Delhi District Court
Cc No. 5051/14 Om Parkash Bhardwaj vs . Geeta Rani Page No. 13/13 on 23 August, 2014
IN THE COURT OF SHRI RAVINDER SINGHII
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI
Case No. : 5051/14
Unique Case ID No. : 02405R0107502011
Om Parkash Bhardwaj
S/o Sh. Daya Kishan
R/o WZ199E, Raj Nagar,
PartII, Near Gupta Hardware,
Palam Colony,
New Delhi110045. .................................................Complainant
Versus
Geeta Rani
W/o Sh. Ashok Kumar
R/o RZ239D208A, Old Gurdwara
DDA Park Road, Raj Nagar PartII,
Palam Colony,
NewDelhi110045.
Also at:
Geeta Rani
W/o Ct. Ashok Kumar
Belt No. 3382/DAP, PIS No. 28031624,
First Batallian, DCP Recruitment Cell,
New Police Line, Kingsway Camp, Delhi.
Also at:
C/o Sh. Ramesh
S/o Sh. Tek Chand
Village Chhoti Goond (Khark Boon),
Teshsil & Distt. Bhiwani, Haryana.
Also at:
C/o Sh. Anil Singh Namberdar
S/o Sh. Viza Singh
Village Kanti, Teshsil Narnaul,
Distt. Mahendergarh, Haryana........................................Accused
Date of Institution: 23.02.2011
Plea of the accused: Pleaded Not Guilty
Date of Reserving Judgment: 19/07/2014
Sentence or final Order: Convicted
Date of Judgment: 23/08/2014
CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (hereinafter Said as NI Act) filed by the complainant Sh. Om Parkash Bhardwaj against the accused Geeta Rani W/o Sh. Ashok Kumar.
PROLOGUE (COMPLAINANT'S VERSION)
2. The factual matrix necessary for disposal of the present case as per the allegations in the complaint are that the accused and her husband were family friends of the complainant being the neighbors of the complainant. It is alleged that on 15.08.2010 the accused along with her husband approached the complainant and told him that she is in dire need of money as her Bhabhi is suffering from Cancer and she needs vast sum of money for her treatment. It is further alleged that the accused also stated that she and her husband are in the process of selling their house situated in Raj Nagar, PartII, Palam Colony, New Delhi. It is further alleged that the accused also stated that she needs Rs. 20 lacs for her aforesaid requirement and she will return the same within the period of 3 months and also placed original documents of her property with the complainant as collateral security. It is further alleged that keeping in view the friendly relations the complainant refused to accept the property paper as a collateral security and advanced a sum of Rs. 19,70,000/ to the accused by arranging from his own funds and also by raising friendly loans from other sources. It is alleged that to show her bonafide the accused issued a post dated cheque bearing no. 458602 dated 27.11.2010 for a sum of Rs, 19,70,000/ drawn on State Bank of India, Palam Colony branch in favour of the complainant. It is further alleged that in the month of November, 2010 the accused and her husband disappeared CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 and were not traceable and after lot of efforts complainant contacted the accused at her village as well as her husband in his office. It is further alleged that both the accused as well as her husband assured the complainant that enough funds are available in the account and complainant is free to present the cheque in the last week of December, 2010. It is alleged that the complainant presented the cheque in question for encashment with its banker, and the same was dishonored vide cheque returning memo with remarks "Funds Insufficient". It is further alleged that thereafter the complainant has given a legal notice of demand dated 10.01.2011 to the accused which was sent through registered post and UPC thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand as a result of which the complainant has filed the present complaint for prosecution of the accused U/s 138 of the NI Act.
COMPLAINANT'S EVIDENCE
3. The complainant Om Parkash Bhardwaj got himself examined as CW1 and adopted his pre summoning evidence affidavit Ex. CW1/A. CW1 also relied upon documents Ex. CW1/1 to Ex. CW1/8. Ex. CW1/1 is the original cheque in question, Ex. CW1/2 is the cheque returning memo, Ex. CW1/3 is the legal notice of demand, Ex. CW1/4 to Ex. CW1/7 are the returned envelopes and Ex. CW1/8 is the original non cognizable receipt in respect of loss of original postal receipts. CW1 was duly cross examined by Ld. Counsel for the accused. Thereafter, the complainant's evidence was closed at request.
STATEMENT OF ACCUSED U/S 313 OF THE CODE
4. Thereafter the statement of accused was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to the accused Geeta Rani. The accused CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 denied that she along with her husband has approached the complainant for the loan of Rs. 20 lacs for the treatment of her Bhabhi. The accused further denied that she has taken loan of Rs. 19,70,000/ from the complainant and also denied that the she has assured the complainant for repaying the same within three months. The accused further stated that the cheque in question does not bears her signature. The accused further stated that she has also not filled the particulars in the cheque in question however, the accused admitted that the cheque in question belongs to her. Accused further stated that she is not aware about the dishonoring of the cheque in question. The accused further denied that she has received the legal demand notice. The accused further stated that the complainant has deposed falsely against her. The accused also stated that the complainant along with one Rajiv Kumar has got an electricity meter installed at her house and for the said purpose only the cheque book has been taken by the complainant. The accused also stated that the complainant has misused her cheque for filing the present complaint case. Altogether the accused denied all her liability towards the complainant. Thereafter the case was fixed for defence evidence.
DEFENCE EVIDENCE.
5. Accused examined three witnesses in her defence i.e. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony, DW2 Dr. Amulya Bharat and DW3 handwriting expert Deepak Jain. All the defence witnesses were duly cross examined by Ld. Counsel for the complainant. Thereafter defence evidence was closed at request of the accused and the case was listed for final arguments.
FINAL ARGUMENTS
6. Final arguments were addressed on behalf of both the parties. I have heard Ld. Counsels for both the parties and perused the CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED 7 It is not disputed by the accused that the Cheque in Question Ex. CW1/1 is drawn on the account maintained by her. Infact the accused in her statement U/s 313 of the Code has CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 specifically admitted that the cheque in question Ex. CW1/1 belongs to her, however the accused denied her signature's on the same. Further the presentation, dishonor of the cheque in question and the cheque returning memo has also not been challenged by the accused. Therefore, In light of the evidence on record coupled with the admission by the accused it stands duly proved that the cheque in question Ex CW1/1 is drawn on the account of the accused. Further it also stands proved that the cheque in question Ex. CW1/1 was got dishonored vide cheque returning memo Ex. CW1/2 with the reason "Funds Insufficient".
8 From the perusal of the entire evidence it has come to fore that two fold defence has been taken by the accused. Firstly, that she has not been served with the legal demand notice by the complainant and the Secondly that she has not taken any loan from the complainant and the cheque in question Ex. CW1/1 do not bears her signature and the same has not been issued by her in order to discharge her loan liability as alleged by the complainant.
9 Coming to the first line of defence taken by the accused that she has not been served with the legal demand notice by the complainant. It is pertinent to note that the complainant Om Parkash Bhardwaj has examined himself as CW1 and has specifically stated in his evidence affidavit Ex. CW1/A that he has got issued the legal demand notice Ex. CW1/3 to the accused through registered post and UPC. The complainant (CW1) has not placed the postal receipts on record vide which the legal demand notice has been send to the accused however the complainant has tendered in evidence a non cognizable receipt Ex. CW1/8 in respect of the missing postal receipts. The complainant has also tendered the returned envelopes along with AD cards as Ex. CW1/4 to Ex. CW1/7. The accused Geeta Devi has denied the receipt of the legal demand notice both at the time of framing of notice U/s 251 of the Code and also in her Statement U/s CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 313 of the Code. On perusal of the returned envelopes Ex. CW1/4 to Ex. CW1/7 it is revealed that they have been sent at all the addresses of the accused mentioned by the complainant in the complaint. The returned envelopes Ex. CW1/4 to Ex. CW1/7 also bears the postal receipt dated 12/01/2011 which is generated at time of booking a parcel by the postal authorities. Therefore there remains no doubt that the legal demand has been sent by the complainant to the accused at the address mentioned on the same. Further it is also revealed that all of them have been returned unserved. It is interesting to see that throughout the trial the accused has never challenged that the addresses mentioned on the legal demand notice Ex. CW1/3 or the returned envelopes Ex. CW1/4 to Ex. CW1/7 are incorrect or she was not residing at the said addresses at the time when the legal demand notice was sent to her. Further it is also surprising to see that accused has simply denied the receipt of the legal demand notice Ex. CW1/3 and has not any lead any evidence to corroborate her stand. Furthermore not even a suggestion to this effect was put to witness CW1 (Complainant) during his cross examination by the counsel for the accused. Therefore in the absence of any contrary evidence it stands proved that the legal demand notice Ex. CW1/3 has been sent by the complainant at the correct addresses of the accused. It is trite to say that when there is service of notice by post on the correct addresses of the accused which evidently has taken place in the present case intentional non receipt of the same on the part of the accused would amount to proper service. Otherwise, a trickster cheque drawer would avoid receiving the legal demand notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. Therefore, there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that the Legal Demand Notice has not been served upon her which is totally absenting in the present case. It was for the accused to rebut the presumption about the service of notice and CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 show that she had no knowledge that the notice was brought to her address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that remarks on the returned envelopes are incorrect or she was not responsible for the non service. Except denials the accused has not any lead any evidence to corroborate her stand. Therefore it stands proved that the legal demand notice Ex. CW1/3 has been served upon the accused. As such non receipt of the legal demand notice as a defence on part of the accused has no force.
10 Coming to the second line of defence taken by the accused that she has not taken any loan from the complainant and the cheque in question Ex. CW1/1 does not bears her signature and the same has not been issued by her in order to discharge her loan liability as alleged by the complainant.
11 It is trite to say that the crux of penal liability under Section 138 of NI Act is that the Cheque in question must be issued for the discharge of any legal debt or liability. Existing of legal debt or liability is sine qua non for constituting the offence.
12 In the case in hand it is the case of the complainant that on 15.08.2010 the accused along with her husband has approached him for granting a loan of Rs. 20,00,000/ lakhs stating that she is need of money for treatment of her bhabhi and a loan of Rs. 19,70,000/ was granted by the complainant to the accused for three months and in discharge of her liability the accused has issued the cheque in question Ex. CW1/1. The accused has refuted the claim of the complainant. At the time of framing of notice under section 251 of the code the accused has stated that she has not issued that cheque in question Ex. CW1/1 to the complainant and the same does not bears her signature. Further the accused also stated that the complainant has taken the cheque in question from her by fraud. In her statement CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 under section 313 of the code the accused again denied having taken any loan from the complainant and stated that complainant along with Rajiv Kumar had got an electricity meter installed at her house and for the same the complainant had taken her cheque book. It was also contended by the accused that the cheque in question Ex. CW1/1 does not bears her signature and the complainant had misused her cheque for filing the present complaint case.
13 To corroborate her stand the accused has examined three witnesses in her defence. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony (drawee bank), DW2 Dr. Amulya Bharat and DW3 handwriting expert Deepak Jain. It is not the case of the accused that the cheque in question Ex. CW1/1 is not drawn on the account maintained by her. The accused has simpliciter denied her signature's on the same. Now coming to the aspect whether the cheque in question Ex. CW1/1 bears the signature of the accused. It is trite to say that an essential feature of a cheque is that it has to be signed by the maker. The accused has denied her signature on the cheque in question Ex. CW1/1 at both the stages under section 251 of the code and also in her statement under section 313 of the code. It is pertinent to note that the cheque in question Ex. CW1/1 is drawn on State Bank of India and the same was deposited in the Janta Cooperative Bank in the account of the complainant. It is also pertinent to note that the cheque in question Ex. CW1/1 is dishonored vide cheque returning memo Ex. CW1/2 due to "insufficient funds". It is interesting to see that the cheque in question Ex. CW1/1 bounced not on account of the fact that the signature on cheque in question Ex. CW1/1 was not tallying with the specimen signature of the accused kept with the bank, but on account of 'insufficient funds'. Had the signature on cheque in question Ex. CW1/1 been different, the bank would have returned the same with the remark that the signature on the cheque in question Ex. CW1/1 was not tallying with the accused specimen signature's kept with the bank. The Cheque returning memo Ex.
CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13CW1/2 issued by the bank clearly show that signature of the accused on cheque in question Ex. CW1/1 was not objected to by the bank, but the same was returned with the remark "insufficient fund". In the case of denial of signature of the drawer of a cheque, the best witness would be the concerned Bank Manager. It is interesting to see that the accused has also examined the official of his bank (drawee bank) as DW1. Now coming to the evidence of DW1 Kailash Chopra, Deputy Manager, SBI Bank i.e. the accused bank (drawee bank). DW1 has placed on record the statement of account of the accused as Ex. DW1/1 and has also placed on record the copy of the account opening form of the accused as Ex. DW1/2. The witness has also placed on record the photocopy of the cheque obtained for clearance from CTS as Ex. DW1/3. Perusal of the account opening form Ex. DW1/2 shows that the account on which the cheque in question Ex. CW1/1 is drawn is in the joint name of the accused Geeta Devi and her husband Ashok Kumar. Surprisingly, DW1 has not placed the complete account opening form of the accused on record and only one page is placed on record. Further DW1 in his evidence has nowhere deposed about the fact that the cheque in question Ex. CW1/1 does not bears the signature of the accused or the signatures on the cheque in question Ex. CW1/1 do not tally with the signature of the accused available with the bank in records maintained by it. Furthermore, the witness has also not placed the specimen signatures of the accused on record obtained by the bank from the accused at the time of opening the account. DW1 simpliciter has tendered the statement of the account of the accused, copy of the cheque obtained through CTS and account opening form of the accused. Further to corroborate her stand that the cheque in question Ex. CW1/1 do not bears her signature the accused has also examined handwriting expert Deepak Jain as DW3. The said witness has placed his report Ex. DW3/A and enlarged photographs of admitted and specimen signatures as Ex. DW3/B (Colly.). Surprisingly on perusal of the report Ex. DW3/A it is revealed that the handwriting expert DW3 has come to the conclusion that due to difference in CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13 script of the disputed signatures and the admitted signatures the opinion is not possible. It is quite surprising to see that there no plausible explanation given by handwriting expert DW3 as what prevented him from taking the signature of accused in hindi script so as to compare it with the alleged denied signature on the cheque in question. Therefore it is evident and apparently clear that the testimonies of DW1 and DW3 have not at all supported the stand of the accused that the cheque in question Ex. CW1/1 do not bears her signature. Therefore in view of my discussion it stands proved that the signature on cheque in question Ex. CW1/1 are that of the accused.
14 During course of arguments Ld counsel also argued that the particulars in the cheque in question Ex. CW1/1 have also not been filled by the accused. It is also trite to say that once the signature on the cheque in question is proved to be that of the accused as has happened in the case in hand the plea of the accused that particulars in the cheque in question Ex. CW1/1 has also not been filled by her are of no consequence as there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself, as no law provides that in case of cheque the entire body has to be written by the drawer only.
15 Now coming to the evidence of DW2 Dr. Amulya Bharat, the said witness has deposed before the court about the medical condition of one Ashok Kumar who is the husband of the accused. The witness has stated about the fact that husband of the accused is under treatment as he is suffering from Paranoid Schizophrenia. The evidence of the said witness is not at all relevant in the present proceedings as the cheque in question Ex. CW1/1 is neither issued by the husband of the accused nor the same bears his signatures. Furthermore, it is not the case of the complainant that the loan amount was given to the husband of the accused or the cheque in question Ex. CW1/1 has been issued by him.
CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/1316 Therefore it is apparent that all the defence witnesses have not at all supported the claim of the accused. Further the accused has not even examined herself as a defence witness to corroborate her stand. Furthermore the accused have not even examined the said Rajiv Kumar in whose presence the complainant allegedly has taken her cheque book. Apart from the aforesaid vague and flawed defence, the accused has not lead any cogent evidence to corroborate her stand. It is trite to say that mere denial on the part of the accused would not absolve her from any liability. It was for the accused to prove the circumstances under which the cheque in question Ex. CW1/1 has come in the possession of the complainant by leading cogent evidence so as to discharge and rebut the presumption raised against her by the Statute U/s 139 and 118 (a) of the NI Act and mere simplicitor denying the allegations would not be at her advantage. Further merely putting suggestions to the complainant's witness and giving explanations in the statement U/s 313 of the Code without leading any defence to corroborate the same would also not be sufficient to discharge the burden of presumptions casted upon the accused by virtue of provisions of Section 118 (a) and 139 of the NI Act. There is no presumption of law that the explanations given by the accused are truthful. Mere pleading non guilty at the stage of notice U/s 251 of the Code or explanation given in statement U/s 313 of the Code or suggestions put to the complainant in cross examination does not amount to rebuttle of the presumption U/s 139 of the NI Act.
17 The accused has not brought any material on record and also no cogent explanations or any probable defence which would re but the shadow of presumption existing in favour of the Complainant. This court do not find any force in the arguments advanced by the learned counsel for the accused that the accused has succeeded in re butting the presumption under Section 139 of the Act.
CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/1318 From the materials brought on record and evidence lead by the parties it stands duly proved that the accused has failed to rebut the presumptions U/s 118 (a) and section 139 of the NI Act. Therefore, I hereby hold that the Complainant has proved and substantiated its allegations that the cheque in question Ex. CW1/1 was issued by the accused in discharge of her legal liability and for consideration. Fur thermore, it also stands proved that no payment has been made by the accused to the complainant within 15 days from the receipt of the le gal demand notice.
19 In view of the aforesaid discussion, I hereby hold that the complainant has proved and substantiated its allegation against the accused and all the ingredients of Section 138 of NI Act also stands proved. Accordingly, accused Geeta Rani W/o Sh. Ashok Kumar, is hereby convicted of the offence U/s 138 of NI Act.
This Judgment contains 13 pages and every Page of this judgment has been signed by me.
Announced in the open Court (RAVINDER SINGH II)
Dated 23.08.2014 MM (NI Act 07)
Dwarka/New Delhi
CC No. 5051/14 Om Parkash Bhardwaj Vs. Geeta Rani Page No. 13/13