Delhi District Court
Sanjeev Saini vs . Rajender Kumar Saini on 22 January, 2010
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC /
GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW
DELHI
Sanjeev Saini Vs. Rajender Kumar Saini
CC NO.1471/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1471/1/09
(b) The date of the commission of the offence : 12.1.2005.
(c) The name of the complainant : Shri Sanjeev Saini Son of Late Shri Karan Saini R/o 99B, Masjid Moth, South Extension Part-II, New Delhi 110 049.
(d) The name of the accused persons, and his parentage & residential address : Rajinder Kumar Saini @ Inder Saini, S/o Shri Attar Singh Saini R/o 255A, Masjid Moth, South Extension, Part-
II, New Delhi.
(e) The offence complained of or proved : 138 of NI Act.
(f) The plea of the accused : Plead not guilty.
(g) The Final Order : Convicted.
(h) The date of order : 17.12.2009.
Sanjeev Saini Vs. Rajender Kumar Saini
CC NO.1472/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1472/1/09
(b) The date of the commission of the offence : 5.10.2005
(c) The name of the complainant : Shri Sanjeev Saini Son of Late Shri Karan Saini R/o 99B, Masjid Moth, South Extension Part-II, New Delhi 110 049.
(d) The name of the accused persons, and his parentage & residential address : Rajinder Kumar Saini @ Inder Saini, S/o Shri Attar Singh Saini R/o 255A, Masjid Moth, South Extension, Part-
II, New Delhi.
(e) The offence complained of or proved : 138 of NI Act.
(f) The plea of the accused : Plead not guilty. (g) The Final Order : Convicted. (h) The date of order : 17.12.2009.
By this common judgment, I shall dispose off both complaints i.e. one filed on 28.2.05 and another one filed on 1.12.2005 by complainant against accused Rajinder Kumar Saini.
Facts as borne out from the complaint No. 1471/1/09 are as follows:
1. The case set up by complainant is that accused had approached him in the month of April, 2004 for a friendly loan of R. 50,000/-. Accused in discharge of his liability towards the payment of said amount issued two cheques No. 742696 and no. 742698, dated 10.07.2004 and dated 10.01.2005 respectively, drawn on Central Bank of India, Gulmohar Park, which were returned unpaid on presentation by the drawer banks for "Funds Insufficient" vide return memos dated 12.01.2005. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 22.01.2005 to accused through registered A.D and UPC.
Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant has filed this complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. On 10.03.2005 the Court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused the Court summoned the accused for offence U/s 138 of the Act.
3. On 6.8.2005 accused appeared pursuant to the summons issued by the Court and was admitted to bail.
4. On 19.9.06 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
The facts of the case CC No. 1472/1/09 in brief are as follows:
1. A friendly loan of Rs. 1.5 lac was given to accused and in discharge of his liability towards the payment of said amount accused issued two post dated cheques No. 742700 and no. 742699, dated 10.07.2005 and dated 10.09.2005 respectively, drawn on Central Bank of India, Gulmohar Park, which were returned unpaid on presentation by the drawer banks for "Funds Insufficient" vide return memos dated 5.10.2005. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 28.10.2005 to accused through registered A.D and UPC.
Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant filed the second complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. On 5.6.2006 accused appeared pursuant to the summons issued by the Court and was admitted to bail. On 19.9.06 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the complainant examined himself as CW1 by way of affidavit Ex.CW1/Z.
4. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer her explanation.
5. In his examination U/s 313 Cr.P.C read with Section 281 CrPC, the accused has submitted that the cheques, forming basis of the initial complaint were issued by him as complainant was partner in "Jai Ambey Electronics" but These cheques were misused by complainant as these were not against any liability or against any friendly loan. He has admitted the issuance of all cheques, forming basis of both complaints and stated that these complaints are false as the cheques have been misused by complainant.
6. I have heard arguments of learned counsels for complainant and ld counsel for the defence and perused the relevant statutory provisions and evidence alongwith written arguments filed on record.
7. Learned counsel for complainant argued that accused is guilty of an offence as bouncing of the cheques issued by him carry a mandatory presumption in terms of Section 138 r/w Section 118 (a) of the Act. It is argued that accused has admitted the issuance of the cheques, which were dishonoured as "Funds insufficient" and despite issuance of notice, he did not pay the amount within the stipulated time without any cause nor he has come up with any plausible evidence, a presumption is to be drawn in favour of holder of the cheque. It is argued that complainant's case has to be accepted on account of admission in statement of accused recorded U/S 281 Cr.P.C. Learned counsel for complainant further argued that the said amount against the cheques were given as a friendly loan and a presumption U/S 138 of the act is raised in respect of the fact that accused had issued the cheques to satisfy the legally enforceable debt.
8. In his pursuit to knock down the edifice of the complainant case, defence has argued with vehemence that the accused and the complainant were partners and working together along with another partner namely Sh. Trilok Singh in a firm called " Jai Amba Electronics". It is argued that the said fact is evident by documents Ex. DW 1/1 to DW 1/91. It is argued that partnership firm stood dissolved vide an Agreement dt. 7.04.2007 and the Ex. DW 1/92, agreement of dissolution as per which accused was to pay Rs. 75,000/- in cash and gave 5 post dated cheques to both partners. It is argued that the accused paid a sum of Rs. 75,000/- to complainant in cash and issued 5 post dated cheques running from 742696 to 742700 against full and final settlement of his share in partnership deed and the said cheques are amongst these cheques which are not issued against any friendly loan, as alleged.
9. Before embarking upon the factual issue involved herein, let us consider the provisions of Section 138 of Act. The requirements are :
(1) there is a legally enforceable debt (2) the drawer of the cheque issued the cheque to satisfy the whole or the part of the debt (3) the cheque so issued has been returned due to insufficiency of funds.
14. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to grant the relief.
15. In order to judge the legal and factual merit of the defence contention, it would be relevant to refer to Section 118 & 149 of the Act. The provision Section 118 & 149 of the Act have been dealt the provisions of law deal within catena of judicial pronouncements.
16. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan ; AIR 1999 Supreme Court 3762; it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption.
17. In State of Madras Vs. A. Vaidyanatha Iyer: AIR 1958 SC 61; it was held that it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused".
18. In Hiten P. Dalal Vs. Bratindranath Banerjee; AIR 2001 Supreme Court 3897; Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/S 139 of the Negotiable Instruments Act. This section provides that "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." The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
19. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575.
20. Let us consider the evidence of the complainant. Complainant has examined himself as CW 1 vide affidavit Ex. CW 1/2. In his affidavit, the stand as taken in the complaint is reiterated. In his cross-examination, the witness said that a loan amount of Rs. 1.5 lacs and another amount in CC No. 1471/1/09 was given in cash and no receipt of this was obtained from the accused. The witness has denied existence of any partnership firm in the name of "Jai Amba Electronics". The witness has denied that any such firm existed or it consisted of three partners as alleged by defence. Similarly the dissolution of the said firm is also denied. It is denied that the cheques were issued by accused under coercion after beating the accused in his factory. It is denied that one M.P. Choudhary was witness to the dissolution of the firm. The witness submitted that subsequently, second amount was also given to accused on his promise to make payment in time. I have appraised the evidence. It is admitted that part payment of Rs. 20,000/-out of total amount was given to complainant, which itself establishes the liability of payment by accused. The witness has negated the suggestion of existence of any partnership firm. Witness has reaffirmed and reiterated his version.
21. The presumption under the Act is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact. The presumption has to be rebutted by proof and not by a statement or plausible explanation. In this regard, I have considered the evidence produced on record. Though for proving the defence, the accused himself is not required to step into the witness box but he may discharge his burden on the basis of materials already brought on record ( Krishna Janardhan Bhatt Vs. Datta Traya G. Hegde decided on 11.1.2008 by Hon'ble Apex Court.)
22. Accused has examined himself vide affidavit Ex. DW 1/1 and has proved the document Ex. DW 1/1 to Ex. DW 1/91. The legal notice dt. 22.1.2008 sent to DW 1 is exhibited as DW 1/92 and the photocopy of Agreement dt. 7.04.2007 is exhibited as "X". DW1 in his cross examination admits of no partnership deed, having filed on record. He states that it was an oral partnership deed. He states that no bank account in the name of said M/s Jai Amba Electronics was opened nor any Income Tax return has been filed in respect of any transactions carried by M/s Jai Amba. He states that in another case U/S 138 NI Act filed against him, by complainant Trilok Singh, the sentence against him has been suspended in which he is making regular payments.
23. Having considered the entire evidence on record, defence has failed to establish by probabilities that the cheques were given pursuant to the dissolution of any Partnership Firm. No document whatsoever has come up to show the existence of any such firm in the name of M/s Jai Amba. The documents filed by defence after perusal of the same are of no use. Similar is the position in respect of document Ex.DW1/92. Neither any Income Tax Return has been filed showing the transactions of the alleged firm nor the complainant being one of the partners has been established. It is proved that accused had issued the cheques against liability and against legally enforceable debt and the said cheques were dishonoured due to insufficiency of funds. From the settled legal principles as explained earlier, the presumption in Section 118 of the Act is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused has not adduced sufficient evidence showing the reasonable possibility of non existence of the Presumed Fact.
24. There is overwhelming evidence on record as referred above to infer the liability of accused. Defence has failed to canvass any good ground for giving the cheques in question to the complainant and thus cannot take shield under the armour of plea that complainant had misused the cheques which were given pursuant to the dissolution of firm and not against liability.
25. Having gone through the provisions of Section138 of the Act, it is clear that evidence U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues a cheque towards the discharge of a debt or liability as a whole or in part and the cheque is dishonoured by bank on presentation.
26. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/ S 138 N.I. Act. Let he be heard on the point of sentence on 22.12.2009 at 3.00 PM.
27. Copy of this judgment be also placed in connected CC No. 1472/1/09 (Announced in Open Court (MS. RAVINDER BEDI) on 17.12.2009) JSCC cum ASCJ cum Guardian Judge (South) IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI Sanjeev Saini Vs. Rajender Kumar Saini CC NO.1471/1/09 and 1472/1/09 U/s 138 N.I. Act 22.1.2010 2.30 PM ORDER ON SENTENCE Present: Complainant in person.
Convict in person with counsel.
1. I have heard convict and counsel for convict on the Point of Sentence.
2. It is submitted that the convict is suffering trial for the last 4 years. It is further submitted that the convict is a petty driver, operating as a Maruti Van driver and is earning salary of Rs. 75,00/-. it is argued that the convict has been convicted only once in another case against him in criminal court U/S 138 NI Act, which was got settled between parties at the stage of conviction. It is argued that convict has a large family to support and he is the only earning member of family. The convict has prayed that a lenient view be taken in the present matter.
3. Counsel for the complainant to the contrary argues that proceeding under NI Act against the accused are also pending before the Court of Shri Kuldeep Narain, Ld. ACJ and given the number of cases against convict, he does not deserve any leniency. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for one year and further to pay compensation of Rs. 50,000/- (consolidated in both matters), under the provisions of Cr.P.C in default, he shall suffer simple imprisonment of further three months.
5. It is ordered accordingly. File be consigned to record room.
(Announced in Open Court (MS. RAVINDER BEDI)
on 22.1.2010) JSCC cum ASCJ cum Guardian Judge
(South)
At this stage, an application for suspension of sentence is filed U/s 389 Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
Surety Rajesh Kumar is present.
Bail bond furnished. Accepted. The application is allowed subject to the order of Superior Court uptill 22.2.2010. On 22.2.2010 at 3.00 pm convict shall appear to face the sentence. Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI)
on 22.1.2010) JSCC cum ASCJ cum Guardian Judge
(South) 22.1.2010