Delhi District Court
Complainant vs Raj Kumar Bhati on 29 September, 2010
In the Court of Sh. Praveen Singh: Additional Senior Civil Judge-cum-
Judge, Small Cause Court, (New Delhi District), Patiala House Courts,
New Delhi
Unique I.D. No. 02403R0540912009
C.C. No. 1787/09
Kashi Ram,
S/o Sh. Mohal Lal,
R/o Q-10, Old Double Storey,
Lajpat Nagar,
New Delhi.
....................... Complainant.
VERSUS
Raj Kumar Bhati,
Director M/s Bhati Agro Pvt. Ltd.
I-139, Savitri Nagar,
Near Sheikh Sarai, Phase-I,
New Delhi.
Also At:
H-1/61, Industrial Area,
Bhiwadi,
Phase-III, Alwar, Rajasthan
..........................Accused.
Date of Institution : 22.10.2003.
Date of Arguments: 25.09.2010.
Date of Judgment : 29.09.2010.
COMPLAINT UNDER SECTION 138 OF N.I. ACT.
C.C.No.1787/10 1 of 20
JUDGMENT :
The present complaint under section 138 of Negotiable Instruments Act, 1881 has been filed by the complainant against the accused.
2. The case of the complainant is that the accused had taken a friendly loan from him and towards the repayment of the said loan, the accused had delivered a cheque bearing no. 192018, dated 09.08.2003, for Rs.1,00,000/- drawn on Canara Bank, Nehru Place branch, New Delhi. It is further submitted that when the complainant presented the cheque for encashment, it was dishonoured with remarks ''Not arranged for- Exceeds arrangements''. It is further submitted that the complainant then served a legal notice dated 17.02.2003, on the accused but the accused did not make payment of the cheque amount despite service of notice. The statutory period for making the payment expired and thus, the offence under section 138 of Negotiable Instruments Act, 1881 was committed by the accused and hence, the present complaint.
3. The accused on being served with the summons appeared before the court and was granted the bail. Thereafter, notice under section 251 Code of the Criminal Procedure, 1973 (Cr.P.C) was framed against the accused to which he pleaded not guilty and claimed trial.
4. Thereafter, the complainant appeared as CW1. The statement of the accused under section 313 Cr.P.C was recorded on 06.02.2009. The accused preferred to lead evidence in his defence and examined himself as DW1, Smt. Rakesh Bhati as DW2, Sh. Manoj Kumar Sharma as DW3, Sh. Kashi Ram s/o Sh. Sultan Singh as DW4 and Sh. Mudrika Sah, clerk cum cashier, Allahabad Bank as DW5.
5. I have heard counsels for the parties and gone through the material on record carefully.
C.C.No.1787/10 2 of 20
6. As the present is an offence under section 138 of Negotiable Instruments Act, 1881, there is a legal presumption that the cheque if issued and handed over to a person, was issued against a liability. However, this presumption is rebuttal and therefore, it becomes important to first have a look at the defence which has been set up by the accused.
7. In the present case, there is no denial on behalf of the accused that the cheque in question was issued by him. However, the accused has taken a stand that the cheque in question was issued by him to make the payment of dues to Sh. Kashi Ram (who appeared as DW4) and, it was handed over by the accused to his employee namely Sh. Tara Chand to be delivered to Sh. Kashi Ram, DW4. The said Tara Chand after receiving the cheque absconded with it and never rejoined the service of the accused. It has further been the case of the accused that the said Tara Chand used to reside in the house of the complainant and, the complainant taking advantage of the fact, that he has the same name, had filled up the amount in the cheque in conniver with the said Tara Chand and misused the cheque and in fact, he had no liability towards the complainant with regard to the cheque in question and the cheque was not meant for the complainant. In the light of this defence of the accused, let us discuss the evidence at hand.
8. The complainant appearing as CW1 has deposed that to discharge a friendly loan of Rs.1,00,000/-, the accused issued a cheque in question which is Ex.CW1/A. He further deposed that when he presented the said cheque through his banker for encashment, the said cheque was returned back dishonoured with remarks ''Not arranged for- Exceeds arrangements'' with return memo dated 13.09.2003, Ex.CW1/B. He further deposed that after the return of cheque as dishonoured, he sent a demand notice dated 17.09.2003, Ex.CW1/C whereby the cheque amount was demanded from C.C.No.1787/10 3 of 20 the accused. He further deposed that the said demand notice was sent vide postal receipts Ex.CW1/D and Ex.CW1/E. He further deposed that it was also sent through UPC Ex.CW1/F. He further deposed that despite service of the legal demand notice, the accused did not make payment of the cheque amount within the period as stipulated under the law.
9. During his cross examination, he deposed that he was an income tax payee but, had not filed the copy of income tax return in the court. He further deposed that he had no documents to show that he had advanced the loan to the accused and that he had not reflected the loan amount in his income tax return. He further deposed that there was no correspondence in respect of giving of loan between the accused and him. He further deposed that he did not know when he advanced the loan. He further deposed that he did not remember as to when he presented the cheque in question for encashment. He admitted that he did not mention the date of advancing of loan and the date of presentation of the cheque in the bank. He did not remember when the cheque was dishonoured. He admitted that he served a legal notice but he did not remember the date. He could not say whether it was sent on 17.02.2003 but, it was returned undelivered. He denied the suggestion that the accused had not taken any loan and there was no liability towards him. He denied the suggestion that the accused had not issued any cheque to him. He admitted that one person named Tara Chand was residing with him in his accommodation and he knew him because, they both belonged to the same town. He further deposed that the said Tara Chand was employed as a sales man in Bhati Agro Pvt. Ltd.. He admitted that the Bhati Agro P Ltd. was in the business of flour mill. He denied that the cheque was prepared for giving to Kashi Ram, a supplier of wheat to company, and the same fell in his hand. He further deposed that he did not C.C.No.1787/10 4 of 20 know whether Tara Chand was absent from his employment since 08.08.2003? He denied that Tara Chand took the cheque and handed over the same to him. He further denied that he and Tara Chand conspired and put the date on the cheque and misappropriated the same. He further deposed that he did not know that the complainant had lodged a complaint against the said Tara Chand and also published in this regard in a newspaper. He further denied that he did not know whether a complaint case titled Bhati Agro P Ltd. v. Tara Chand, Kashi Ram u/s 406/417/420/471/468/469 read with section 120B IPC was pending before this court and was fixed for 20.02.2008. He denied the suggestion that he had filed a false complaint or that the accused had no liability towards him.
10. On the other hand, the accused appeared as DW1. He deposed that he runs a flour mill in Bhiwadi, Rajasthan under the name of Bhati Agro Pvt. Ltd. He further deposed that the head office of the said company is I-139, Savitri Nagar, Near Malviya Nagar, Delhi. He further deposed that he purchased raw material from Bhiwadi and the markets near thereto. He further deposed that his company used to purchase raw material from one Kashi Ram, a resident of Bhiwadi. He further deposed that the complainant is not the said Kashi Ram from whom, he used to purchase the goods. He further deposed that after purchasing raw material from the said Kashi Ram, a bill was issued to him. He further deposed that he had made purchase of raw material twice from Kashi Ram. He further deposed that the bills are Ex.D-2 and Ex.D-3. He further deposed that he had employed many workers to run the flour mill. He further deposed that he did not remember the name of all the employees but, he remembered the name of one Tara Chand and Narayan Singh. He further deposed that he used to maintain an attendance register of all the workers and the attendance register w.e.f April, 2003 to C.C.No.1787/10 5 of 20 August, 2003 is Ex.D-4. He further deposed that before joining his company, Tara Chand used to stay as a tenant with the complainant. He further deposed that the said Tara Chand stayed at the house of the complainant from July 2000 to October 2002, and, during that period, the said Tara Chand worked in his office at Delhi. He further deposed that in October, 2002, he sent Tara Chand to work in his mill at Bhiwadi. He further deposed that he had never purchased any goods from the complainant and had never met the complainant. He further deposed that Tara Chand used to look after the work at Bhiwadi. He further deposed that Tara Chand also used to prepare the bill of the goods sold by the company and was also working as a watchman. He further deposed that the money matters were also dealt by the said Tara Chand. He further deposed that he used to purchase wheat from one Kashi Ram and, in order to pay the price of the same, he used to issue security cheques. He further deposed that the cheques to Kashi Ram were used to be issued without putting the dates thereon. He further deposed that one security cheque for Rs.1,00,000/- was prepared by the him on 08.08.2003 and the said cheque had number 192018 and no date had been put on that cheque. He further deposed that on 08.08.2003, he called Tara Chand to Delhi and handed over to him the said cheque and, he was directed that the said cheque should be delivered to the person named Kashi Ram, resident of Bhiwadi. He further deposed that the cheque Ex.CW1/A is the cheque which had been handed over to Tara Chand. He further deposed that after taking the cheque from him, Tara Chand neither reached Bhiwadi, nor handed over the cheque to Kashi Ram. He further deposed that he tried to contact the said Tara Chand on telephone but, he could not succeed in the same and on 11.08.2003, he wrote a letter to Tara Chand and sent it to his two addresses. He further deposed that both C.C.No.1787/10 6 of 20 the letters were sent to Tara Chand through UPC and a copy of the same is Ex.D-5 and the copy of the UPC is Ex.D-6. He further deposed that the said Tara Chand neither returned on job nor replied the letter. He further deposed that the said Tara Chand also did not return the cheque. He further deposed that he then tried to lodge a complaint in Malviya Nagar police station but, the police asked him to approach Bhiwadi Police and when he approached Bhiwadi police, they also refused to take any action. He further deposed that later on, on 25.08.2003, he sent a written complaint to police station at Delhi and Bhiwadi through post. A copy of the same is Ex.D-7 and the UPC receipt is mark A. He further deposed that when the police did not take any action, he got published a classified in a newspaper and the copy of the same is Ex.D-8 and Ex.D-9. He further deposed that thereafter on 03.09.2003, he received a notice from the court of Sh. Sanjeev Jain and then he found out that the cheque which he had given to Tara Chand has been misused. He further deposed that he then filed a complaint against Tara Chand and Kashi Ram and a copy of the same is Ex.D-10 and the affidavit supporting the same is Ex.D-11 and the application under section 156 (3) Cr.P.C is Ex.D-
12. He further deposed that the said complaint is pending in the court of Sh. Saurabh Kulshreshtha, learned M.M., New Delhi.
11. During his cross examination, he deposed that he never met the complainant prior to filing of the present complaint. He further deposed that he had never gone to the house or the office of the complainant. He further deposed that Tara Chand had told him the address and phone number of the complainant. He also deposed that his company has been established since 1995. He further deposed that he had seen the bill book placed on court file and the first bill in the file was dated 06.08.2003. He further deposed that the bill book filed on the record is the first bill book and prior to that, there C.C.No.1787/10 7 of 20 was no bill book. He further deposed that he had seen the attendance register for the month of August, 2003. He admitted that in the said register, in the month of August, the attendance of Tara Chand for dates 5, 6, 7, 8 and 9 had overwriting upon it. He denied that he had changed the letter 'A' to letter 'P' on dates 5, 6, 7 and 8.08.2003. He further deposed that the letter 'A' had been made by a person namely Sita Ram however, later on Tara Chand had changed it from 'A' to 'P'. He admitted that in August, 2003, the attendance of Tara Chand for 09.08.2003 had been changed from 'P' to 'A'. He further deposed that he had given a cheque to Tara Chand in Delhi on 08.08.2003, at around 12 noon to 1.00 P.M during the day. He further deposed that Tara Chand was regular in his work but, before leaving the work, he had took leave for two or three days. He denied the suggestion that Ex.D-1 and Ex.D- 5 are the forged documents. He admitted that in the complaint Ex.D-10, he had mentioned that a cheque and some documents were missing from his office and he apprehended that the same had been taken away by the Tara Chand. He further deposed that when Tara Chand started work with him, he was staying at the house of the complainant and he stayed at the house of the complainant till October 2002, when he was sent to Bhiwadi. He admitted that Tara Chand was not residing as a tenant with him and admitted that in Ex.D-10, he has mentioned that Tara Chand was staying at his house. He voluntarily stated, that this fact has been mentioned with regard to his house at Bhiwadi. He further deposed that after Tara Chand had absconded, he called the complainant Kashi Ram. He further deposed that he called the complainant on 09.08.2003, in the evening. He further deposed that he had seen paragraphs no. 3, 6 and 7 in Ex.D-10 and the facts written in those paragraphs are correct. He admitted that in Ex. D-10, he had nowhere written that he himself had handed over the cheque to Tara Chand. He C.C.No.1787/10 8 of 20 further admitted that in Ex.D-5 and Ex.D-7, he had not written that he himself had handed over the cheque to Tara Chand. He further deposed that apart from Tara Chand's address of the house of the complainant, he also knew the permanent address of Tara Chand but, he never went to the permanent address of Tara Chand. He further deposed that a security cheque was handed over by his company when the goods were received. He further deposed that bill was also issued when the goods were received. He further deposed that the goods with respect to Ex.D-3 pertained to purchase of 01.08.2003 and, the same were received on 01.08.2003. He further deposed that the goods with respect to Ex.D-2 pertained to 08.04.2003 and the same were received on 08.04.2003. He denied the suggestion that he used to supply flour to the complainant and that is why, he knew the complainant. He further denied the suggestion that due to acquaintance with the complainant, he had taken a friendly loan from the complainant and, had issued a cheque Ex.CW1/A to discharge that loan.
12. DW2 Mrs. Rakesh Bhati deposed that she is the wife of the accused. She further deposed that on 08.08.2003, her husband had called Tara Chand to Delhi because he had to give a cheque to one Kashi Ram resident of Bhiwadi. She further deposed that her husband gave Tara Chand a cheque in the name of Kashi Ram and the cheque pertained to Canara Bank but in the body of the cheque, only the name and the amount was filled and the column for the date was empty. She further deposed that at the time of delivery of cheque, apart from her, her husband and her neighbour Manoj were present. She further deposed that Ex.CW1/A was the same cheque which her husband had handed over to Tara chand with the directions, that the same be given to Kashi Ram. She further deposed that the said Tara Chand did not deliver the said cheque to Kashi Ram and never returned after C.C.No.1787/10 9 of 20 08.08.2003. She further deposed that when Tara Chand did not return on job, her husband called him and wrote letter to him and finally, gave an information/ complaint to the police station.
13. During her cross examination, she deposed that her company had 10- 12 workers amongst them two were munims and two were labourer. One munim was named Tara Chand. She further deposed that she had seen Ex.CW1/C and the address of her company upon it and the same was correct. She further admitted that that the address of her company was also correctly mentioned on Ex.CW1/F and Ex.CW1/M. She further deposed that she did not remember if, she had told to the postman at Bhiwadi that whatever letter was received at Bhiwadi address, the same should be redirected to her Delhi address. She further deposed that the cheque was handed over to Tara Chand between 12 noon to 1.00 P.M. She further deposed that she resided on the upper floor of the same building in which their office existed and, the cheque was handed over to Tara chand in the office. She further deposed that on that day, Tara Chand had stayed in the office for about half an hour. She further deposed that Tara Chand had come in her presence and left in her presence. She further deposed that when Tara Chand came, Manoj was already in the office and had arrived 10 minutes prior to Tara Chand. She further deposed that when Tara Chand left the office at that time Manoj was sitting in the office. She further deposed that she left the office about 10 minutes after Tara Chand had left the office. She was specifically asked whether her husband or she had ever telephoned the complainant after Tara Chand had absconded. She replied that why would they call the complainant. She further admitted that the document Ex.CW1/C and Ex.CW1/G had the address of her company at Bhiwadi. She further deposed that when Tara Chand had come to their office on C.C.No.1787/10 10 of 20 08.08.2003, he had a little chit chat with Manoj. She denied the suggestion that she was deposing falsely in order to save her husband.
14. DW3 Sh. Manoj Kumar Sharma deposed that he knew the accused and his wife. He further deposed that he knew the employee of the accused namely, Tara Chand. He further deposed that he was having his business near to the office of the accused and he used to visit frequently to the office of the accused. He further deposed that the last time he had seen Tara Chand was in the office of the accused on 08.08.2003. He further deposed that his shop is small in size and therefore, he used to do some of his work in the office of the accused. He further deposed that on 08.08.2003, the accused had handed over a cheque to Tara Chand and at that time apart from him, the accused and his wife were also present. He further deposed that the cheque was handed over between 12 to 12.30 p.m. He further deposed that he did not know the amount of the cheque. He further deposed that after handing over the cheque, the accused asked Tara Chand to give the same to Kashi Ram in the factory.
15. During his cross examination, he deposed that he knew the accused since 1992. He further deposed that on 08.08.2003, before Tara Chand came, he was sitting in the office of the accused and was welding. He further deposed that wife of the accused had arrived a little after the arrival of Tara Chand. He further deposed that Tara Chand came to the office of the accused at around 10 to 10.30 A.M. and left the office in his presence at around 12.30 P.M. He further deposed that wife of the accused had come about 30 to 45 minutes after the arrival of Tara Chand. He denied the suggestion that he is deposing falsely in order to save the accused.
16. DW4, Sh. Kashi Ram son of Sh. Sultan Singh deposed that he knew the accused since the year 2000 and he had an Atta Chakki at Phoolbagh, C.C.No.1787/10 11 of 20 Bhiwadi, Rajasthan. He further deposed that sometimes when there was no electricity, he used to avail the services of the accused as he was also running a flour mill. Thereafter, he started selling wheat to the accused. He further deposed that firstly, he supplied wheat to the accused on 08.04.2003 for approximately a sum of Rs.50,000/-. He further deposed that the accused made the payment of the wheat and obtained his signature. He further deposed that again on 01.08.2003, he supplied wheat to the accused for a sum of approximately Rs.47,000/- to Rs.48,000/- and the accused undertook to make the payment of the same within a week. He further deposed that the accused told him that on 09.08.2003 when he would give further supply of the wheat, the accused would clear the bill for earlier transaction dated 01.08.2003. He further deposed that the accused also told him that he would issue a security cheque for further transactions. He further deposed that on 09.08.2003, when he went to the factory of the accused for supplying the wheat, the accused was not available so he had telephoned the accused who told him that he had given a cheque bearing no. 192018 drawn on Canara Bank to one Tara Chand who would hand over the same to him on the same day. He further deposed that thereafter, he waited for two-three hours and again telephoned the accused that Tara Chand had not come. He further deposed that he had met Sita Ram and told him that since he had not received the cheque, he would not supply the wheat and thereafter, he left. He further deposed that 3-4 days later, the accused visited his shop and he asked the accused to make payment of the purchase dated 01.08.2003. He further deposed that he received the payment.
17. During his cross examination, he deposed that on 09.08.2003, he had made a call to the accused at 11.30 A.M. He further deposed that a cheque of Rs.1,00,000/- was given as a security towards the transaction entered into C.C.No.1787/10 12 of 20 between the parties on 01.08.2003. He further deposed that out of Rs.1,00,000/-, Rs.52,000/- were on account of the transaction entered into on 08.04.2003 whereas remaining amount of Rs.48,000/- was against the transaction entered into on 01.08.2003. He admitted that the payment against dated 08.04.2003 was made in cash on the same day. He denied that he is deposing falsely at the instance of the accused.
18. DW5 deposed that he was a summoned witness and he had brought the statement of account w.e.f 05.08.2003 to 03.10.2003 pertaining to account no. 170116 standing in the name of Sh. Kashi Nath Gupta, resident of A-178/8, Dayanand Colony, New Delhi-110024. He further deposed that the certified copy of the statement of account is Ex.DW5/A signed by Smt. Sharda Garg, Senior Manager, Allahabad Bank who has signed in his presence and he could identify the same at point A. He had also brought the certified copy of the specimen signature card/ account opening form of Sh. Kashi Nath Gupta which is Ex.DW5/B and Ex.DW5/C.
19. During his cross examination, he deposed that account pertained to year 1977. He further deposed that the account pertained to the complainant who was present in the court as he frequently visits the bank. He further deposed that he was an old customer to his bank and was known as Kashi Ram.
20. The main stress of learned counsel for the accused has been on the fact that the complainant has failed to prove the advancement of the loan as the complainant has nowhere in his complaint stated that when the loan was advanced and has not reflected that loan in his income tax return. However, I find this argument to be not of much consequence because as per section 139 of Negotiable Instruments Act, 1881, there is a presumption that when a cheque is issued, the same is issued in discharge of debt or other liability C.C.No.1787/10 13 of 20 unless it is proved to be contrary. Therefore, the onus to prove that the cheque was not issued in discharge of any debt or liability towards the complainant or that the complainant is not the person to whom the cheque was issued and handed over, is primarily upon the accused.
21. The claim of the accused is that he had handed over the cheque in question to his employee Tara Chand and directed him to give the same to one Kashi Ram. The said Kashi Ram also appeared as DW4. However, this claim of the accused is contrary to the previous conduct of the accused. I say so because the accused has claimed to have sent a letter dated 11.08.2003 to the said employee Tara Chand and the said letter is Ex.D-5. In the said letter, the accused mentions that the said Tara Chand is not coming to the office since 08.08.2003 and he could not contact the said Tara Chand on the phone number as provided by the said Tara Chand. The accused further stated that on searching the office, he found out that a cheque of the company bearing no. 192018 for an amount of Rs.1,00,000/- (the cheque in question) and some other documents were missing. Also in Ex. D-7, which is a complaint dated 25.08.2003 made to the S.H.O, P.S. Malviya Nagar, New Delhi, the accused has again stated that the said Tara Chand was his employee and had disappeared from his office without any information since 08.08.2003 and after sometime, he came to know that he had prepared one cheque of Rs.1,00,000/- in favour of Kashi Ram, who is his supplier and on further search, he came to know that some other documents were missing from the office and there is apprehension that the said Tara Chand has misused the cheque as he has disappeared without informing him. Furthermore, in the complaint made before the learned ACMM, New Delhi, which is Ex.D-10, the accused has mentioned that the said Tara Chand had suddenly disappeared from the office without informing him or without C.C.No.1787/10 14 of 20 leaving any message and hence, the accused suspects that the said Tara Chand might have taken away some important documents as well as the cheque in question. It is also stated in the said complaint that when on 03.11.2003, he received summons of the present court, he came to know that it pertains to the same cheque which was misplaced from his office alongwith other documents. He further mentioned that the said Tara Chand had lifted the cheque in question. All the consistent statements made in various complaints show that the stand of the accused had been that the cheque was in fact either misplaced or taken away by the said Tara Chand without the knowledge of the company whereas, the accused in the present case, appearing as DW1, claimed that the cheque was handed over to the said Tara Chand by the accused himself. He also brought two witnesses to prove the same who also claimed that the cheque in question was handed over to the said Tara Chand in their presence with the directions of handing over the same to Kashi Ram, DW4. Therefore, the main stand of the accused that the cheque was handed over to Tara Chand, who had misused the same in collusion with the complainant, is doubtful. Furthermore, with regard to this fact of handing over of the cheque, there are contradictions in the testimonies of the witnesses to the handing over of cheque who are DW2 and DW3. DW2 deposed that for receiving the cheque, the said Tara Chand had come the office in her presence whereas, DW3 deposed that DW2 had come to the office about 30-45 minutes after the arrival of Tara Chand. Both these witnesses consistently deposed that the cheque was handed over to Tara Chand at 12.30 P.M. Interestingly, DW2 deposed that Tara Chand remained in the office for half an hour at the most whereas according to DW3, Tara Chand had come to the office at 10-10.30 a.m and left the office at 12.30 p.m. Therefore, it is not possible that Tara Chand would have C.C.No.1787/10 15 of 20 stayed in the office only for half an hour. Therefore, I find that the accused even by preponderance of probabilities has failed to establish that the cheque in question was handed over to the said Tara Chand.
22. Furthermore, DW4 on the one hand deposed that he had supplied the wheat to the accused on two occasions. The first one was on 08.04.2003 when he had supplied the wheat of around Rs.50,000/- and the second was on 01.08.2003 when he supplied the wheat of around Rs47,000-Rs.48,000/-. The payment for the first transaction was made by the accused but the accused undertook to make payment of second supply within a week when he would be supplying further quantity of wheat. However, during his cross examination, he has deposed that a cheque of Rs.1,00,000/- was given as a security towards the transactions entered into between the parties on 01.08.2003, out of which Rs.52,000/- were for the transaction dated 08.04.2010 and Rs.48,000/- was against the transaction dated 01.08.2003. He further admitted that the payment against the transaction dated 08.04.2003 was made in cash on the same day. Thus, the cheque in question could not have been for any security amount. Furthermore, the accused claimed to have handed over the cheque on 08.08.2003 to be handed over to DW4, Kashi Ram and DW4 claimed that on 09.08.2003 when he reached the factory of the accused, the accused was not available and therefore, he telephoned the accused who told him that the cheque in question was handed over to one Tara Chand who would hand over the same to DW4. It is highly improbable that a person who has been handed over a cheque on 08.08.2003 would not reach the place like Bhiwadi, which is only 2 ½ to 3 hours distance away from Delhi, by the morning of 09.08.2003 and the accused would still say that the same is about to reach DW4 and the accused would not become apprehensive.
C.C.No.1787/10 16 of 20
23. Furthermore, the accused has claimed that after receiving the cheque on 08.08.2003, the said Tara Chand vanished from his office and to prove the same, he has filed the attendance register which is Ex.DW1/DX1. He had specifically been put a question, that there is an overwriting on the attendance marks of Tara Chand for 5, 6, 7, 8 and 09.08.2003. He deposed that Tara Chand had been marked absent by one of his employees but later on Tara Chand himself marked his presence for 5, 6, 7 and 08.08.2003. However, interestingly for 09.08.2003, it is very much evident and the accused admitted in his cross examination that the presence of the accused had been marked which has been changed later on to absent. There is no satisfactory explanation given on behalf of the accused for these manipulations in the attendance register. Furthermore, on the one hand, the attendance register shows that the said Tara Chand was not present on 5, 6, 7 and 08.08.2003 but the accused claimed that the Tara Chand was very regular in attending his duties and in his cross examination, he deposed that prior to leaving the work, he had taken leave for two-three days implying thereby that before disappearing on 08.08.2003, the said Tara Chand was on leave for two-three days. However, by overwriting on the attendance register for the month of August, 2003, the said Tara Chand has been shown to be present on 5, 6 and 7.08.2003. It is highly probable now that Tara Chand was in fact absent on 5, 6, 7 and 08.08.2003 and therefore, could not have received the cheque in question but the entries in the attendance register have been manipulated in order to create a defence of the accused of handing over of the cheque to Tara Chand and misuse of the same by the complainant thereafter.
24. Furthermore, the accused has himself deposed that after October, 2002, the said Tara Chand was not residing at the house of the complainant C.C.No.1787/10 17 of 20 and was in fact residing on his house/ factory in Bhiwari. Thus, I fail to understand that why would the accused send the letter dated 11.08.2003 , Ex.D-5 to the address of the complainant, which admittedly according to the accused, the said Tara Chand has left in October, 2002. It is very surprising that the accused would write letters to the said Tara Chand, make complaints to various authorities but, never write a letter to his bank for stopping payment against the cheque in question, which, he himself had discovered on 09.08.2003, had been misappropriated by the said Tara Chand.
25. In view of the above discussions, I find that the accused has failed to establish his defence by preponderance of probabilities and on the contrary, it appears that the entire story has been concocted by the accused and the documents have been manipulated by the accused later on.
26. The next rung of argument of learned counsel for the accused is that the name of the complainant is in fact Kashi Nath Gupta and therefore, it is very much evident that the cheque in question could not have been issued in the name of the complainant and thus, the cheque was not intended for the complainant but the complainant has misused the same. In this regard, he has relied upon the testimony of DW5 who is an employee of the bank with which the complainant has his account. The witness DW5 during his cross examination has deposed that the complainant holds an account since the year 1977 and is also known by the bank by the name of Kashi Ram. It is also to be noted that the accused himself has sent a letter Ex.D-5 addressed to the said Tara Chand at the address of the complainant and mentioned his name to be Kashi Ram. Furthermore, the accused in his complaint Ex.D-10 has also mentioned his name to be Kashi Ram. Therefore, if the bank had been presented a cheque for honouring, knowing clearly that the complainant is also known by the name of Kashi Ram and the accused C.C.No.1787/10 18 of 20 himself knew the complainant by the name of Kashi Ram, it does not appear to be improbable that the cheque in question could have been intended for the complainant. Furthermore, it is to be seen that DW2 who is the wife of the accused has clearly admitted that all the postal receipts through which the legal notice was sent bore their correct address. Thus, a presumption in favour of the service of the notice is raised. Also, the complainant was never confronted with a suggestion that the legal notice was not served upon the accused. I, therefore, find that the legal notice, Ex.CW1/C was duly served on the accused.
27. Therefore, in view of the discussion above which exposes a false defence raised by the accused, not much of credience can be given to this line of argument. I accordingly find that the accused has failed to rebut the presumption under section 139 of Negotiable Instruments Act, 1881 and thus, resultantly find that the accused had given the cheque in question to the complainant to discharge a legally recoverable debt but the said cheque on being presented was dishonoured vide dishonour memo Ex.CW1/B. I further find that even the accused was served with a legal notice Ex.CW1/C and despite service of legal demand notice, he did not make payment of the cheque amount within the period stipulated under the law and thus, the accused has committed offence under section 138 of the Negotiable Instruments Act, 1881. I, accordingly, convict the accused.
27. Be heard on the point of sentence on 06.10.2010.
Announced in the (PRAVEEN SINGH) open court on 29.09.2010. Judge, Small Cause Court-cum-
Additional Senior Civil Judge,
(New Delhi District), New Delhi
C.C.No.1787/10 19 of 20
C.C. No. 1787/09
29.09.2010
Present: Complainant in person alongwith counsel.
Accused on bail alongwith counsel.
Vide my separate judgment, the accused is convicted for the offence under section 138 of Negotiable Instruments Act, 1881.
Be heard on the point of sentence on 06.10.2010.
(PARVEEN SINGH) Judge, Small Cause Court-cum-
Addl. Sr. Civil Judge, New Delhi 29.09.2010.
C.C.No.1787/10 20 of 20