Delhi District Court
Vipin Gupta vs Dinesh Kumar Mittal on 8 September, 2011
CC No. 573/A/2011
Vipin Gupta Vs Dinesh Kumar Mittal
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE
DISTRICT-NORTH, TIS HAZARI COURTS, DELHI
Vipin Gupta Date of institution of case : 01.12.2006
Versus Date of decision of case : 08.09.2011
Dinesh Kumar Mittal
Unique ID No. 02401R1081762006
CC.NO. 573/A/2011
P.S. Sarai Rohilla
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 26.10.2006
2. Name & address of the complainant : Vipin Gupta S/o Sh. Kewal Kishore R/o- C-114, Gali No.7, Sarai Rohilla, East Moti Bagh, Delhi-110007.
3. Name & address of the accused : Dinesh Kumar Mittal, S/o Sh. Ramesh Kumar Mittal R/o- 26/18, Shakti Nagar, New Delhi.
4. Offence complained of : U/s.138 of Negotiable Instruments Act
5. Plea of accused & examination if any: Pleaded not guilty.
Examination u/s. 313 Cr.PC Defence evidence led.
6. Final order : Convicted
7. Date of such order : 08.09.2011 1/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case under section 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant Sh. Vipin Gupta against the accused Sh. Dinesh Kumar Mittal.
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
The accused approached the complainant for friendly loan of Rs. 3,00,000/- ( Rupees Three Lakhs only) and on believing the accused's version the complainant gave a friendly loan amount of Rs. 3,00,000/- ( Three Lakhs only ) to accused in the month of March, 2006 who promised to pay it within 5 or 6 months.
When complainant asked the accused to pay the aforesaid amount of Rs. 3,00,000/- ( Rupees Three Lakhs only), in the month of September, 2006, the accused towards discharge of his admitted liability handed over two cheques bearing nos. 166672 and 166673 dated 11.09.2006 of Rs. 1,50,000/- ( Rupees One lakh Fifty thousand only ) each drawn on The Jammu and Kashmir Bank Ltd. C-42, Community Centre, Naraina, New Delhi to the complainant with the assurance for its encashment on presentation. 2/18
CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal However, on presentation of the same, both the cheques were dishonoured vide cheque returning memo dated 14.09.2006 and 15.09.2006 with remarks "Account closed". The complainant thereafter gave legal notice of demand dated 09.10.2006 to the accused which was sent by Registered post and UPC thereby calling upon the accused to make the payment of the cheques amount. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant filed the instant complaint for prosecution of the accused under section 138 of the Negotiable Instruments Act, 1881.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused vide order dated 01.12.2006 for the offence under section 138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice under section 251 of the Code of Criminal Procedure, 1973 dated 09.07.2007 was served upon the accused to which accused pleaded not guilty and claimed trial.
4. In order to prove the case, Sh. Vipin Gupta, complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence which is exhibited as Ex.CW1/A. He got original cheques exhibited before the court as CW1/1 and CW1/2 respectively. The cheque returning memos were exhibited as CW1/3 and CW1/4, 3/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal the legal demand notice dated 09.10.2006 was exhibited as CW1/5, postal receipts and registered AD envelope were exhibited as CW1/6, CW1/7 and CW1/8. Sh. Vipin Kumar Gupta, complainant was cross examined by learned counsel for the accused. Thereafter, the complainant evidence was closed at request.
5. The statement of accused was recorded under section 313 r/w 281 of the Code of Criminal Procedure, 1973 in which all the incriminating evidence alongwith exhibited documents were put to the accused Sh. Dinesh Kumar Mittal. The accused admitted that he signed the cheques exhibited as CW1/1 and CW1/2 but did not fill the same which were misplaced from somewhere. Accused further stated that he received the legal notice exhibited as CW1/5 and gave a reply to the same. Accused further brought a new version into picture stating that his mother got paralysed and he gave the signed blank cheques to his mother for emergency use. Accused stated that he used to keep cheque book at home and the cheques were misplaced from his home or car.
6. Upon recording of statement under section 313 r/w. 281 of the Code of Criminal Procedure, 1973, the accused moved an application under section 315 of the Code of Criminal Procedure, 1973 for getting himself examined as witness. The same was allowed on 11.05.2011. Accused filed an affidavit in his defence 4/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal evidence. Accused got himself examined as DW1 and was cross examined and discharged.
Defence Evidence was closed on the statement of accused. Thereafter, the case was fixed for final arguments.
7. Part arguments were heard on 29.06.2011. Written submissions were filed on behalf of the accused on 01.08.2011. When the final arguments were almost heard, accused moved an application under section 311 Code of Criminal Procedure, 1973 for re-examination of complainant on 27.08.2011 which was dismissed.
8. The court heard learned counsels and perused the entire record of the case file as well as evidence on record.
9. In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of. The main ingredient of Section 138 of the Negotiable Instruments Act, 1881 are as follows:
(a) The accused issued cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date 5/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal of the cheque or within the period of its validity.
(d) When the aforesaid cheques were presented for encashment, the same were returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881.
10. Now let us deal with the each ingredient of the section 138 of the Negotiable Instruments Act, 1881 to see whether the case against the accused has been proved or not.
(a) WHETHER THE CHEQUE WAS ISSUED OR NOT: Complainant deposed in Para-4 of affidavit that the accused handed over the cheques in question to him. In the cross examination, the complainant affirmed the issuance of cheque which is evident from the following extracts :- 6/18
CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal "The cheques in question CW1/1 & CW1/2 dated
11.09.2006 were already filled at the time when accused came. However, the cheques were already written when accused signed in my presence. I did not take a single cheque since accused brought two cheques. The cheques were issued by way of security to me, on the same day when I paid the cash amount to the accused ". To rebut issuance of cheques which is inferred from the uncontroverted version as above, the accused did not lead any cogent evidence except giving suggestions that cheques were never issued and the cheques have been misused fraudulently in collusion with Rakesh Gupta which have been denied by the complainant.
The accused came out with a new version in statement under section 313 of the Code of Criminal Procedure, 1973 that the cheques were misplaced but he does not know from where. Accused further improved his version stating that his mother got paralysed and he gave signed blank cheques to his mother for emergency use. He stated that he used to keep his cheque book at home. The cheques were misplaced from his house or car. This stand was nowhere put to the complainant during his cross examination and introduced for the first time in statement under section 313 of the Code of Criminal Procedure, 1973, thereby leading to the conclusion that aforestated version is an afterthought. 7/18
CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal In defence evidence, the accused cooked up a new story that his friend Rakesh Gupta, uncle of complainant, had stolen his cheques and the same cheques had been misused by the complainant in collusion with his uncle. The accused further stated that he issued instructions to his banker to stop the payment of cheques allegedly stolen by Rakesh Gupta. This story was never put to the complainant during his cross examination as a suggestion which indicates that it is an afterthought and a mere concoction. Moreover, the accused did not bring either his mother or his bankers in defence evidence to prove his aforesaid version for reasons best known to him which leads to the conclusion that the version of the accused is false.
The accused deposed in his examination that he lodged a complaint before the police and his banker after receiving the legal notice sent by the complainant. However, accused did not file any copy of complaint so lodged nor summoned any witness to prove this fact and admitted non filing of copy of the aforesaid complaint during his cross examination. The accused contradicted himself regarding the aforestated complaint by admitting in his cross examination that he did not lodge any complaint with police and even did not remember the date when the complaint was lodged. It is evident that the accused could not support his own version of loss of cheques either by way of leading cogent evidence nor did he support his own version during the cross examination.
Accused deposed that he sent reply to the legal notice issued by the complainant wherein whole of his defence regarding the cheque was mentioned 8/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal but the complainant did not deliberately file the said reply on record. However, the accused neither led any evidence to prove the sending of reply to the complainant nor brought his own copy on record despite the denial of receipt of the said reply by the complainant during the cross examination. So, a bald allegation that legal notice was duly replied not substantiated by any evidence does not have any probative force to probabalize the defence of the accused.
Ld. Counsel for accused argued that the complainant has taken contradictory stand regarding the issuance of cheques i.e. as per the affidavit and complaint the cheques were allegedly issued in September 2006 while in cross examination the complainant admitted that the cheques were given on the same date when the loan was advanced on 2nd or 3rd March, 2006. It is further argued that this contradiction creates a grave suspicion regarding the issuance of the cheques which probabalizes the defence of the accused and falsifies the issuance of cheques and advancement of alleged loan.
This court is of the view that the aforesaid contradiction is not fatal as the same relates to the date of issuance only and not to the factum of issuance which the accused failed to disprove as discussed above. So, being a minor contradiction, it does not affect the veracity of the complainant's claim of issuance of cheque and advancement of loan.
Furthermore, it is also admitted by the accused that the cheques have been signed by the accused. The fact that the cheques belong to the bank account maintained by the accused is also not disputed. 9/18
CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal In view of the aforesaid discussion and the evidence on record, it stands proved that the the accused issued cheques in question pertaining to his account bearing his signatures.
(b) WHETHER THE CHEQUE AND COMPLAINT WAS PRESENTED WITHIN THE PERIOD OF VALIDITY/LIMITATION : Perusal of the record reveals that the cheques in question exhibited as CW1/1 & CW1/2 dated 11.09.2006 got dishonoured vide cheque returning memos exhibited as CW1/3 & CW1/4 dated 14.09.2006 and 15.09.2006 and the same is not disputed by the accused.
Legal notice of demand was issued on 09.10.2006 which is within 30 days of 15.09.2006 i.e. the date of receipt of intimation of dishonor of cheques. The legal notice is deemed to be served within three days of dispatch on 11.10.2006 being addressed within Delhi and 15 days time given to accused as per statute expired on 25.10.2006. So, cause of action to file the present complaint arose on 26.10.2011 as per section 142 of Negotiable Instrument Act, 1881. Complaint as per the seal of the Additional Chief Metropolitan Magistrate office was filed on 22.11.2006. So, complaint has been filed well within one month of 26.10.2006, the date on which the cause of action arose and thus the same is within limitation period.
Accused did not challenge the aforesaid factual matrix affecting the limitation aspect even by giving a suggestion.
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CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal It clearly shows & proves that the cheques have been presented within the period of validity and complaint was filed within limitation period i.e. within six months from the date of issuance of the cheques
(c) DISHONOUR OF CHEQUES IN QUESTION: Sh. Vipin Gupta, complainant got the cheques returning memos exhibited as Ex.CW1/3 and Ex.CW1/4 respectively. The dishonor of the cheques in question has not been disputed by the accused nor the cheque returning memos have been challenged by the accused.
Hence, cheque returning memos and dishonour of cheques for reason mentioned in the memos have to be treated as proved under section 146 Negotiable Instruments Act, 1881. Moreover accused has done nothing to rebut the mandatory presumption of law arising in favour of complainant in this respect.
Therefore, considering the entire evidence on record, it stands duly proved that the cheques in question were dishonored vide cheque returning memos dated 14.09.2006 and 15.09.2006 which are Ex.CW1/3 & Ex.CW1/4 with the reason "Account closed".
(d) SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
Complainant deposed in his evidence by way of affidavit that the legal notice of demand dated 09.10.2006 exhibited as CW1/5 was dispatched to the accused on 09.10.2006 vide postal receipts and Regd. AD envelope. Receipts of 11/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal the same are exhibited as CW1/6, CW1/7 and CW1/8 respectively. Accused did not challenge the service of legal notice. Rather accused admitted the receipt of legal notice by deposing in his defence that he sent reply to the legal notice and also admitted the service of legal notice in his statement under section 313/281 of Criminal procedure code, 1973.
As facts admitted need not be proved, in view of the candid admission of the accused as to the receipt of legal notice it stands established that legal notice was duly served upon and received by the accused.
Furthermore, as discussed in point (a) above the accused failed to prove the issuance of reply to the legal notice allegedly sent by him. So, it can be said that the accused failed to respond to legal notice despite receiving the same. In view of Hon'ble Supreme Court judgment titled Rangappa Vs. S.Mohan arising out of SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010, not responding to legal notice amounts to admission of contents of legal notice. Accordingly, adverse inference has to be drawn against the accused.
(e) THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE: The complainant proved by para 7 & 8 of the affidavit that the accused did not pay the cheque amount within 15 days of alleged receipt of notice and the accused did nothing in evidence to negate the same. Further, the defence of the accused that the cheques in question were stolen and that no transaction as alleged by 12/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal the complainant ever took place are sufficient to infer that no occasion arose to make the payment as there was no liability.
Thus, it stands proved that the accused did not make the payment of the cheques within 15 days of the receipt of the legal notice.
(f) WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY : The complainant admitted in his cross examination that accused was his friend and that the accused visited his shop frequently thereby proving his friendly terms with the accused. To rebut the aforesaid relationship the accused gave mere suggestion that he is not the complainant's friend or the complainant does not know him which were both denied by the complainant. Ld. Counsel for the accused argued that the complainant admitted in his cross examination that he does not know the address of the accused and nor does he know the family of the accused which is unusual for a friend not to know and thus, falsifies the friendly loan theory of the complainant.
It is worth mentioning that the complainant though admitted the aforesaid facts but simultaneously stated that he knows the location of the accused's address at Shakti Nagar and also knows her mother. These facts have not been controverted by the accused even by way of giving the suggestion to negate the same and have thus gone unrebutted.
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CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal In these circumstances, it cannot be said that the complainant was not friendly with the accused as it is not necessary for a friend to know the exact address and to be familiar with the whole of the family members. So, this argument of Ld. Counsel for accused does not hold any water.
The complainant further admitted in his cross examination that accused took a friendly loan of Rs. 3 Lacs in March, 2006 which was paid in cash and the said advancement of loan was further substantiated by the admission of the complainant that loan was paid in notes of Rs. 100, 1000/- and 50/- denominations after arranging the same from the business. These admissions of complainant have not been challenged by the accused by leading any cogent evidence barring a suggestion that the alleged loan was not advanced which was denied. These admissions corroborate and are consistent with the version taken in complaint and affidavit which proves the factum of advancement of friendly loan. It is inferred from above that during the cross examination of the complainant instead of challenging the version of the complainant and proving his own defence, the accused got the version of the complainant affirmed.
In view of the aforesaid discussion & appraisal of evidence on record, it stands proved that the cheques in question were issued in discharge of payment of loan liability.
11. It is argued on behalf of accused that present complaint under section 138 of Negotiable Instrument Act is not maintainable as the complainant 14/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal admitted in cross examination that cheques has been issued as security and prosecution under section 138 NI Act fails in case of security cheques. Relevant extracts of cross examination are as follows:-
" The cheques were issued by way of security to me, on the same day when I paid the cash amount to the accused. It was assured by the accused to pay the aforesaid amount on due dates otherwise I was instructed to present the cheque for encashment. I visited the at the residence of the accused for the payment of the amount but all in vain and also called accused many times for payment. I visited the residence of the accused only once but I called him on many times."
From the aforesaid extracts it is apparent that cheques were allegedly issued on the same day either after or at the same time, the cash loan was paid by the complainant. It means that the debt or liability has come into existence before the cheque was allegedly issued. It is not the case where the debt or liability is yet to come into existence at the time of issuance of cheques. So, it cannot be said that the cheques were issued as security. The aforesaid interpretation is fortified by the observation of Hon'ble Delhi High Court in case titled M/s. Collage Culture & Ors. Vs. Apparel Export Promotion Council & 15/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal Anr. decided on 11.10.2007, in para 24, wherein the Hon'ble Delhi High Court following the observation made by the Hon'ble Supreme Court of India in case titled M.S. Narayana Menon @ Mani vs. State of Kerala & Anr., 2006 (6) SCC 39 as precedent observed as follows :
24. " It would be relevant to note that the statute does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due but payment postponed at a future date would attract Section 138 of the Negotiable Instruments Act 1881. But the cheque issued not for an existing due, but issued by way of a security, would not attract Section 138 of the Negotiable Instruments Act 1881, for it has not been issued for a debt which has come into in existence."
12. Further, the accused came out with a defence that he issued a letter to the bank instructing to stop the payment of the cheques in question after receiving the legal notice sent by the complainant. But the accused neither placed on record copy of the letter issued to the banker nor summoned any witness from the bank to affirm his version. It is worthwhile to mention the judgment titled M/s. M.M.T.C. Ltd. vs. M/s. Medchl Chemicals and Pharma (P) Ltd, AIR 2002 SC 182, wherein the Hon'ble Supreme Court held that:
"18. Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in (1998) 3 SCC 249. It has been 16/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. It is held that presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shown that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under1998 AIR SCW 842 : AIR 1998 SC 1057 : 1998 CriLJ 1397 SC187 Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a complaint on this ground."
From the mandate given in MMTC (Supra), it is clear that even in case of stop payment the court has to presume that the cheque was received by the holder for the discharge of liability. The accused may rebut this presumption and 17/18 CC No. 573/A/2011 Vipin Gupta Vs Dinesh Kumar Mittal show that "stop payment" instructions were not issued because of insufficiency or paucity of funds but because of other valid causes.
Even if the defence of the accused of issuing instructions to the bank to stop the payment is admitted to be true still the failure of the accused to prove on record the circumstances which constrained him to issue aforesaid instructions indicate that the accused is taking false pleas in his defence and version of the complainant is true.
13. In view of the aforesaid discussion, it is established that the accused could not rebut the case of the complainant either by raising a preponderance of probability or by way of leading cogent evidence. So, this court is of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instrument Act, 1881 have been duly proved on record.
Accordingly accused Sh. Dinesh Kumar Mittal S/o Sh. Ramesh Kumar Mittal stands convicted of the offence under section 138 Negotiable Instrument Act, 1881.
14. Let the convict be heard on the point of sentence.
Announced in the open ourt ( VIPLAV DABAS )
today i.e. 08.09.2011 Metropolitan Magistrate
North/Delhi/08.09.2011
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