Delhi District Court
Ajipal vs . Girraj on 27 September, 2018
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE - 02 :
SOUTH : SAKET COURT : NEW DELHI
AJIPAL VS. GIRRAJ
CC No. 102/18
U/s 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 102/18
(2) Name of the complainant : Ajipal
s/o Late Sh. Mangat Ram,
R/o H.No. 237, Village- Khanpur,
New Delhi-110062.
(3) Name of the accused, : Sh. Girraj
parentage & address s/o Sh. Santa Ram
R/o H.No. 296, Block-I-2nd,
Mandagir-II, Dr. Ambedkar
Nagar, New Delhi-62.
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction
(7) Date of Institution : 12.08.2010
(8) Date on which reserved for
judgment : 20.09.2018
(9) Date of Judgment : 27.09.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that on 01.05.2010, accused has taken friendly loan of Rs. 2,00,000/- by way of cash for a short period of one month and at the time of receiving the said loan of Rs. 2,00,000/- the accused had issued a cheque bearing no. 812292 dated 31.05.2010 for a sum of Rs. 2,00,000/-, drawn on State Bank of India, Dr. Ambedkar Nagar, Ajipal Vs. Girraj CC No. 102/18 Page 1 of 12 Sector-III, Madangir Branch, New Delhi in favour of the complainant, which on presentation the same was returned unpaid with the remarks "Account Inoperative/ dormant" vide returning memo dated 19.06.2010. Thereafter, complaint sent a legal notice dated 28.06.2010 by way of registered AD/ UPC upon the accused which was duly received by the accused and despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1 was filed by the complainant. In her affidavit of evidence ExCW1, the complainant reiterated all the averments made in his complaint and relied on documents are original cheque in question Ex. CW-1/1, its return memo Ex. CW-1/2, office copy of legal notice Ex. CW-1/3, postal receipt Ex. CW-1/4, receipt Ex. CW-1/5. The complaint is Ex. CW-1/6.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 15.02.2011.
3. Accused appeared in pursuant to issuance of NBW. Thereafter, during court proceedings on 15.10.2013, accused submitted that he is not mentally fit and he is suffering from paranoid schizophrenia and therefore, court conducted inquiry u/s 328 Cr. PC in order to ascertain whether accused lunatic or of unsound mind and is incapable of making his defence. Thereafter, vide order dated 13.03.2015 Court passed following order:-
"On the last date of hearing, medical board was directed to be constituted to examine the accused and give the opinion whether the accused is fit to stand the trial. In compliance of the direction of the Court, medical board was constituted at Safdarjung Hospital. Dr. Ajipal Vs. Girraj CC No. 102/18 Page 2 of 12 Pankaj Verma is one of the members of the medical board. As per the report, the accused has appeared for medical examination and examined by the board. It is further reported that on the basis of the history and detailed mental status examination, the accused is fit to stand the trial. I seek certain clarification from the Dr. Pankaj Verma and on clarification and considering the report of the accused, I am satisfied that the accused is medically fit to stand the trial and accordingly, I proceed with the trial.
Now, be put for framing of notice on 25.04.2015".
This order has not been challenged by the accused till date.
4. Thereafter, notice U/s 251 CrPC was served upon the accused vide order dated 15.11.2017 to which the accused pleaded not guilty and claimed trial. Accused stated that he had only taken Rs.24,500/- from the complainant and complainant asked him to sign some documents, thereafter complainant called him at his house in Khanpur, Delhi and he called 4-5 other persons and pressurized him to put signatures on the cheque in question and he had to issue the cheque in question under undue pressure and coercion because of threats forwarded by complainant and complainant filled the amount of Rs.2 lacs on his own but he has no liability to pay the cheque amount to the complainant. Accused stated that he became mentally unstable because of which he was taking treatment since last many years and he could not make appropriate complaint to the police against the complainant. He has no legal liability to pay the cheque amount to the complainant.
5. Thereafter, upon oral request of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 15.11.2017 and the accused was given an opportunity to cross examine the complainant and his witnesses.
The accused has failed to cross examined the complainant despite repeated opportunities being given and considering the fact that matter is pending Ajipal Vs. Girraj CC No. 102/18 Page 3 of 12 since year 2010 and complainant is a blind person, the opportunity of the accused to cross examine the complainant was closed vide order dated 23.03.2018. No other CW was produced by the complainant, therefore, CE was closed vide order dated 23.03.2018.
6. Thereafter, the plea of the accused Girraj S/o Sh. Santa Ram was recorded U/s 313 CrPC r/w 281 CrPC on 12.04.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that complainant called him at his house and said that he gives money on interest and he offered him to give money to which he agreed. Thereafter, complainant asked him to sign on blank cheques and on the insistence of complainant, he had given blank signed cheques to the complainant. The complainant said that he takes blank signed cheques from everyone and therefore, he asked him also to give blank signed cheques. Accused stated that complainant had given him only Rs24,500/- only out of which he had repaid Rs11,000/- to the complainant for which he has a receipt also. (The copy of receipt filed by accused is taken on record and is Mark X for the purpose of identification subject to proving of same by the accused). Initially he refused to sign on blank papers as complainant insisted that he had to give signatures and he shall fill the particulars and amount of Rs02 lacs. Accused stated that on his refusal, complainant along with 3-4 good persons had beaten him and asked him to put the sign by using abusive language and therefore, under undue pressure and coercion and threat, he had signed the papers. Accused stated that he thought to approach the police but he could not because his mental health got affected. Meanwhile, he hears voices in his ear but he can't recognize the voices. Accused further stated that he has already filed the documents on record of his Ajipal Vs. Girraj CC No. 102/18 Page 4 of 12 mental condition. He is innocent. He has no legal liability to pay the cheque amount to the complainant. He has not received the legal notice.
Accused further expressed his desire to lead defence evidence.
7. Thereafter, matter was listed for DE. Accused submits that he does not wish to lead any further DE. On separate statement of accused, DE was closed vide order dated 29.08.2018 and matter was fixed for final arguments.
8. Thereafter, at the stage of final arguments, an application 311 Cr. PC was moved on behalf of accused to cross examine the complainant which was dismissed vide order dated 20.09.2018.
9. Sh. Sunder Lal, Ld. Counsel for complainant and Sh. M.K. Mall, Legal Aid Counsel for accused have addressed oral arguments.
By way of oral arguments, Ld. Counsel for complainant has reiterated the facts stated in the complainant and it has further argued that the testimony of complainant has remained unrebutted as accused has failed to cross examine the complainant despite opportunities being given. Further, in the defence accused has only disputed the quantum of liability but accused has not led any DE to prove his defence. Thus, the accused has failed to prove his defence while the complainant has proved his case beyond reasonable doubts. Therefore, accused is liable to be convicted.
On the other hand, by way of oral arguments, Ld. Counsel for accused has reiterated the defence of accused stated to the notice u/s 251 Cr. PC and during the plea recorded u/s 313 Cr. PC r/w 281 Cr. PC. It has been further argued that admittedly no written agreement has been executed qua the cheque in question. However, it is improbable that any person would give loan of Rs. 02 lacs without Ajipal Vs. Girraj CC No. 102/18 Page 5 of 12 written agreement or receipt. Further, the accused had already produced the receipt whereby he had already repaid Rs. 11,000/- out of Rs. 24,500/- which was taken as loan from the complainant. The accused is not having fit mental state to pursue the matter properly and accused has not been given fair opportunities to cross examine the complainant. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while the story set up by the complainant is improbable, therefore, the accused is liable to be acquitted.
10. Arguments advanced by both parties heard. Case file perused meticulously.
11. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
12. In the case at hand, the issuance of the cheque in question and its dishonour are not in dispute. The defence raised by the accused is two fold. Firstly, the non receipt of legal notice dated 28.06.2010 Ex.CW1/3, secondly, the cheque in question was not issued against any consideration.
Now, this Court shall deal with the defences of the accused one by one.
13A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he has never Ajipal Vs. Girraj CC No. 102/18 Page 6 of 12 received the legal notice of demand dated 28.06.2010 Ex.CW1/3. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending of the legal notice of demand.
A2. The complainant has deposed that the legal notice of demand dated 28.06.2010 Ex.CW1/3 was sent to the accused on the correct address through registered post and UPC, the receipt of which are Ex.CW1/4 and Ex. CW-1/5. Thus, the legal notice has been served upon the accused.
A3. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A4. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along- with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A5. Further, accused has nowhere disputed the factum that the address Ajipal Vs. Girraj CC No. 102/18 Page 7 of 12 on which the legal notice was sent, is not correct address of the accused. Rather, the accused has filed copy of his election ID on which the same address has been mentioned on which legal notice was served and even in the bail bond furnished on 28.03.2013, same address has been mentioned. Thus, in view of the above discussion, this court holds that the legal notice dated 28.06.2010 Ex.CW1/3 was served on the accused.
13B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. As per complainant, accused has taken friendly loan of Rs. 2 lacs from the complainant and cheque in question was issued by the accused to discharge his legal liability and cheque got dishonoured on its presentation, hence, the present complaint.
B2. On the other hand, the defence of the accused is that he had taken amount of Rs. 24,500/- from the complainant and he had already repaid amount of Rs. 11,000/- qua receipt mark-X and complainant had taken signatures of the accused on blank papers and cheque in question and had also beaten the accused alongwith 04 to 05 persons. But the accused could not take appropriate legal action against complainant as his mental health got affected and he is taking treatment since last several years.
B3. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118(a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not Ajipal Vs. Girraj CC No. 102/18 Page 8 of 12 exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39). B4. In the present complaint, accused has not cross examined the complainant to prove his defence and thus, the testimony of complainant has remained unrebutted and unchallenged.
B5. Further, the accused has only disputed the quantum of liability and he has also admitted his signatures on the cheque in question, therefore, the burden of proof to prove his defence is upon the accused but accused has not led any evidence to prove his defence. As per accused, complainant alongwith 03 to 04 persons has beaten him and had taken signatures of the accused on blank papers and had also got the cheque in question under pressure but accused could not tell the exact date, month or year of the same and till date accused has not filed any complaint against the complainant. Moreover, the complainant in the present case is also a blind person and therefore, the accused is under obligation to prove that complainant had beaten him alongwith other 03 to 04 persons. But accused had not adduced any evidence to prove his defence. Even the receipt Mark-X has not been proved properly by the accused. Therefore, in absence of evidence, mere bald averments of the accused are not sufficient to rebut the presumptions raised against the accused.
B6. During final arguments, it has also been argued on behalf of the accused Ajipal Vs. Girraj CC No. 102/18 Page 9 of 12 that the complainant has not shown the said loan in his ITRs and therefore, the complainant has failed to prove his case. On the other hand, the complainant has relied upon the judgment of : Sheela Sharma vs Mahendra Pal 2016 Law Suit (Del) 4859 wherein it was held that non disclosure of loan advanced by complainant to the accused may attract penal provisions under the Income Tax Act but the same has no consequences on the proceedings of the complaint U/s 138 N I Act.
In view of the dictum of the above mentioned judgment of Hon'ble High Court of Delhi, the plea of the accused is not sustainable and the case of complainant cannot fail only on the ground that complainant has failed to reflect the loan advanced to accused in his ITR.
B7. As far as the defence of the accused regarding issuance of blank signed cheques as security is concerned, it is immaterial. The accused has admitted that he has signed the cheque in question.
No law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount Ajipal Vs. Girraj CC No. 102/18 Page 10 of 12 to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused had no legal liability on the date of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011) that there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him".
In the case in hand, it has been admitted by the accused that the cheque in question was issued by him. It is not the case of the accused that his signatures on the cheque in question are forged and fabricated. Thus, once the accused has admitted his signatures on the cheque in question, the fact that other details on the said cheques are not in his own handwriting become immaterial and not of much consequence. Moreover, no reason is coming forward why complainant would fill the amount of Rs. 2 lacs arbitrarily when he had opportunity to fill even the higher amount in the cheque.
14. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable Ajipal Vs. Girraj CC No. 102/18 Page 11 of 12 doubts. Resultantly, this court finds the accused Giriraj s/o Sh. Sant Ram guilty for the offence punishable U/s 138 N I Act. Hence, he stands convicted.
15. Let the arguments on quantum of sentence be heard on 29.10.2018. Copy of judgment be given dasti to the convict. Digitally signed by PRABH PRABH DEEP KAUR DEEP Announced in the open court KAUR Date:
2018.09.28 12:10:08 on 27.09.2018 +0530 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 12 pages and each page bears my signature.
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Ajipal Vs. Girraj CC No. 102/18
Page 12 of 12