Delhi District Court
Cheque". (Shreyas Agro Services Pvt Ltd vs Chandra Kumar S.B., Ii (2007) Bc on 22 July, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON METROPOLITAN
MAGISTRATE, ROHINI: DELHI
Unique ID No. 02404R0370022008
CC No. 136/1/08
M/s. Naveen Tyres
Through its Authorized Representative
Shri Karamveer Singh
Vill & PO Ladpur,
Delhi86 ............Complainant
V/s
Mr. Sunder
S/o Shri Chhote Lal
R/o H.No.1153, Vill & PO Bawana
Near Bawana Road,
Delhi39 ...............Accused
JUDGMENT
(1) Name of complainant M/s. Naveen Tyres
and address Through its Authorized
Representative
Shri Karamveer Singh
Vill & PO Ladpur,
Delhi86
(2) Name of accused, Sunder s/o Shri Chhote Lal
parentage and address R/o H.No.1153, VPO Bawana
Near Bawana Road,
Delhi 110 039
CC No.136/1/08 Naveen Tyres V. Sunder 1 of 12 pages
(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: 11.07.2008
(6) Case received by way of transfer on: 02.03.2013
(6) Date of reserve of order: 12.07.2013
(8) Final order: Conviction
(9) Date of Final Order 22.07.2013
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 complainant deals in the business of transportation and sells vehicles and its tyres to its customers in cash or on finance basis. Accused being known to complainant, approached him for a friendly loan of Rs.3,30,000/ for a period of one month as he was running short of money for business purposes. On request of accused, complainant lend him money and for securing loan, accused have him a postdated cheque bearing No. 610762 dated 11.5.2008 of Rs.3,27,000/ drawn on State Bank of India, Bawana, Delhi. On due date, complainant presented the aforesaid cheque but the same returned dishonoured with remarks "insufficient funds" vide returning memo dated 13.5.2008. The complainant got issued a legal notice dated 26.5.2008 by Regd. Post as well UPC wherein, the accused was called upon to remit the payment of CC No.136/1/08 Naveen Tyres V. Sunder 2 of 12 pages amount of the said cheque within 15 days from the receipt of the notice. Thereafter, complainant has filed the present complaint with the submission that accused be summoned, trial and punished according to law.
In the presummoning, complainant had tendered his evidence by way of affidavit Ex.CWX and also relied upon cheque bearing No.610762 dated 11.05.2008 as Ex.CW1/A, the said cheque was dishonoured vide cheque returning memo dated 13.5.2008 as Ex.CW1/B, legal notice dated 26.5.2008 as Ex.CW1/C, and the receipts of Regd. Ad as Ex.CW1/D, receipt of UPC as Ex.CW1/E and AD card as Ex.CW1/F. Thereafter, accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and on 15.2.2011, notice u/s 251 Cr.PC for this offence was served upon him to which the accused pleaded not guilty and claimed trial.
Thereafter, the matter was fixed for DE as per the guidelines laid down by the Hon'ble High Court of Delhi in case titled as Rajesh Aggarwal V. State & Anr. 2010, VIIAD, (Delhi), 576, the accused did not move any application u/s. 145(2) of N.I. Act despite several opportunities being given. Therefore, the matter was straight away fixed for DE but despite several opportunities accused did not bring any witness in his defence and vide order dated 3.10.2011, the defence evidence was closed and matter was fixed for final arguments. Accused challanged the said order and preferred the revision petition against the said order but the said revision petition was also dismissed and thereafter, accused preferred Criminal M.C No. 4326/12 and Crl. M.A. No. 20144/12, before the High Court and vide order dated 11.2.2013 passed by the High Court, the trial court was directed to give one more opportunity to the accused to examine himself as defence witness.
CC No.136/1/08 Naveen Tyres V. Sunder 3 of 12 pages Thereafter, on 15.2.2013, accused appeared himself as DW1 and deposed that he had been purchasing tyres from the complainant in cash since year 2007 and in the year 2008, when he was out of Delhi, he requested the complainant to give truck tyres to his employee but complainant refused to give the tyres on credit basis and asked for blank signed cheque as security for payment of tyres. In his absence, complainant gave one pair of tyres to his employee for Rs.24,000/ and when he came back, he paid the said amount and asked for his cheque but the complainant did not return it and kept the same for future transaction. DW1 further deposed that he stopped the further transaction with the complainant as market value of tyres was lesser than that of complainant and he asked for his cheque but complainant refused to given the same as misplaced and has misused the same by filing the present case. DW1 was crossexamined and in his crossexamination, he has admitted that he issued cheque in question for security purpose for purchase of truck tyres. He was not given any receipt against the security cheque. In February 2008, his employee purchased the truck tyres for Rs.24,000/ but DW1 on being asked deposed that the employee was his father. No cash memo was issued by complainant regarding the said transaction.
Arguments from both the sides have been heard. Record perused. Ld. Counsel for complainant has argued that the accused has admitted cheque was dishonoured due to insufficient funds. It is further argued that legal notice was served upon the accused through Regd. AD and the AD card is on record. Ld. Counsel for complainant has further argued that there is discrepancy in the chief and cross of DW1.
Ld. Counsel for accused has argued that complainant has admitted in CC No.136/1/08 Naveen Tyres V. Sunder 4 of 12 pages his affidavit Ex.CWX that PDC was given for securing the loan amount. Ld. Counsel for accused also argued that no loan agreement was executed and ITR has also not shown by the complainant to show the loan amount.
Ld. Counsel for accused has also relied upon certain judgments such as M.S. Narayana Menon @ Mani V. State of Kerela & Anr. 2006 AIR(SC) 3366, Krishan Janardan Bhat V. Dattatraya G. Hegde AIR 2001 SC 1325, Laxmi Niwas Aggarwal V. Andhra Semi Conductors Pvt. Ltd. 2006 Cr.L.J 2643, Dattatraya V. Rangnath Gopalrao Kawathekar (Dead) through LRs AIR 1971 SC 2548, Vijay V. Laxman & Ors. 2013(2) JCC (NI) 103, Sapna K.C. & Ors. V. Azad Khan & Ors.. MAC. APP 1164/2012 Delhi High Court and Narbada Devi Gupta V. Birender Kumar Jaiswal 2004 AR (SC) 175.
Judgements relied upon by Ld. Counsel for accused perused. The judgments Sapna K.C. & Ors. V. Azad Khan & Ors.. MAC. APP 1164/2012 Delhi High Court and Narbada Devi Gupta V. Birender Kumar Jaiswal 2004 AR (SC) 175 are not according to the facts and circumstances of the present 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 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 CC No.136/1/08 Naveen Tyres V. Sunder 5 of 12 pages 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 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 CC No.136/1/08 Naveen Tyres V. Sunder 6 of 12 pages 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.
The defence taken by the accused is that cheque in question was CC No.136/1/08 Naveen Tyres V. Sunder 7 of 12 pages given as security to the complainant towards purchase of tyres of Rs.24,000/ which he had paid to the complainant but the complainant did not return his cheque and had misused the same by filing the present complaint. However, law is very clear on defence of security cheques.
To this Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: "Section 20 of N.I At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and the extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357: (2006) CrLJ3140: (2007) 6 Karn LJ 237 (Kant).
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475, where it was held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of section 87 merely by writing details on cheque".
It is also held 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 CC No.136/1/08 Naveen Tyres V. Sunder 8 of 12 pages 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".
The other defence taken by accused is that he had made payment in cash to the complainant but no receipt has been produced by him and presumptions u/s.114(g) of the Indian Evidence Act are against the accused. To this section 114(g) of the Indian Evidence Act reads as under:
"That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
It is settled preposition of law that the guilt of accused must be proved 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 CC No.136/1/08 Naveen Tyres V. Sunder 9 of 12 pages 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".
In these circumstances, as the complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on the point of sentence.
today on 22.07.2013. MM / ROHINI COURTS / DELHI
Announced in the open court (SHEFALI BARNALA TANDON)
CC No.136/1/08 Naveen Tyres V. Sunder 10 of 12 pages
IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
Unique ID No. 02404R0228062009
CC No. 136/1/08
M/s. Naveen Tyres
Vs.
Sunder
U/s. 138 Negotiable Instrument Act
24.7.2013
ORDER ON SENTENCE
Present: Complainant in person Shri Prabhat Kiran
Convict with Ld. counsel Sh. Arvind Kumar
Arguments heard on the point on sentence. It is submitted by the counsel for the convict that convict is aged about 27 years and the matter pertains to year 2008. He has a family consisting of wife and one year old child. Convict is the sole bread earner in the family. He is the first time offender and there is no other case pending against him. Therefore, lenient view be taken against him.
Ld. Counsel for complainant has submitted that the matter pertains to the year 2008 and an amount of Rs.3,27000/ was involved in the matter. Therefore, maximum punishment be awarded to the convict.
I have heard the submissions and carefully perused the record. Complainant regarding present cheque in question is pending since 2008 and the same relates to the business transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the offence U/s 138 NI Act are on high rise and the present matter is pending since 2008.
CC No.136/1/08 Naveen Tyres V. Sunder 11 of 12 pages Considering the totality of circumstances and seeing the age of convict, he is sentenced to undergo imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs.5,00,000/ u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of three 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 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.50,000/ with surety of like amount. Bail bond furnished and accepted till 24.8.2013.
Copy of this order be given to the convict free of cost. Bail bonds be put up on 24.8.2013. File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon) court on 24.7.2013 MM (N/W)/Rohini Courts, Delhi. CC No.136/1/08 Naveen Tyres V. Sunder 12 of 12 pages