Delhi District Court
Smt. Meena Mishra vs . on 29 July, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA
COURTS, DELHI.
CC No. : 640/1/10
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0245022010
Smt. Meena Mishra
W/o Sh. Ganesh Mishra
Proprietor of Faishon Connection
O/o 107-B, DDA Flats, Vikrant Enclave, Mayapuri,
New Delhi-110064. .............. Complainant
Vs.
Sh. Kulbir Singh @ Kulbi Singh Choudhary
R/o B-27, Post Office Street, South Anarkali,
Opp. Rupa Public School, New Baldev Park, Krishna Nagar,
Delhi-110051. ............. Accused
Date of Institution : 30.08.2010
Plea of accused : Pleaded not guilty
Date of pronouncement : 29.07.2011
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant had friendly relation with accused Kulbir Singh and on request of the accused, complainant paid a sum of Rs.2,65,000/- to the accused as a friendly loan. The said friendly loan was without any interest and the accused for repayment of the same issued a cheque bearing no. 310507 in sum of Rs.2,65,000/- dated 26.03.2010 drawn on Indusind CC No. 640/1/10 Page No.: 1 / 14 Bank Ltd., Preet Vihar, Delhi. When the said cheque was presented for encashment the same was dishonoured on 19.06.2010 because of Insufficient Funds. Thereafter, the complainant contacted the accused for payment of the cheque amount but he refused and finally on 10.07.2010 a Legal Notice was sent by complainant through his counsel by Regd. A.D. and UPC. However, despite that the complainant failed to make any payment within the statutory period, hence, this complaint.
2. Complainant led pre-summoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 06.12.2010.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. It is to be noted that on 06.04.2011 when the accused first appeared before the court an issue as regards identification of accused by complainant was raised by Ld. Counsel for the accused and upon questioning the complainant in this regard u/s 165 of Indian Evidence Act, it was found that the complainant failed to identify the accused, though he was present in the court and complainant stated on oath before the court that she cannot identify the accused as there are no business transaction between her and the accused. The complainant further clarified that there are business transaction between the husband of complainant and accused and that complainant's husband can identify the accused. The court gave written notice u/s 251 Cr.P.C. for the offence punishable u/s 138 N.I. Act to the accused on 12.05.2011 to which accused pleaded not guilty CC No. 640/1/10 Page No.: 2 / 14 and claimed trial and disclosed his defence that the complainant is not known to him and that he had seen the complainant for the first time in the court and that there was no liability towards the complainant.
4. Vide order dated 12.05.2011 the matter was listed in Defence Evidence as no application was moved u/s 145(2) N.I. Act as per judgment of Hon'ble Delhi High Court titled Rajesh Aggarwal Vs. State dated 28.07.2010.
5. However, on 25.07.2011 accused appeared and declined to lead any defence evidence. On the same day, he made final arguments and counter arguments were also made by Ld. Counsel for the complainant. After that matter was fixed for orders for today.
6. Before proceedings further I would like to mention certain fact which are not disputed and admitted by the accused. The signature upon the cheque is not disputed, though the name, amount and date upon the same are not admitted.
7. The questions before the court for the disposal of the complaint are :-
(i)Whether the cheque in question was given by the accused to the complainant in discharge of legally enforceable debt?
(ii)Whether the cheque in question was dishonoured on presentation?CC No. 640/1/10 Page No.: 3 / 14
(iii)Whether the reason for dishonor of cheque was insufficiency of funds or amount of cheque exceeding the amount arranged to be paid from the account?
(iv)Whether the cheque was presented within the period of 6 months from the date when it was issued?
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank?
(vi)Whether the accused failed to make payment of cheque amount within 15 days of receipt of said notice?
8. In support of the case the Complainant had tendered her evidence in pre-summoning evidence as CW-1 which remains unchallanged as CW-1/ complainant was not cross-examined by the defence. In the affidavit the complainant reiterated/ reproduced all the facts which were mentioned in the Complaint itself and she exhibited the cheque as Ex. CW-1/1, the return memo dated 19.06.10 as Ex. CW-1/2, the legal notice dated 10.07.2010 as Ex. CW-1/3 and the Regd. Postal receipt and UPC vide which the same was sent to the accused dated 17.07.2010 are Ex. CW-1/4 an CW-1/5 respectively. The AD card returned back has been exhibited as Ex. CW-1/6.
9. On the basis of the said testimony of CW-1, complainant CC No. 640/1/10 Page No.: 4 / 14 sought conviction on the ground that the cheque in question was given in lieu of friendly loan amount without interest, which was given by the accused to the complainant and the accused himself failed to rebut this evidence as he did not lead any defence evidence.
10. On the other hand, Ld. Defence Counsel sought acquittal on the ground that accused is innocent and that he never issued cheque in favour of the complainant as accused was not even known to her and there was a question of taking friendly loan from accused.
11. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIOANS :
The complainant in order to prove the allegations, himself appeared in the witness box as CW-1 and tendered her affidavit in which he reiterated the allegations made by her in the complaint. The documents produced by the complainant and exhibited are :-
(a) Dishonored cheque bearing No. 310507 - Ex. CW-1/1.
(b) Returning Memo - Ex. CW-1/2.
(c) Legal Notice - Ex. CW-1/3.
(d) Receipt of Registered Post - Ex. CW-1/4.
(e) UPC - Ex. CW-1/5.
(f) Acknowledgment Card - Ex. CW-1/6.
12. PRESUMPTION :-
CC No. 640/1/10 Page No.: 5 / 14
The complainant produced the original cheques, return memo, legal notice and postal receipts. She also appeared as witness to support her allegations with her oral testimony on oath.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), the the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheques are dishonoured by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonoured by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
An argument was raised as regards the extent of presumption which can be raised in favour of the complainant and against the accused. While the complainant submitted that the presumption is as regards legally enforceable debt, the accused submitted that the presumption is as regards existence of debt only CC No. 640/1/10 Page No.: 6 / 14 and not as regards legally enforceable debt.
However this issue now stands settled in the light of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 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 impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. ...............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." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words :-
"The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to CC No. 640/1/10 Page No.: 7 / 14 the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of low, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It is further held that :-
"The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which CC No. 640/1/10 Page No.: 8 / 14 occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheque in question was issued in discharge of a legally enforceable debt or liability.
13. DEFENCE OF THE ACCUSED :-
The accused has admitted that the cheque belongs to the accused and that it also bears his signatures. The accused has disputed the issuing of cheque in favour of complainant stating that he never issued the cheque to the complainant as the complainant is unknown to him and he had not even seen the accused prior to his appearance in the court. Thus, the accused has taken two defences, firstly, that there is no legally enforceable debt with respect to the cheque in question qua the complainant and secondly, that neither the complainant was known to accused, nor accused was known to the complainant, hence, there was no occasion for taking friendly loan form the complainant.
14. Generally it is seen that blank signed cheques without CC No. 640/1/10 Page No.: 9 / 14 filling of other particulars are taken by creditor from the debtor and those are later on misused. Creditor after filling up the particulars present that cheque and on its dishonour initiate proceedings under section 138 of the Act to put pressure on the debtor to fulfill his unjust demand. In such situation the question arises about validity and legality of such type of blank cheque. In Shri Taher N. Khambati Vs. Vinayak Enterprises, the Hon'ble Andhra Pradesh High Court held that if a creditor while giving certain sum to debtor obtains a blank signed cheque as a threat to the drawer with a view to make use of it for realization of amount then cheque can not be treated as voluntarily issued for discharge of debt and on its dishonour offence under section 138 of the Act shall not be attracted because payee creditor even at the time of its presentation had not expected that the same would be honoured and he was presenting the cheque only with a view to get an endorsement which would enable him to proceed under section 138 of the Act.
15. Section 20 of the Act deals with inchoate stamped instruments. As per this provision, if a person gives duly signed but a blank or partly written cheque, he is deemed to have given implied authority to the holder to fill up the particulars in it and complete it and thus make him liable for the payment mentioned in it. Hence, a cheque, partly written or blank, but signed by the account holder and filled up by another is valid one.
16. Thus, blank signed cheque is a valid one and deemed CC No. 640/1/10 Page No.: 10 / 14 authority is given to creditor to fill up the same and prosecution on it is not always bad if it is issued against debt and not as a security. However facts and circumstances of each case decides the legality and validity of such blank cheque whether the same were voluntarily given or obtained under coercion.
17. Now, in the present case complainant Meena Mishra stated in her affidavit that the cheque in question was issued to him for repayment of friendly loan of Rs.2,65,000/-, hence, the cheque was issued with respect to a legally enforceable debt. The testimony of complainant, which remains unrebutted, is sufficient to raise the presumption as per section 20 of N.I. Act that even if the cheque in question was inchoate, the complainant has the authority to fill it up and present the same for encashment.
18. The important question which remains to be adjudicated is : whether the cheque was issued in discharge of legally enforceable debt?
In view of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 it is clear that a rebuttable presumption arises in favour of the complainant that the cheque Ex. CW-1/A was issued by the accused in discharge of legally enforceable debt. As stated, the presumption is rebuttable and the onus to rebut the same lies upon the shoulders of the accused.
The accused seeks to rebut the said presumption on the basis of the proceedings that took place before the court on CC No. 640/1/10 Page No.: 11 / 14 06.04.2011. As the entire defence of the accused is based upon the proceedings that took place on 06.04.2011, hence the court is reproducing the order sheet dated 06.04.2011 which is as under :
"06.04.2011 Present: Complainant in person.
Ld. Counsel for the accused.
Ld. Counsel for the accused states that he has not received the entire set of documents. The same be supplied to the Ld. Counsel for the accused on or before the NDOH.
Ld. Counsel for the accused further submits that complainant in her complaint stated that the loan was given as a friendly loan with respect to the cheque in question. He further submits that accused is present in the court today and for proper disposal of the case, he requests the court to ask to complainant whether she can identify the accused or not as the complainant claim that she advanced friendly loan to the accused.
In view of the submission of Ld. Counsel for the accused and the power conferred on this court under section 165 of Indian Evidence Act, I have put the question to the complainant, present in the court today to identify the accused who is also present in the court today to which complainant replied that she cannot identify the accused as there is no business transaction between her and the accused and the same is between her husband and accused and further stated that her husband can identify the accused. Statement of complainant on oath recorded separately as regards the same.
At this stage, Ld. Counsel for the accused is asked to produce the accused and the accused has come forward as he was sitting in the court at the time of deposition of complainant. Now, accused is admitted to bail upon furnishing a personal bond in the sum of Rs.10,000/- with one surety in the like amount. Personal bond and surety bond furnished and accepted.
To come up for framing of notice on 12.05.2011.
(S.P.S. LALER) MM-06(East)/KKD/06.04.2011"
The statement of complainant Meena Mishra recorded on 06.04.2011 is also reproduced as under :
"06.04.2011 Statement of complainant Smt. Meena Mishra W/o Sh. Ganesh Mishra, proprietor M/s Fashion Connection situated at 107-B, DDA Flats, Vikrant Enclave, Mayapuri, New Delhi-64.
On S.A. CC No. 640/1/10 Page No.: 12 / 14 Court Q. Can you identify the accused who is present in the court today? Ans. I cannot identify the accused as there is no business transaction between me and accused. The same is between my husband and accused and my husband can identify the accused.
Court observation : Ld. Counsel for the accused is asked to produce the accused who is present in the court today.
Ld. counsel for the accused has produced the accused who was sitting in the court at the time of deposition of complainant. RO & AC (S.P.S. LALER) MM-06(East)/KKD/06.04.2011"
19. From the proceedings that took place before the court on 06.04.2011, it is quite clear that the accused was not known to the complainant till 06.04.2011 i.e., before he appeared before the court. There were business transactions between the husband of complainant and accused but there was no friendly relation between the complainant and the accused and in absence of any friendly relationship between the accused and the complainant, there cannot be any possibility of grant of friendly loan to the accused by the complainant.
20. The fact that the complainant could not identify the accused and that the accused was not known to complainant are sufficient in the opinion of the court to rebut the presumption raised u/s 139 N.I. Act.
21. Once the presumption u/s 139 N.I. Act stands rebutted, nothing remains on record to prove that a friendly loan of CC No. 640/1/10 Page No.: 13 / 14 Rs.2,65,000/- was advanced by complainant to the accused and in absence of such proof beyond reasonable doubt, the fact of legally enforceable debt do not stand proved.
22. Accordingly, accused Kulbir Singh @ Kulbi Singh Choudhary is acquitted of the offence under section 138 N.I. Act.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 29.07.2011.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 29.07.2011 Certified that this judgment contains 14 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 29.07.2011 CC No. 640/1/10 Page No.: 14 / 14