Delhi District Court
Rakesh Kumar Sharma vs . Dhananjay Kumar Tiwari Cc No. 21015/17 ... on 3 November, 2018
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-029578-2017
CC No. 21015/17
Rakesh Kumar Sharma
S/o Sh. Parkash Chand Sharma
RZ D-148, Dashrath Puri,
Dabri Palam Road,
New Delhi - 110045
............Complainant
Versus
Dhananjay Kumar Tiwari
S/o Sh. Vashisht Tiwari,
R/o Janta Flat No. 81, Third Floor,
Pocket-7, Nasirpur, Dwarka,
New Delhi
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 09.10.2017
(4) Date of conclusion of arguments: 20.10.2018
(5) Date of Final Order : 03.11.2018
(6) Final Order : Convicted
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JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that in 01.10.2016, he advanced friendly loan of an amount of Rs. 4,30,000/- to the accused for a period of nine months. After expiry of period of nine months i.e. in July, 2017, accused issued two post dated cheques i.e. one cheque bearing No. 470186 dated 11.09.2017 for Rs.3,00,000/- drawn on SBI, Janakpuri, Delhi and another cheque i.e. cheque No. 003486 (cheque in question) dated 11.08.2017 for Rs.1,30,000/- drawn on ICICI Bank, Lajpat Nagar, Delhi to complainant in satisfaction of loan, with an assurance of their encashment. After due date of cheque in question, the complainant presented the cheque in his account maintained at IDBI Bank, Vijay Enclave, Palam Dabri, Delhi which was returned with the remarks "Funds Insufficient"
vide bank return memo dated 14.08.2017. Thereafter, complainant served a legal notice dated 04.09.2017 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/7. He reiterated the contents of complaint and placed on record, original cheque i.e. cheque No. 003486 dated 11.08.2017 (cheque in question) for Rs.1,30,000/- drawn on ICICI Bank, Lajpat Nagar, Delhi as Ex. CW-1/1, cheque returning memo dated 14.08.2017 as Ex. CW-1/2, legal demand notice dated 04.09.2017 as Ex. CW-1/3, receipts of speed post as Ex. CW-1/4 and tracking reports as Ex.CW1/5 and complaint as Ex.CW1/6.
Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 2 of 10
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 04.07.2018 to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheque in question and also stated that all the remaining details in the cheque have also been filled by him. He denied taking any loan from complainant and stated that he had approached complainant in December, 2016 for loan of Rs.1,00,000/-. He also stated that he gave cheque in question as fully filled up cheque towards repayment of loan alongwith interest. However, the loan was not advanced to him and cheque was also not returned to him. Thereafter, again he had discussion with complainant and gave another cheque of Rs.3,00,000/- to him for loan to be advanced by the complainant. However, again the loan was not advanced and cheque not returned by the complainant. He admitted receipt of legal notice.
5. The accused moved an application to cross-examine the complainant. Complainant as CW-1 was duly cross examined by the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused stated that he had taken loan of Rs.1,00,000/- from the complainant in December, 2016. Cheque in question was given as security cheque towards repayment of loan alongwith interest, to complainant. He stated that he had otherwise repaid full amount of loan to the complainant. However, the cheque was not returned to him. He accepted receipt of legal demand notice.
6. Accused preferred to lead evidence in his defence and had examined himself as DW-1. The witness was cross-examined by counsel for complainant. The accused did not examine any other witness and vide his statement, defence evidence was closed.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 3 of 10 counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque as well as filling the details of the same, in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that accused never gave reply to the legal demand notice. He also argued that as per version of accused, the loan taken from the complainant had been repaid by him, however, accused did not produce any proof of said repayment. He also argued that accused never filed a complaint against the complainant for misuse of the cheque in question. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, on behalf of accused, Ld. Counsel reiterated the submissions made by accused in his plea of defence at the time of framing of notice under Section 251 Cr.P.C and in his statement under Section 313 Cr.P.C. that the amount of Rs. 1 lacs of loan was taken by him from complainant was returned to him alongwith interest. He further argued that cheque in question given as security cheque was misused by the complainant. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 4 of 10 accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 5 of 10 cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question as well as filling in all the details, in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C and also in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 6 of 10 carry out a scrutiny of the evidence led at the trial.
14. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him after he had advanced loan of Rs. 4,30,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
15. It is the principle defence of accused as brought from his testimony as DW-1, that he had taken loan of Rs.1,00,000/- only from the complainant in December, 2016. It is his defence that cheque in question was given by him to complainant after filling in all the details except the date, as security for repayment of loan alongwith interest i.e. total of Rs.1,30,000/-. It is also his defence that he repaid principle amount of loan of Rs.1,00,000/- alongwith interest of Rs.15,000/- to complainant in cash. However, the cheque was not returned to him and misused by the complainant.
16. However, perusal of evidence reveals that this version of accused is not supported by any material on record. In his cross examination, accused admitted that he did not have any receipt regarding alleged cash repayment of Rs.1,15,000/- to the complainant. Moreover, in cross-examination of complainant, nothing could be elicited to cast doubt on his version or on credibility of the witness. Therefore the defence of repayment of loan is totally unsubstantiated by any evidence, and not credible.
17. Accused also admitted in his cross-examination, that he had not filed any complaint against complainant till date for misuse of cheque in question nor did he give any written intimation or letter to the complainant for non returning of his cheque. Also the cheque in question has been dishonored vide cheque returning memo dated 15.06.2015 for reason "Insufficient Funds" '(Ex. CW-1/2) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned to the accused even after repayment in cash, stop payment instructions were not issued by accused to bank. Also the accused in answer to Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 7 of 10 notice u/s 251 Cr.P.C. admitted to filling in all the details, in the cheque in question. In light of above, this court is of the view that simple averment of misuse of the cheque is not a credible defence.
18. It is also pertinent to note that the defence taken by the accused in answer to notice U/s 251 Cr.P.C was that the loans of Rs.1,00,000/- and Rs. 3,00,000/- were never advanced to him by the complainant and only the fully filled up cheques for repayment given in advance were misused. Even this version of accused does not seem credible as no reasonably prudent person would give cheques for repayment of loan which is yet to be advanced. In the ordinary course of human conduct, a person would issue a cheque for repayment only after or contemporaneous to the actual advance of loan to him.
Moreover, during trial, accused took a different stand that loan of Rs.1,00,000/- was actually advanced to him by the complainant which was repaid by accused in cash. Both the pleas are inconsistent and raise doubt as to credibility of version of accused.
19. Even otherwise, if for the sake of argument, it is considered that the accused gave a signed cheque, without writing the date, to the complainant, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that some of the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 8 of 10 "no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
20. The accused has also admitted in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C that legal demand notice under section 138 of the Act was received by him.
Therefore, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
21. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
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22. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
23. Let the convict be heard on quantum of sentence.
24. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date: 2018.11.03
15:07:32 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 03rd NOVEMBER 2018 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Rakesh Kumar Sharma Vs. Dhananjay Kumar Tiwari CC No. 21015/17 Page no. 10 of 10