Delhi District Court
Girwar Singh vs . Anil Sharma 1/9 on 17 April, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. 02404R0563332008
CC No. 388/1/08
Sh. Girwar Singh
S/o Sh. Late Sh. Laxman Prasad
R/o A21, Defence Colony,
Opposite D.L.F. Colony, Sahibabad,
District Ghaziabad, U.P. ............Complainant
V/s
Sh. Anil Sharma
S/o Sh. Surender Sharma
R/o Plot No. B1/147, G2,
D.L.F., Dilshad Extn.II,
Sahibabad, District Ghaziabad, U.P.
Also At
Village & PostRewa, Near Balani,
District Meerut, U.P. ...............Accused
JUDGMENT
(1)Name of complainant Sh. Girwar Singh
and address S/o Sh. Late Sh. Laxman Prasad
R/o A21, Defence Colony,
Opposite D.L.F. Colony,
Sahibabad, District Ghaziabad,
U.P.
(2) Name of accused, Sh. Anil Sharma
parentage and address S/o Sh. Surender Sharma
R/o Plot No. B1/147, G2,
D.L.F., Dilshad Extn.II,
Sahibabad, District Ghaziabad,
U.P.
Also At
Village & PostRewa, Near
Balani, District Meerut, U.P.
Girwar Singh Vs. Anil Sharma 1/9
(3) Offence complained of or proved: Under Section 138 Negotiable
Instrument Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 19.09.2008
(6) Date of reserve of order: 09.04.2013
(7) Final order: Conviction
8) Date of Final Order 17.04.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
The present complaint is filed Under Section 138 of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act').
Brief facts of the complaint are that accused is well known to the complainant and has good family relation with the complainant and on account of these relations, accused borrowed a friendly loan of Rs. 1,50,000/ from the complainant for the period of one year. After expiry of one year, the complainant requested the accused to return the loan amount, then accused asked some more time and also issued a postdated cheque bearing no. 634078 dated 07.06.08 of Rs. 1,50,000/ drawn on Indian Bank, Janakpuri, New Delhi, in the satisfaction of the above said loan amount in favour of the complainant. When complainant presented the said cheque for encashment, the same was dishonored with the remarks "Funds Insufficient" vide cheque return memo dated 23.08.2008. Then complainant immediately informed the accused about the dishonoring of the said cheque but accused has failed to make the payment after repeated requests and demands. Thereafter complainant under these circumstances sent a legal notice dated 28.08.2008 to the accused for demanding cheque amount, despite that accused did not pay the cheque amount and finally, complainant has filed the present complaint with the submission that accused be summoned, trial and Girwar Singh Vs. Anil Sharma 2/9 punished according to law.
In his pre summoning evidence complainant has examined himself on affidavit. Complainant reiterated the contents of his complaint and placed on record original cheque bearing no. 634078 dated 07.06.08 amounting to Rs. 1,50,000/, drawn on Indian Bank, New Delhi as Ex.CW1/1, Bank Passbook copy as Ex.CW1/A, original cheque returning memo dated 23.08.2008 as Ex.CW1/2, wherein it has been stated that cheque in question was dishonoured due to "Funds Insufficient", legal demand notice dated 28.08.2008 as Ex.CW1/3, postal receipts & UPC as Ex.CW1/4, Ex.CW1/5 & Ex.CW1/6 respectively, A.D. Cards as Ex.CW1/7 & Ex.CW1/8.
Thereafter, accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which the accused pleaded not guilty and claimed trial. Accused has stated in his notice that:
"I do not plead guilty and claim trial since there is no liability towards the complainant. However, the cheque bears my signatures".
Complainant has led his post notice evidence and examined himself on affidavit Ex.CW1 and relied upon documents from Ex.CW1/1 to Ex. CW1/14. Thereafter, his cross examination was conducted. Accused could not demolish the stand of the complainant in his cross examination.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Girwar Singh Vs. Anil Sharma 3/9 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. 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) therein 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. Presumptions both under Sections 118
(a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a Girwar Singh Vs. Anil Sharma 4/9 presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating circumstances were put to the accused wherein Girwar Singh Vs. Anil Sharma 5/9 accused has stated that he never took loan from the complainant and never issued the present cheque to the complainant. He stated that the cheque in question was given by him to one Vijay for the processing of a loan and no loan was provided to him and the cheques were not returned for which he lodged a complaint with the police.
Accused has examined only himself in his defence as DW1. He has placed on record the certified copy of the complaint U/S 156 (3) Cr.P.C. as Ex.DW1/1, certified copy of the order passed against the above said complaint as Ex.DW1/2 and copy of the Revision order as Ex. DW1/3.
Accused did not examine any other witness in his defence evidence. Hence, DE was closed.
Oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
Written submission has also been filed by Ld. counsel for accused as well as Ld. counsel for complainant.
Ld. counsel for complainant has relied upon the Judgments given below:
1. Hiten P. Dalal Vs. Bratindranath Banerjee
2. V.S. Yadav Vs. Reena
3. D. Vinod Shivappa Vs. Nanda Belliappa Ld. counsel for accused has also relied upon the Judgments given below:
1. Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Pyarelal
2. Krishna Janardhan Bhat V.s Dattatya G. Hegde All the judgments perused.
Ld. counsel for complainant has submitted in his arguments that Girwar Singh Vs. Anil Sharma 6/9 complainant has given a loan of Rs. 1.5 lacs to the accused. Accused has taken defence that he has given the cheque in question to one Mr. Vijay but said Mr. Vijay is a fictitious person. Accused has stated that complainant is stranger to him but the fact is that the both, the complainant and accused are living in the same colony. After summons have been issued by this court against the accused, he has filed a complaint U/S 156 (3) against the said Vijay and complainant Girwar Singh, which was dismissed. It is also admitted by accused that he has received the legal notice and replied the same.
Ld. counsel for accused has argued that accused has filed a complaint in PS Kavi Nagar even before presentment of cheque on 20.07.2007 and thereafter accused has filed a complaint U/S 156 (3) Cr.P.C. against the Vijay and present complainant but when the same was dismissed, he has filed a Revision against the impugned order.
Ld. counsel for complainant has rebutted the arguments tendered on behalf of accused by submitting that complaint dated 20.07.2007 is a fake document. Said Mr. Vijay was not called by the accused in his defence and he was also not traceable in the complaint U/S 156 (3) Cr.P.C.
Heard. Entire record perused.
Accused has taken the only defence that he has given the ten cheques to one Sh. Vijay for getting the loan from ICICI bank but he did not take any steps for approval of loan. In this regard he has filed a complaint against the said person namely Vijay in the PS Kavi Nagar, Ghaziabad but he has not filed on record the copy of the said complaint which shows that the same is concocted story. He has also stated in his examination as DW1 that he has filed a case U/s 156(3) Cr.P.C. against the said Vijay and the complainant Sh. Girwar Singh, but the same was dismissed on the ground that accused has lodged a complaint before police on 20.07.07 but he has not mentioned any action he had taken after 20.07.07. And Girwar Singh Vs. Anil Sharma 7/9 when the accused on 21.03.10 received the warrant from Rohini Court then only he realised to file an application U/S 156(3) Cr.P.C.
Accused has admitted his signature on the cheque and he has also admitted the fact that complainant is known to him as accused was living in the vicinity of the colony in which his brother was having a milk shop.
Accused has also admitted his signature on the cheque in question in notice U/S 251 Cr.P.C. Reference has been made to Judgment of Apex Court in Rangappa vs Sri 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. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act".
After perusal of entire record and in view of the above, this court of the considered opinion that the accused has not rebutted the presumption in favour of complainant. Therefore, complainant has proved his case beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved Girwar Singh Vs. Anil Sharma 8/9 beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
As complainant has proved its case beyond reasonable doubt, therefore, accused is being covicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
Announced in the open court (SHEFALI BARNALA TANDON) today on 17.04.2013 MM / ROHINI COURTS / DELHI Girwar Singh Vs. Anil Sharma 9/9
IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
Unique ID No. 02404R0563332008 CC No. 388/1/08 Sh. Girwar Singh Vs. Anil Sharma U/s. 138 Negotiable Instrument Act 18.04.13 ORDER ON SENTENCE Present: Complainant with Ld. counsel Sh. M.M. Swaroop.
Convict with Ld. counsel Sh. Sunil Kumar Bhadoria.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is having family consisting of two children and old age parents and he is sole bread earner in his family. Convict is first time offender, therefore lenient view may be taken.
Ld. Counsel for complainant has submitted that complainant is a retired pensioner and a senior citizen. It has been further submitted that the complainant has given this loan amount out of his provident fund and he has been defrauded by the convict. The matter pertains to the year 2008 and relates to loan transaction of Rs. 1,50,000/ , therefore maximum punishment be awarded.
I have heard the submissions and carefully perused the record. Complainant regarding present cheques in question is pending since 2008 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2008 and cheque bouncing cases are on high rises in the society. Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs. 2,50,000/ (Rs. Two Lakh Fifty Thousand Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for Girwar Singh Vs. Anil Sharma 10/9 a period of 3 months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 25,000/ with surety of like amount. Requisite bail bond furnished and accepted till 18.05.13.
Copy of this order be given to the accused free of cost.
Bail bonds be put up on 18.05.2013.
File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon) court on 18.04.13 MM (N/W)/Rohini Courts, Delhi. Girwar Singh Vs. Anil Sharma 11/9