Delhi District Court
Page No. 1 Of 7 Balwinder Singh vs . Sanjay Manchanda on 27 October, 2018
1
IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS: SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 52821/16
b. Date of the commission of the offence : 06.04.2013
c. Name of the Complainant : Balwinder Singh Arora
d. Name of Accused and his parentage: Sanjay Manchanda
and residence S/o Sh. V.K. Manchanda
R/o 6/255, Geeta Colony,
Delhi110031.
e. Offence complained of : Dishonouring of cheque for
the reason "Kindly Contact
Draweer".
f. Plea of the Accused and his examination (if any): Not guilty
because blank signed security
cheque were given and he had
already repaid the due amount to
the complainant
g. Final Order : Held guilty.
Convicted.
h. Order reserved on : 29.09.2018
i. Order pronounced on : 27.10.2018
Page No. 1 of 7 Balwinder Singh Vs. Sanjay Manchanda
2
Brief reasons for decision:
1. Briefly stated, the relevant facts of the case of the complainant as reflected
in his complaint are that the accused had approached him for a friendly loan of Rs. 1.5
lacs in February, 2012 for one year and he had given a sum of Rs. 1.4 lacs to the accused
on 02.02.2012. It is also the case of the complainant that accused had issued a post dated
cheque in question bearing no. 431200 dated 04.03.2013 for sum of Rs. 1,40,000/
Ex.CW1/1 drawn on Canara Bank, Shankar Nagar, Delhi towards discharge of said loan
liability in favour of the complainant. Said cheque in question was dishonoured on its
presentation vide cheque return memo Ex.CW1/2 dt. 08.03.2013 with remark "Kindly
Contact Drawer / Drawee Bank". Thereafter, the complainant had sent a legal demand
notice dt. 16.03.2013 Ex. CW1/3 through his counsel and accused failed to pay the
demanded cheque amount within stipulated time after receiving said demand notice.
Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of
the Negotiable Instruments Act, 1881 (in short NI Act) on 27.04.2013.
2. Notice of accusation u/s 251 Cr.P.C. was served upon the accused on
13.08.2014 and plea of defence of accused was recorded on same day. The complainant
himself examined and crossexamined as sole complainant's witness for proving his
version of the story. Statement of accused u/s 313 Cr.P.C. was also recorded on
18.11.2017 wherein accused did not prefer to lead any defence evidence in present case.
Lastly, Ld. Counsels for both the parties had made respective final oral submissions.
3. In T. Vasanthakumar vs. Vijayakumari (Crl. Appeal No. 728 of 2015), the
Hon'ble Apex Court of the land, while dealing with presumptions u/s 139 of NI Act,
observed as under:
"There has been some controversy before us with respect to Section
139 of Negotiable Instruments Act as to whether complainant has to
prove existence of a legally enforceable debt before the presumption
Page No. 2 of 7 Balwinder Singh Vs. Sanjay Manchanda
3
under Section 139 of the Negotiable Instruments Act starts operating
and burden shifts to the accused. Section 139 reads as follows:
"139. Presumption in favour of the 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."
9. This Court has held in its three judge bench judgment in Rangappa
v. Sri Mohan (2010) 11 SCC 441:
"The presumption mandated by Section 139
includes a presumption that there exists a legally
enforceable debt or liability. 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 respondent complainant."
10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability.
4. Keeping in view of above mentioned settled legal proposition and peculiarity of hypertechnical offence u/s 138 of NI Act and legislative intent behind the same to curb the menace of dishonouring of cheques by unscrupulous drawer for smooth functioning of business activities, the court has to appreciate the material on the record. In instant case the accused admits his signature on his dishonoured cheque in question and taking of loan of Rs. 30,000/ from his admitted friend and complainant of the case (as referred to plea of defence of accused dated 13.08.2014). In these circumstances, the presumption u/s 139 of NI Act would operate against the accused, who has to rebut the same by leading cogent and reliable evidence or by exposing material contradiction in the Page No. 3 of 7 Balwinder Singh Vs. Sanjay Manchanda 4 case of complainant amounting to reasonable doubt by way of crossexamination of complainant.
5. Ld. Counsel for accused contended that the accused had given two blank security cheques to the complainant as he had taken a friendly loan of Rs. 30,000/ from the complainant. He further contended that the complainant had misused blank signed security cheque of accused by filing present case. Ld. Defence counsel also submitted that complainant has been engaged in illegal match fixing and he has not approached the court clean hand. He further submits that complainant had voluntarily accepted in his crossexamination that the accused had told him to return the loan in question after one month unlike his claim in his complaint as to loan in question was given for a period of one year.
On the other hand, Ld. Counsel for complainant submitted that accused already admitted signing and giving cheque in question to the complainant and also some friendly loan transaction with the complainant. He further argued that accused had not led any defence evidence to prove his claim as to he has taken a friendly loan of Rs. 30,000/ only and same has already been repaid to the complainant. Accordingly, Ld. Counsel for the complainant claimed that accused could not rebut the legal presumption of consideration qua cheque in question arose u/s 139 of NI Act.
6. During crossexamination, complainant (CW1) stated that he was doing the business of sales and purchase of properties and both parties of this case were residing in Geeta Colony. CW1 also stated that accused and he had visiting terms at each other homes on regular basis. CW1 further stated that he had paid Rs. 1,30,000/ at about 12:30 PM and Rs. 10,000/ in cash in evening of given date which he could not recall, although, accused had demanded Rs. 1.5 lacs from him in December, 2012 or 2013. CW1 deposed that accused had given duly filled cheque in question to him at the time loan transaction in question. CW1 denied suggestion of accused as to he had advanced a loan of Rs.
Page No. 4 of 7 Balwinder Singh Vs. Sanjay Manchanda 5 30,000/ to the accused on interest @ 20% per month.
7. Accused pleaded that he had not filled the body of cheque in question and it was just blank signed cheque given to the complainant. Even blank cheque could be legitimately filled by the holder of the same and same can be presented for encashment. Hon'ble Delhi High Court in a case titled as Ravi Chopra vs State And Anr. dt. 13 March, 2008 observed as under: "18. Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder Page No. 5 of 7 Balwinder Singh Vs. Sanjay Manchanda 6 they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course".
8. Another plea of accused was that he had given security cheque in question to the complainant. However, even security cheque becomes enforcible once liability become due and quantifiable at the time of dishonoring of cheque even if it was not so at the time of handing over post dated or blank cheque to the complainant. Refrence may made to the Judgement of Hon'ble Delhi High Court in Suresh Chandra Vs. Amit Singhal Crl. L.P. No. 706/2014 dt. 14.05.2015.
9. Accused had not led any defence evidence for proving his claim as to he had already repaid his admitted loan of Rs. 30,000/ taken from the complainant, in respect of which blank security cheque was allegedly given to the complainant. Accused opted such course of action in course of trial of case at his own peril. Here, it is interesting to note that accused had admitted that the complainant was his friend and he had taken Rs. 30,000/ from the complainant and also he had given blank signed cheque in question to the complainant. In these circumstances, it can't be held that the complainant could not have advanced claimed friendly loan of Rs. 1.4 lacs as financial capacity of the complainant had not been sought to be impeach by the accused during his cross examination wherein he stated that he was doing the business of sale and purchase properties. In these circumstances, accused could not expose any material contradiction in the case of complainant during his crossexamination and accused had not lead any credible defence evidence for proving his defence plea.
Page No. 6 of 7 Balwinder Singh Vs. Sanjay Manchanda 7
10. In view of admitted friendly loan transaction of a particular amount, friendship and neighborhood between the parties, cheque in question being duly signed by the accused, accused preferring not to led any defence evidence for proving his version of the story or claim of repayment of admitted loan of Rs. 30,000/ and mandatory presumption of supportive consideration qua dishonoured cheque in question u/s 118/139 of NI Act and also aforesaid discussions of facts and law, this court is of considered view that accused has failed to rebut the legal presumption of legally enforceable debt or liability arose in favour of holder of cheque i.e. complainant of the case u/s 118/139 of NI Act. Accordingly, accused is convicted for the offence u/s 138 of the NI Act in the present complaint case.
RAKESH Digitally signed by RAKESH
KUMAR RAMPURI
KUMAR Location: Karkardooma
Courts, East District, Delhi
Date: 2018.10.27 16:53:28
RAMPURI +0100
Announced in the open court (RAKESH KUMAR RAMPURI)
on 27th Day of October, 2018. MM/KKD/Delhi
Page No. 7 of 7 Balwinder Singh Vs. Sanjay Manchanda