Delhi District Court
Cc No.6159/10 Good Worth Securities(P) ... vs . Dharam Dutt Page No. 1 Of Pages 14 on 16 October, 2012
CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 1 of Pages 14
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 6159/10
Unique ID No. 02402R089852005
PS. Anand Vihar
M/s Goodworth Securities Pvt Ltd
Through Its AR,
Mr. Jagdish Anand,
S/o Late Sh. Sant Ram Anand,
Having office at UGF, 3, 13/14,
Punjabi Bagh (West),
New Delhi26 ......... Complainant.
Versus
Sh. Dharam Dutt,
S/o Sh. Ram Krishan,
R/o Village & Post Kaimala,
Tehsil Gharaunda,
District Karnal (Haryana) ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 20.11.2004
Plea of Accused : Not guilty
Complaint filed on : 16.12.2004
Final Arguments heard & Concluded on : 19.09.2012
Date of decision of the case : 16.10.2012
Final order : Acquitted
CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 2 of Pages 14
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant M/s Goodworth Securities Pvt Ltd through Its AR, Mr. Jagdish Anand, against the accused Dharam Dutt.
2. The facts in brief necessary for the disposal of the present case are that, complainant company is interalia engaged in the business of financing vehicles to general public through various agents. The accused was appointed as agent for Haryana and started financing the vehicles to the general public. Thereafter the accused committed serious branches and committed fraud and cheating with the complainant company as the accused collected huge amounts from borrowers but did not deposit the same with the complainant company. On settlement of accounts in the year 2001, it was found that the accused had embezzled a sum of Rs.17,00,000/(seventy lacs). On that the complainant company asked the accused to pay the said amount of Rs. 17,00,000/ or face the legal consequences. The accused requested the complainant company to not to initiate any any legal action against him and promised to pay the entire dues of the complainant company. The accused offered his property at Gharaunda and represented the same was valued at Rs. 17,00,000/(seventy lacs). Accordingly, requisite GPA / documents etc were executed based on representation of the CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 3 of Pages 14 accused regarding value of the property and also the same was free from any encumbrances. It is also promised by the accused that in case the property is sold at a lesser price, he shall indemnify the complainant company for short fall. The complainant company tried to transfer the said property to realize its money, but the complainant got surprised to know that the said property was mortgaged with bank. The complainant company contacted the accused and apprised him of his misrepresentation and fraud. The accused again requested the complainant company to accommodate him and was able to convince the complainant company to not to initiate any action against him. The accused further requested the complainant company to finance him a sum of Rs.2,70,000/ so that the documents of the said property could be released from the bank. Subsequently, the complainant company issued a draft no. 536389 dated 18.10.2001 for a sum of Rs.2,52,675/ drawn on Oriental Bank of Commerce, Gharaunda in favour of the accused to enable him to clear the dues of the bank. The complainant company further advanced a sum of Rs.17,325/ to the accused by way of cash to meet other expenses for release of said documents. Therefore the complainant company had advances the accused a total sum of Rs.2,70,000/ for the release of the said documents. Towards the repayment of the above mentioned sum of Rs.2,70,000/, the accused issued a cheque bearing no. 758711 dated 05.10.2004 for the sum of Rs. 2,70,000/ drawn on Oriental Bank of Commerce, Kirti Nagar, New Delhi branch to CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 4 of Pages 14 the complainant but on presentation the said cheque was returned back dishonored with the remark "DRAWER'S SIGNATUE DIFFER" & "INSUFFICIENT FUNDS" vide dishonour memos Ex. CW1/4. Thereafter a legal notice dated 03.11.2004 was sent to the accused on 04.11.2004 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. was framed upon the accused to which he pleaded not guilty and submitted that the cheque in question does not bear his signature.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited copy of board resolution as Ex. CW1/1, special Power of Attorney as Ex. CW1/2, original cheque bearing No.758711 as Ex. CW1/3, the cheque returning memo is Ex. CW1/4, the legal notice of demand dated 03.11.2004 is exhibited as Ex. CW1/5, UPC as Ex. CW1/6, the original receipts of registered post is Ex. CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 5 of Pages 14 CW1/7 & returned AD card as Ex. CW1/8. Thereafter, the complainant evidence was closed at request.
5. After that the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that though he was an agent of the complainant company and was responsible for collecting money from the borrowers and to deposit the same with the complainant company. However he had not done any breach / fraud with the complainant company. It is also submitted by him that he had executed a GPA of his property at Gharonda in favour of the complainant company but the same was free from any encumbrances as he had paid the loan amount to the bank and gave due property documents to the complainant at the time of execution of GPA. It is further submitted by him that the bank draft no. 536389 of Rs.2,52,675 was given to him for the payment of the commission and he had not received any sum of Rs.17,325/ in cash from the complainant company. It is further submitted by him that he never issued the cheque in question to the complainant, further cheque in question does not bear his signature. It is submitted by him that it was the policy of the complainant company to take a blank unsigned cheque books from the agent at the time of creation of agency, and as such he had also gave a cheque book to the complainant. It is also apprehended by him that the cheque in question may be from CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 6 of Pages 14 that cheque book. It is also submitted by him that he also got four vehicles financed in his name from the company and for that he also gave blank signed cheques to the complainant company towards EMI. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1. He has also exhibited a notice sent by him to the complainant on 25.08.2004 as Ex. DW1/D, postal slip of the same as Ex. CW1/E. He had also filed statement prepared by Goodworth Securities accepted by the accused as Mark. DW1/C, copy of a demand draft issued in favour of the complainant by him as Ex. DW1/H. Reply of the legal notice of the complainant is Mark DW1/E, copy of the AD card of the same as Mark DW1/G & Mark. DW1/F and the document issued by AR of the complainant Mr. Jagdish Anand as Mark. DW1/B. No other witness was examined. A report was sought by the Court from FSL, Rohini, which was submitted before it and per se admitted in evidence U/s 293 of Cr. PC. Thereafter the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 7 of Pages 14 him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
WHETHER THE CHEQUE WAS ISSUED OR NOT:
9. CW1 has stated in his examine in chief that cheque in question was issued by the accused. However in his statement U/s 251 Cr. PC, U/s 313 Cr.P.C & U/s 315 Cr. PC the accused denied that the cheque in question bears his signature. The CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 8 of Pages 14 dishonor memo also shows that the cheque was dishonored due to drawer's signature differ and insufficient funds.
10. Thus even prior to filling the present case it was in the knowledge of the complainant that one of the reason for dishonor of the cheque is that the drawer's signature were different and infact on 16.09.2006 when notice U/s 251 Cr. PC was framed the accused had submitted that cheque in question does not bear his signature despite that during entire complainant evidence and thereafter at the time of recording statement of accused U/s 313 Cr. PC and defence evidence complainant has not taken any steps to prove that cheque in question bears accused's signature. It's only after completion of defence evidence when the matter was fixed for final arguments an application was moved on behalf of the complainant to get the disputed signature on the cheque to be compared with the admitted signature of the accused. In the interest of justice said application was allowed and disputed and admitted signatures of the accused were sent to the FSL, Rohini.
11. Report was filed by Dr. Virender Singh after examining the documents U/s 293 Cr. PC, the report accepted by both the parties, hence taken on record and became part of the evidence. In the report it is opined by the handwriting expert that:
" On comparison of questioned signature marked Q1 with the admitted signatures marked A1 to A3, similarities are observed in formation of some of the characters such as CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 9 of Pages 14 formation of initial letter 'D', nature of its vertical staff, retrace of stroke at foot of its vertical staff while forming its curved body part in continuous pen operation, angularity at middle of its body part, nature of its terminal part and manner of joining it with the subsequent letter appearing as 'I': nature of elongated loop at its vertical body part; formation of subsequent characters in the form of loops of a spring as observed in questioned signature similarly observed in admitted signatures. But all the characters as occurring in questioned signature could not be similarly account for form the available admitted signatures, as such it has not been possible to express a definite opinion on red enclosed signature stamped and marked Q1 in comparison with the red enclosed signatures similarly stamped and marked A1 to A3.
However, further attempt can be made if some specimen and admitted signatures of similar model of the person concerned are supplied to this laboratory for examination.
12. Thus even after getting the report from FSL, Rohini it can not be definitely and conclusively held that the signature on the cheque are of the accused. Further no application was moved on behalf of the complainant for getting some specimen signature of the accused of similar model as the alleged signature on the cheque. Further even as per the case of the complainant the cheque was issued prior to 05.10.2004 i.e. 08 years ago, thus there was apprehension that getting specimen today would not CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 10 of Pages 14 be beneficial.
13. On the basis of above stated discussion and report from FSL, Rohini it can not be said that signature on the cheque was made by the accused only. Thus complainant failed to prove signature of the accused on the cheque in question beyond shadow of reasonable doubt further it is very well established principle of Criminal Jurisprudence that whenever there are two views possible the one favouring the accused has to be accepted. Thus it is not proved whether the cheuqe in question was issued by the accused or not. Hence the case is liable to be dismissed on this issue itself.
14. Further the following facts also shows untruthfulness of the complainant's case:
i) It is submitted by the complainant that accused in his capacity as agent of the complainant had committed fraud and embezzled a sum of Rs.17,00,000/ and thereafter in fear of legal consequences executed a GPA of his property in favour of the employee of the complainant Mr. Jagdish Anand. However the same Mr. Jagdish Anand in his cross examination had submitted that at the time of final settlement with the accused the complainant had to take approximately an amount of Rs.
16,00,000/ from the market. It is also accepted by him that the complainant had entered into an agreement with the accused that the accused will collect the payment from the Market and would transfer his property in lieu of the outstanding loan CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 11 of Pages 14 amount in favour of the complainant company. Thus there is material contradictions as in chief it was submitted that the property was transferred as accused had committed fraud, while as per cross examination of complainant witness the property was transferred against the right given to the accused to collect outstanding amount from the Market.
ii) It is the case of the complainant that the sum of Rs. 2,70,000/ was given to the accused to pay the same to the bank to discharge the property from mortgage. However it is further submitted that the sum of Rs.2,70,000/ was paid by way of a draft amounting to Rs.2,52,675/ and by way of cash a sum of Rs.17,325/ was also paid. The accused accepted the receipt of an amount of Rs.2,52,675/ by way of DD as commission, being agent of the complainant, but submitted that he has not received the cash amount of Rs.17,325/. It is not explained on behalf of the complainant as to why they had not given entire sum of Rs. 2,70,000/ by way of draft. Thus the version of the complainant became unreliable.
iii) Admittedly the payment of Rs.2,52,675/ was made vide DD dated 18.10.2001. The GPA of property was also executed in the year 2001 only but the cheque in question is dated 05.10.2004. It is also on record that in the year 2001 the complainant had severed their ties with the accused then why they waited till 2004 for the repayment and why they did not charged any interest on the amount of Rs.2,70,000/ for three years despite the fact that they only had business relations with CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 12 of Pages 14 the accused and were infact unhappy with him.
iv) It is submitted by the accused that on 25.08.2004 he had sent a letter through his Counsel to the complainant company and its directors which is Ex. DW1/1 (postal receipts of the same are also collectively exhibited with it), wherein it was stated by him that the complainant had not got opened a bank account at Gharonda thereby the accused could not collect the money from clients hence the complainant had cheated him. It was also apprehended by the accused that complainant might file case U/s 138 NI Act against the clients of the complainant. It is submitted on behalf of the accused that consequent to this letter as a counter blast the complainant had presented the cheque in question to the banker on 06.10.2004 after forging the signature of the accused on the same. Further the complainant has no where mentioned the date on which this cheque was received by the complainant. It is also accepted that the date and other particular on the cheque were filled up by the AR of the complainant Mr. Jagdish Anand. Since the letter was sent one and half month prior to the date of the cheque thus the defence of the accused, that the cheque was already with the complainant and only after his letter they misused the same appears to be reliable.
15. The Ld. Defence counsel has heavily relied on a judgment of Hon'ble Supreme Court cited as Kumar Exports V. Sharma Carpets (2009) 2 SCC 513 wherein it was held:
To rebut the statutory presumptions an CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 13 of Pages 14 accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated....
...Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant....
16. On the basis of above stated discussion and case laws the accused has proved his defence before the Court. Considering the entire evidence on record, it stands duly proved that the CC No.6159/10 Good Worth Securities(P) Ltd Vs. Dharam Dutt page no. 14 of Pages 14 cheque in question which is CW1/3 was not issued by the accused and he was not liable to pay the sum of Rs.2,70,000/ to the complainant. Accordingly accused Dharam Dutt, S/o Sh. Ram Krishan, R/o Village & Post Kaimala, Tehsil Gharaunda, District Karnal (Haryana) stands acquitted of the offence u/s 138 Negotiable Instruments Act in respect of cheque bearing no. Announced in the open court today i.e. 16.10.2012 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.10.2012 Containing 14 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.10.2012