Delhi District Court
Dharam Pal vs Vijay Pal on 11 January, 2012
IN THE COURT OF SH. DHEERAJ MITTAL: M.M-02 (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Dharam Pal vs Vijay Pal
CC No.1931/1/2010
U/s 138 Negotiable Instruments Act, 1881
1. Serial Number of the : 1931/1/2010
case
2. Name of the complainant : Dharam Pal
S/o sh.Jai Singh
R/o 426, V.P.O. Maitraon,
New Delhi-110 043
3. Name of the accused : Vijay Pal
parentage & residential S/o late Sh.Itwari Lal
address R/o 23/1-C, DIZ Area, Gol Market,
New Delhi
4. Offence complained of : U/s 138 Negotiable Instruments
or proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial.
6. Final order : Acquitted
7. Date of order : 11.01.2012
Date of Institution : 06.07.2010
Date of Reserving Order : 06.01.2012
Date of Pronouncement of Order: 11.01.2012
JUDGMENT
Brief facts of the case and reasons for decision are: -
1. This is a complaint filed u/s 138 read with Section 142 of the Negotiable Instruments Act 1881 (hereinafter referred to as N.I. Act).Dharam Pal vs Vijay Pal Page 1 of 12
2. The facts of the case as per the complainant are:
That the complainant lent a friendly loan of Rs.6,00,000/- in cash to the accused for a short term as the accused was in financial need. Thereafter to discharge his legal liability, accused issued a cheque bearing No.639511 dated 24.05.2010 for Rs.3,00,000/- drawn on Bank of India, New Delhi (i.e. cheque in question), but when the complainant presented the cheque for encashment in the bank, the same was returned unpaid with remarks "funds Insufficient". After the dishonourment of the cheque, complainant issued a legal notice dated 09.06.2010 to the accused through courier and demanded money but when the accused did not pay the amount the complainant filed the present complaint case.
3. After being satisfied that prima facie case against the accused u/s Section 138 N.I.Act is made out, cognizance was taken and accused was summoned for the offence u/s 138 N.I.Act vide summoning order dated 26.07.2010.
4. After the appearance of the accused, notice u/s 251 Cr.P.C was framed against the accused on 20.04.2011 to which he pleaded not guilty and claimed trial.
5. The complainant examined himself as CW-1 by adopting the affidavit dated 06.07.2010 Ex.CW1/1, which he tendered during pre summoning evidence and deposed on the same lines as in the complaint and exhibited the relevant documents as under:-
(i) Cheque bearing No.639511 dated 24.05.2010 amounting Rs.3,00,000/- (Rupees Three Lacs only) drawn on Bank of India, New Delhi as Ex.CW1/A. Dharam Pal vs Vijay Pal Page 2 of 12
(ii) Returning memo dated 25.05.2010 with remarks "Funds Insufficient" as Ex.CW1/B.
(iii) Legal demand notice dated 09.06.2010 as Ex.CW1/C. Courier dispatch receipt is Ex.CW1/D & Proof of delivery (POD) is Ex.CW1/E.
6. After his evidence (complainant/CW-1), complainant closed his evidence and thereafter on 16.09.2011 statement of accused was recorded u/s 313 Cr.P.C. where all the incriminating evidence was put to him. In that statement accused did not deny the signatures on the cheque but submitted that other contents of the cheque were not filled by him and he had taken no loan of any kind from the complainant. He further submitted that complainant took some blank signed cheques and some blank papers signed from him to arrange a loan for him but thereafter complainant did not arrange any loan for him and misused one of those cheques and filed this false case against him. The accused further submitted that at that time complainant also took a blank signed cheque of his wife.
After recording of statement of the accused u/s 313 Cr.P.C., the matter was fixed for defence evidence as accused wanted to lead evidence in his defence. The accused examined only himself as DW-1 in his defence and thereafter closed his evidence.
7. I have heard arguments from both the counsels and perused the record. Before deciding the present complaint case, lets consider the important legal provisions. For fastening liability u/s 138 Negotiable Instruments Act following are the requirements: -
Dharam Pal vs Vijay Pal Page 3 of 12(a) Drawing of the cheque by the person on the account maintained by him.
(b) Drawer of the cheque issued the cheque to discharge in whole or in part,any legal enforceable debt or other liability.
(c) The cheque issued has been returned unpaid due to insufficiency of funds or exceeds the arranged amount.
(d) The drawer fails to make payment within stipulated time after the receipt of demand notice.
Further Section 118 Clause (a) of Negotiable Instruments Act provides for presumptions regarding the consideration for the Negotiable Instruments. It reads as under: -
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as under: -
"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, or any debt or other liability."
The combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has Dharam Pal vs Vijay Pal Page 4 of 12 received the same for discharge in whole or in part of any debt or other liability. However, it is settled principle of law that the presumption available u/s 139 Negotiable Instruments Act can be rebutted by the accused by raising a probable defence but the burden of proof is on the accused.
8. It is settled law once the signatures on the cheque in question are admitted by the accused, the burden comes to the accused to rebut the presumption that cheque was not issued towards any liability. It is important to note here the observations made by the Supreme Court in the judgment "Rangappa vs S.Mohan AIR 2010 SC 1898" decided on 07.05.2010 wherein the Apex court has described the standard of proof on the accused to rebut the presumptions raised against him under the N.I.Act. The relevant para of the judgment is reproduced as under: -
".... it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Similar observations have been made by the Apex Court in the following judgments: -
(a) "M.S. Narayana Menon vs State of Kerala" (2006) 6 SCC 39.Dharam Pal vs Vijay Pal Page 5 of 12
(b) "M/s Kumar Exports vs M/s Sharma Carpets" AIR 2009 SC 1518.
(c) "Kamla S. vs Vidyadharan M.J. & Anr." (2007) 5 SCC 264.
(d) "K.Prakashan vs P.K. Surenderan" (2008) 1 SCC 258.
9. Now coming back to the facts of the present case, the accused has not denied the signatures on the cheque in question, therefore, the burden is on the accused to rebut the presumption that the cheque was not issued in discharge of any legally enforceable debt or liability.
It is very important to note here the judgment of Delhi High Court in case of "M/s Pine Product Industries & Anr. vs M/s R.P. Gupta & Sons & Anr. AIR 2007 (NOC) 1987 (Del.)"
decided on 06.12.2006, which says that if the complaint itself is vague about the nature of liability in discharge of which the cheque was issued and no details as to the transaction have been mentioned, the complaint is liable to the quashed. The relevant paras of the judgment are reproduced as under: -
".... complaint itself vague about the nature of liability in discharge of which the cheques were issued - No details as to how the amount in question was arrived at
-Order on conviction, set aside.....
6. The learned counsel for the petitioner submitted that the above paragraph is the only statement contained in the complaint with regard to the alleged liability of the petitioner. He submitted that no details whatsoever have been indicated as to what the liabilities were, what were the "amounts" for which the said cheque was issued for part payments, on which dates the amounts were taken Dharam Pal vs Vijay Pal Page 6 of 12 by the petitioner. Nor were the exact "amounts" taken by the petitioner mentioned. In other words, the learned counsel for the petitioner submitted, the complaint was completely vague and bereft of any details....
....The presumption has to be rebutted in the course of the trial and once rebutted the onus would shift on the complainant to establish and prove beyond reasonable doubt that the cheque was, in fact, issued for the discharge, in whole or in part, of any debt or other liability....
...there is no mention in the complaint as to when the "amounts" were or amount was paid. What was the rate of interest, what was the extent of the goods which were supplied and adjusted against the payment. Further more, in the testimony of PW1, it is not indicated as to when the said advance of Rs.5 lakhs was made, on which date the goods were received, what was the rate of interest. From which date the interest was to be computed and how was the figure of Rs.2.96 lakhs representing the principal amount computed. Nor is there any computation of the interest element of the difference between Rs.3.15 lakhs and Rs.2.96 lakhs indicated. All these details are conspicuously absent. The petitioner has been convicted and sentenced on the vague and bland allegation that cheque of Rs.3,15,000/- had been issued by the petitioner in discharge of liabilities of repayments of amounts taken by him. This is the only statement contained in the complaint and no further details are forthcoming even in the evidence led by the complainant."Dharam Pal vs Vijay Pal Page 7 of 12
10. In the present case, lets see whether accused has succeeded or not in rebutting the presumption u/s 139 N.I.Act.
10.1 It is very important to note that the complaint as well as evidence of the complainant which he led by way of affidavit Ex.CW1/1 is very vague and do not contain the necessary particulars of the alleged transaction. Complainant has nowhere mention in his complaint as well as his affidavit that on which date or month the loan was granted to the accused. Very interestingly even the year in which the alleged loan was granted has not been mentioned. From the record of the case file it is clear that the accused is a (government employee) sweeper at Akashwani Bhawan, Delhi, whereas complainant is working as Technician (government employee) in the Safdarjung Hospital, New Delhi. It has been alleged by the complainant that he gave a loan of Rs.6,00,000/- in cash to the accused. It is hard to believe that a person who earns Rs.17-18,000/- p.m. will give such a huge amount to a sweeper of the other department without executing a written document or without taking any security. It is to clarify that in his cross examination complainant admitted that his gross salary is Rs.17-18,000/- p.m. and after certain deductions he get Rs. 10,000/- p.m. 10.2. Neither in the complaint nor in the affidavit it has been mentioned that when the accused promised to repay the loan and when he handed over the cheque in question to the complainant. It is very interesting to note that the cheque in question is of Rs.3,00,000/- whereas the loan amount as alleged by the complainant was of Rs.6,00,000/-. I fail to Dharam Pal vs Vijay Pal Page 8 of 12 understand why a person would accept only a cheque of Rs. 3,00,000/- when the loan lent by that person is of Rs. 6,00,000/-. Even, if one goes through the para-2 of the complaint and para-4 of the affidavit Ex.CW1/1 he will find that even the word partial liability has not been used anywhere. For the sake of clarity the above said paras are reproduced here:
para-2 of the complaint "that the complainant is working in Safdarjung Hospital, New Delhi and due to the financial need the accused got a loan of Rs.6 lacs from the complainant for a short term period. Therefore, the complainant, due to the friendly relation with the accused, gave the above said loan amount in cash.
Para-4 of the affidavit "that the accused issued a cheque bearing No.639511 dated 24.05.2010 for sum of Rs.3 lacs drawn on Bank of India, Parliament Street, New Delhi, from account No.44300 in favour of the deponent in discharge of his legal liability. Copy of cheque is Ex.CW1/A."
10.3. A careful perusal of the cross examination of the complainant/CW-1 brings out certain facts which create doubts about the alleged loan being granted to the accused. In his cross examination complainant first time mentioned that loan of Rs.6,00,000/- was given to the accused in February 2010 at the house of the accused in presence of one Kailash Ram who is a technician in the operation theater in the Safdarjung Hospital, Delhi. Further The complainant first time mentioned in his cross examination that the cheque in question was Dharam Pal vs Vijay Pal Page 9 of 12 handed over to him by the accused after a week when the loan was granted and at that time accused told to put the cheque in the bank in the month of May 2010 for encashment. I fail to understand why the complainant did not examine Sh.Kailash Ram in his evidence in support of his averments when loan was granted in his presence. The examination of the Kailash Ram would have lent a great help to the complainant to prove his case but as noted above, the complainant failed to do so.
10.4. In cross examination the complainant admitted that he had not talked with the accused after the bouncing of the cheque whereas he has written in para-5 of his affidavit that he informed the accused about the bouncing of the cheque.
10.5. A bare look on the legal notice Ex.CW1/C purportedly sent by the counsel for the accused to the accused reveals that in para-2 of the legal notice it has been averred that one cheque was issued by the accused and another cheque of Rs.
3,00,000/- was issued by the wife of the accused. But neither the complainant nor in the affidavit Ex.CW1/1 there is no mention of the cheque issued by the wife of the accused. The para 2 of the legal notice is reproduced here: -
"That you issued a cheque bearing No.639511 dated 24.05.2010 for sum of Rs.3 lacs drawn on Bank of India, Parliament Street, New Delhi, from account No.44300 and another cheque which was issued by your wife cheque no. 483512 dated 24.05.2010 for sum of Rs.3,00,000/- drawn on Bank of India, Parliament Street, New Delhi from the account No.46853 in favour of my client in discharge of your legal liability."Dharam Pal vs Vijay Pal Page 10 of 12
10.6. A careful look on the returning memo Ex.CW1/B placed on record by the complainant makes it clear that there is mention of two cheques amounting of Rs.3,00,000/- which got bounced, out of which one cheque is cheque in question but complainant has no where mentioned or explained about the other cheque which was the cheque purportedly issued by the wife of the accused because that is the same cheque for which mention has been made in the legal notice Ex.CW1/C. 10.7. Furthermore, in his cross examination complainant/ CW-1 said that when the cheque was handed over by the accused it was already signed and other contents already filled by the accused. But a look at the cheque in question would reveal that the signatures as well as the account number have been filled in one ink, whereas other particulars of the cheque have been filled in some other ink. In normal course, it cannot be accepted that if a person would fill all the contents of the cheque he will fill the same by using two inks. From these facts, it may be inferred that the signature as well as account number have been filled by the one person and other contents were filled by the some other person.
10.8. In the whole case the complainant has nowhere clarified that when the loan was of Rs.6,00,000/- and the cheque in question was of Rs.3,00,000/- then what the accused said about the payment of remaining three lakhs.
The above said facts, raises a doubt about the allegations made by the complainant and go in favour of the accused.
Dharam Pal vs Vijay Pal Page 11 of 1211. As noted above, accused examined himself as DW-1 and corroborated stand taken by him in his defence spelled out in the notice u/s 251 Cr.P.C. as well as u/s 313 Cr.P.C. The witness was cross examined by the counsel for the complainant but the witness remained consistent in his deposition and no material contradictions could be found in his evidence favouring the complainant.
12. It is settled proposition of law that once the accused succeeds in rebutting the presumptions raised against him, the burden shifts to the complainant to prove that the cheque was issued in discharge of any legally enforceable debt or liability. But in this case the complainant has miserably failed to prove that the cheque was issued in discharge of any legally enforceable debt or liability.
13. Thus, in view of the above discussions, I am of the considered view that accused has succeeded to rebut the presumption and on the other hand complainant failed to establish that the cheque was issued for a legally enforceable debt or liability. Hence accused is entitled to acquittal, therefore, acquitted of offence u/s 138 N.I.Act. Bail bonds cancelled. Surety is discharged. File be consigned to record room after necessary formalities.
Pronounced in the open court (Dheeraj Mittal) on 11.01.2012 M.M.(N.I. Act)-02:SED: Saket Courts: New Delhi Dharam Pal vs Vijay Pal Page 12 of 12