the accused had closed his defence evidence.
7. This court has heard Sh. M.L. Sharma, Ld. Advocate for the complainant and Sh. Praveen Sharma, Ld. Advocate for the accused. Arguments of Advocates
8. Ld. Advocate for the complainant submitted that the signatures on the cheques are admitted and the presumption under Section 139 of the NI Act is raised. He also submitted that in addition to the said presumption, the pronote Ex CW1/3 also proves the liability of Rs. 2 lakhs against the accused. He also submitted that the legal notice was also received by the accused, as admitted by DW1 also that the address mentioned on the legal notice is the correct address of the accused and the sister of the accused had received the same. He further submiited that the deposition of the mother of the accused that no loan of Rs. 2 lakhs was taken by the accused cannot be relied upon as she is an interested witness. Therefore, the accused should be convicted under Section 138 of the NI Act. CC No.412/11 Ajipal v. Dinesh Sen Page No. 5 of 16
9. On the other hand, Ld. Advocate for the accused has submitted that the accused did not receive any legal notice. He also submitted that the complainant has not filed any IncomeTax Return showing that the alleged loan was given by the complainant to the accused. He also submitted that the complainant has further submitted that the alleged loan of Rs. 2 lakhs was given by him to the accused in cash which is in violation of Section 269 SS of the Income Tax Act, 1961 which states that the loan transaction of Rs. 20,000/ and above should be made by a cheque or demand draft and not by way of cash. He also submitted that the contents of the cheque and the signature on the cheque Ex CW1/A have been written by different inks which goes to prove the fact that the accused had issued the cheque Ex CW1/1 as security.
10. This court has heard Ld. Advocates for the complainant and the accused and perused the record.
Findings
11. As far as the contention raised on behalf of the accused that no legal notice under Section 138 of the NI Act was served, the same cannot be accepted as the legal notice dated 9th January 2006 has been addressed to H No. J111, Janta Jeevan Camp, Tigri, New Delhi - 110062 and the same has been accepted by the defence witness DW1 Smt Munni as the correct address where the accused also resided with her. The CC No.412/11 Ajipal v. Dinesh Sen Page No. 6 of 16 complainant has also produced courier receipt Ex. CW 1/6 and Registered AD Ex. CW 1/5 and AD Card Ex. CW 1/7 which bears the signature of Lalita, sister of accused. DW1 Munni, who is the mother of the accused has admitted in her crossexamination the receipt of legal notice through her daughter Lalita and has also admitted that the accused resided with her. Therefore, in view of presumption raised under Section 27 of the General Clauses Act, 1897 the legal notice is deemed to be served on the accused as it was sent on the correct address of the accused. Moreover, DW1 has admitted the receipt of legal notice through her daughter who happens to be the sister of the accused Dinesh Sen and it is an admitted fact that accused used to reside with them when the legal notice was sent.
12. The signatures on the cheque are admitted and the present complaint has been filed within limitation. Therefore, the presumption under Section 139 of the NI Act is raised.
13. In Rangappa Vs. Mohan, AIR 2010 SC 1898, it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the CC No.412/11 Ajipal v. Dinesh Sen Page No. 7 of 16 impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of CC No.412/11 Ajipal v. Dinesh Sen Page No. 8 of 16 proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. " (emphasis added)
14. Therefore, there is a presumption against the accused that the cheque Ex CW1/1 was issued for legally enforceable debt or liability. The accused has raised a defence that the cheque Ex CW1/1 was issued as a security by him for the loan of Rs. 10,000 to be taken by the accused from the complainant. However, the complainant did not give him the loan of Rs. CC No.412/11 Ajipal v. Dinesh Sen Page No. 9 of 16 10,000/, as asked by him. The question before this Court is whether the accused has been able to prove the said defence. To prove the same, the accused has produced his mother in the witness box who has given an oral testimony deposing the said defence in her examination in chief.
15. It is well settled that for rebutting the presumption raised under Section 139 of the NI Act, the accused must raise a probable defence. However, the story built by the accused does not appear to be a probable one. First of all, the accused has tried to raise a defence that he himself asked for a loan of Rs. 10,000/ from the complainant. Then, he further states that even those Rs. 10,000/ were not given by the complainant to him. In that case, the need for the accused to issue the cheque Ex CW1/1 as security is itself questionable when the loan of Rs. 10,000/ as alleged by the accused was also not given by the complainant. Moreover, the accused has himself not stepped into the witness box and substantiated his own defence. In that view of the matter, the accused has failed to raise any probable defence and has also failed to rebut the presumption raised under Section 139 of the NI Act.
16. On the other hand, the complainant has produced the pronote Ex CW1/3 dated 21st December, 2005, whereby the accused Dinesh Sen has admitted Rs. 2 lakhs as liability due to the complainant. The contention on behalf of the accused that the signatures on the pronote are not his are CC No.412/11 Ajipal v. Dinesh Sen Page No. 10 of 16 not substantiated by any evidence. In exercise of power under Section 73 of the Evidence Act, this Court has compared the admitted and disputed signatures of the accused as below:
Fig. 1 Admitted signature of the accused on the cheque Fig. 2 Three disputed signatures of the accused on the pronote Fig 3: Signatures of the accused on the arrest memo Fig 4: Signatures of the accused on the seizure memo CC No.412/11 Ajipal v. Dinesh Sen Page No. 11 of 16 Fig 5: Signatures of the accused on the vakalatnama
17. Upon comparing the signature of the accused as appearing on the cheque Ex. CW1/1 (being admitted signatures of the accused) and the pronote Ex. CW1/3, the two signatures appear to be same written by the handwriting of one and the same person.
18. From the record, the signatures of the accused on the vakalatnama, personal search memo and the arrest memo are written mentioning only the first name of the accused. Even that first name appears to be written by the same person who has signed on the pronote Ex CW1/3. The fact that the accused had only written his first name on the admitted signatures as appearing on the vakalatnama, personal search memo and the arrest memo does not infer that the accused used to sign by only mentioning his first name. Even otherwise, the admitted signatures of the accused as appearing on the cheque Ex. CW1/1 are written mentioning the complete the name of the accused.
19. In that view of the matter, this court has no option but to come to an irresistible conclusion that the pronote Ex CW1/3 dated 21st December, CC No.412/11 Ajipal v. Dinesh Sen Page No. 12 of 16 2005 was executed by the accused only and had admitted the liability of Rs. 2 lakhs.
20. Therefore, the complainant has proved its case that he had given a loan of Rs. 2 lakhs to the accused. Therefore, the cheque Ex CW1/1 was issued in discharge of legally recoverable debt or liability owed to the complainant.
21. The contention on behalf of the accused that the complainant has not shown the loan transaction in IncomeTax Returns is negated by the fact that the complainant is not an IncomeTax assessee, as stated by him in his crossexamination as CW1. Therefore, the decision relied upon by the accused in Sanjay Mishra v. Kanishka Kapoor 2010 (5) RCR (Criminal) 677 (Bom) is not applicable.
22. Moreover, mere violation of a fiscal statute will not change the fact that the accused had taken loan from the complainant. The social background of the complainant as well as the accused and the common course of events has to be considered. The contention that loan of more than Rs.20,000/ has to be given by way of cheque or demand draft and not cash cannot be accepted as the violation of Section 269SS of the Income Tax Act does not render the fact of giving the loan of more than Rs. 20,000/ (Rs. 2,00,000/ in the present complaint) as nonexistent. Moreover, the pronote Ex.PW1/3 being proved to be executed by the accused itself proves the complainant. CC No.412/11 Ajipal v. Dinesh Sen Page No. 13 of 16
23. The decisions relied upon by the accused in B. Girish v. S Ramaiah 2011 (2) Acquittal 506 (Karnt) is not applicable to the facts of the present case as the present is not a case where there is no documentary evidence to prove the monetary transaction. The complainant has proved the execution of pronote Ex.PW 1/3. The decisions in Krishna Janardhan Bhat v. Dattaraya G. Hegde 2008 (1) Crimes 227 (SC) and Vipul Kumar Gupta v. Vipin Gupta (decision dated 24.08.2012 in Crl. LP 461/2011, High Court of Delhi) are also not applicable in view of the execution of pronote Ex. PW 1/3.
24. In view of the aforesaid analysis, the complainant has been able to prove that the accused has committed the offence under Section 138 of the NI Act.
25. Therefore, the accused is convicted for the offence committed under Section 138 of the NI Act with respect to the dishonour of cheque no. 398028 dated 21st December, 2005 for Rs. 2 lakhs Ex CW1/1. He shall be heard on the point of sentence on 11th December 2012 at 2 pm. Announced in the Open Court (Apoorv Sarvaria) on 05 of December, 2012 th Civil JudgeI/MM, New Delhi District New Delhi CC No.412/11 Ajipal v. Dinesh Sen Page No. 14 of 16 IN THE COURT OF CIVIL JUDGEI/MM, NEW DELHI DISTRICT, DELHI Presided by : Mr Apoorv Sarvaria, DJS CC No.412/11 11.12.2012 Present: Sh. M L Sharma, Advocate for the complainant alongwith complainant.
Sh. Praveen Sharma, Advocate for the convict alongwith convict Sh.
Dinesh Sen and surety.
1. The accused was convicted for the offence under Sections 138 of the Negotiable Instruments Act, 1881 vide Judgment dated 05.12.2012.
2. In support of the case of the convict, the Ld. Advocate has requested for imposition of a lenient punishment on the ground that that the convict has been convicted due to a technical reason. He further submits that the convict has a blind wife and three small children to take care of. Ld. Advocate for the convict has further submitted that the convict has no past malantecedents. On the other hand, Ld. Advocate for the complainant submits that he would not press for imposition of a harsh sentence of imprisonment. However, the complainant should be entitled to double the cheque amount as compensation.
3. Keeping in view the object of the Negotiable Instruments Act, 1881, this Court does not deem it appropriate to extend the benefit of Probation of Offenders Act, 1958 to the convict in the present case.
4. In view of the submissions made by the Ld. Advocate for the convict, the objects of the Negotiable Instruments Act, 1881 the fact that the criminal proceedings for the offence of dishonor of cheque under Section 138 NI Act are not to be resorted to merely for the purpose of recovery of the cheque amount, and the judicial discretion available with a Magisterial Court under Section 138 NI Act, the convict Sh. Dinesh Sen is hereby sentenced to simple imprisonment for a term of two months and to pay fine of Rs. 2,50,000/ payable as compensation to the complainant Sh. Ajipal. The direction to pay compensation has been issued in exercise of power under Section 357 (3) of Cr.P.C. In case of default of payment of the compensation, the convict shall undergo simple imprisonment of six months.
5. The Ld. Advocate for the convict has moved an application under Section 389 of Cr. P.C. seeking suspension of sentence and release of convict on bail. The convict is admitted to bail on furnishing a bail bond in the sum of Rs.20,000/ with CC No.412/11 Ajipal v. Dinesh Sen Page No. 15 of 16 one surety of like amount. The bail bonds furnished are accepted. The FDR of Rs. 20,000/ is taken on record.
6. The sentence of imprisonment is suspended upto 11.01.2013 or till the filing of appeal whichever is earlier.
7. A copy of this Order as well as the Judgment given free of cost to the convict. File be consigned to record room.
(Apoorv Sarvaria) Civil JudgeI/MM, New Delhi /11.12.2012 CC No.412/11 Ajipal v. Dinesh Sen Page No. 16 of 16