Delhi District Court
Bakshi Sunder Singh vs Rajesh Kumar on 30 May, 2012
IN THE COURT OF SH. SANJAY JINDAL
JSCCcumASCJcumGJ (NW) : DISTRICT COURTS : ROHINI
DELHI
Unique ID No. : 02404R1308982005
CC No. 1895/10/05
Bakshi Sunder Singh Versus Rajesh Kumar
P.S. Tilak Nagar
U/s : 138 NI Act
JUDGMENT
a) Name of the complainant : Bakshi Sunder Singh S/o Late Sh. Kartar Singh R/o : 12/46A, Tilak Nagar New Delhi18.
b) Name & Address of accused : Sh. Rajesh Kumar S/o Sh. Madho Singh, R/o : E21/291, Sector3, Rohini, N. Delhi110085.
c) Offence complained of or proved : 138 NI Act.
d) Plea of the accused : Pleaded not guilty e) Date of institution of the case : 08.07.2005 f) Date of reserving of Judgment : 30.05.2012 g) Final Judgment : Convicted h) Date of such Judgment : 30.05.2012
BRIEF REASONS FOR THE DECISION OF THE CASE : 1 This is a case/complaint U/s 138 of the Negotiable Instruments Act which was assigned to this Court by Hon'ble High CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 1/10 Court vide Order No. 145192/F.3(4)/MM dated 02.01.2009. 2 The brief facts as per the case of the complainant are that the accused approached the complainant for temporary use of his shop in Property no.14/25A, Tilak Nagar, New Delhi110018 in the month of March, 2005 for a specific period and used the same at settled charges of Rs.10,000/, in consideration of which the accused issued Chaque No. 396192 dated 01.04.2005 for Rs.10,000/ drawn on the Oriental Bank of Commerce, Dwarka, New Delhi in favour of the complainant. The said cheque was dishonoured on presentation before the bank vide memo dated 04.04.2005 due to the reasons 'refer to drawer' qua which the accused was informed and on his request, the cheque was again presented in the first week of May, 2005 but the same was again returned unpaid by the bank with the endorsement insufficient funds/drawer's signature differ/required vide memo dated 06.05.2005. The complainant got issued a legal notice dated 19.05.2005 but the accused has failed to make the payment despite service of the said notice. Hence, this complainant. 3 Vide order dated 14.09.2005, the accused was summoned U/s138/142 NI Act. Notice U/s 251 Cr.P.C for the commission of CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 2/10 offence U/s 138 of the Negotiable Instruments Act was served upon the accused on 18.08.2008 to which he pleaded not guilty and claimed trial.
4 In support of his case, complainant Sh. Bakshi Sunder Singh examined himself as CW1. He has relied upon the documents i.e., cheque Ex.C1, cheque return memo Ex.C2, legal notice Ex.C3, postal receipts Ex.C4 to Ex.C7 respectively.
5 Statements of the accused under Section 313 Cr.P.C. was recorded on 21.04.2012 wherein all the incriminating evidence and documents on record were put to him which were denied in general by the accused. However, he has admitted that the said shop was taken on rent by him. He has explained that the shop was used by him as well as the complainant and the key of the same was also with the complainant and that without his permission, the complainant took out the the alleged cheque and after filling the particulars and putting his false signature, presented the same before the Bank and that he is innocent. He opted not to lead any evidence in his defence.
CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 3/10 6 I have heard the counsel for parties and perused the record. It is argued on behalf of the complainant that the case of the complainant has been duly proved in view of the testimony of CW1 and the admissions made by the accused. It is further argued that the defence raised by the accused is baseless and the same has not been proved to any extent during trial. On the other hand, it has been argued on behalf of the accused that total false case has been filed by the complainant against the accused after manipulating the cheque in question. It is further argued that the case of the complainant is suffering from discrepancies and contradictions. It is submitted that the accused is innocent and he deserves acquittal. 7 To prove his case, the complainant has examined himself as CW1. He has relied upon the documents i.e., cheque Ex.C1, cheque return memo Ex.C2, legal notice Ex.C3, postal receipts Ex.C4 to Ex.C7 respectively. He has been cross examined on behalf of the accused.
8 In order to attract the liability of the accused U/s 138 of the NI Act, the complainant is required to prove : CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 4/10
a) that the accused issued the cheque No. 396192 dated 01.04.2005 for a sum of Rs. 10,000/ to the complainant for the discharge of legal debt/ liability;
b) that the complainant presented the said cheque to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever was earlier;
c) that the said cheque was dishonoured by the banker of the accused due to insufficiency of funds in the account of the accused;
d) that the complainant made the demand for the payment of said amount of cheque by giving a notice in writing to the accused within 30 days from the receipt of information regarding dishonour of the cheque;
e) that the accused failed to make the payment of the amount of the cheque within 15 days of the valid legal notice of demand; and
f) that the complainant made a complaint against the accused within one month from the date on which the cause of action under clause (c) of the Proviso to Section 138 of the CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 5/10 NI Act accrued to him.
9 It is clear from the evidence that all the relevant documents have been duly proved on record by the complainant and otherwise also all the basic facts regarding signatures on the cheque, service of legal notice and non payment after service of notice have been admitted by the accused during his statement under Section 313 Cr.P.C. The ingredients of the offence U/s 138 NI Act from (b) to (f) as mentioned above have not been disputed on behalf of the accused and the same are otherwise also duly proved. The accused has raised a defence only in view of ingredient (a) and it is contended during his statement U/s 313 Cr.P.C that the cheque was in fact taken out by the complainant and after filling the particulars and putting his false signatures presented the same before the bank. 10 It has been argued on behalf of the accused that the complainant has failed to prove that the cheque in question was given in discharge of liability, rather the said cheque was taken out by the complaint from the shop which and was presented after manipulating the same. In this regard it is to be noted that the accused has levelled mere allegations of theft against the complainant. He has not led any CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 6/10 evidence in the form of Police complaint or intimation to the bank regarding theft of the alleged cheque. Mere allegation does not suffice his alleged innocence rather he has to come up with solid and plausible evidence. Moreover, in view of the material available on record, statement of the accused U/s 313 Cr.P.C and the provisions of Negotiable Instruments Act, such a contention is found to be devoid of merits.
11 It is further to be noted that during the course of cross examination of CW1 on behalf of the accused, the stand taken by the accused is different from what he has taken during his statement U/s 313 Cr.P.C. It is the defence of the accused during the course of cross examination that the alleged cheque was given as a security whereas the accused alleges against the complainant during his statement U/s 313 Cr.P.C that the cheque in question was stolen by the complainant which was manipulated and presented for encashment. From these two contradictory averments, an inference can easily be drawn that the accused is trying to save his skin from the abovesaid legal liability. The onus was on the accused to prove his innocence but he has miserably failed in this regard and the two stands taken by the accused CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 7/10 make the defence of the accused sham and bogus. 12 Furthermore, if the story of the accused that the cheque in question was taken out by the complainant and after manipulation presented the same before the bank for encashment, is assumed, for a while, to be true, the same does not raises doubt against the case of the complainant because if it was so, the complainant might have filled better amount than mere Rs.10,000/.
13 As per Section 139 of the NI Act, it has to be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability. There is legal presumption that the cheque was issued for discharging a liability and such presumption can be rebutted by the person who drew the cheque in dispute but such a presumption operating in favour of the complainant has not been rebutted by the accused by any reliable means.
14 The contradictions and discrepancies referred by Ld. Defence Counsel are minor and natural. There may be some minor variations but the same are very natural in nature and much CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 8/10 importance cannot be given to the same as the same do not go to root of the cause. The contention of the Ld. Counsel for the accused does not survive on this aspect as it is settled principle of law that minor contradictions and discrepancies do creep in the statement of prosecution witnesses. In this regard, reliance can be placed on 'Mahmood Vs. State' 1991 RLR 287 wherein following observations have been made : "Minor contradictions are bound to occur as human memory is likely to fade due to lapse of time. Description of occurrence depends on power of observation, power of retention and power of reproduction.
Ancillary matters, unconnected with the case have no effect. Discrepancies, which do not go to the root of the case, cannot be given weight or undue importance. These are bound to occur even in the statement of truthful and honest witness. Discrepancies occur due to memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. If they do not touch the core of the case, they be ignored."
15 In view of above discussions, I am of the view that the CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 9/10 complainant has successfully proved a case for the offence punishable U/s 138 NI Act against the accused beyond reasonable doubt. Hence accused Rajesh Kumar is held guilty and convicted for the said offence. Let him be heard on the quantum of sentence. Announced in the open Court Today on 30.05.2012 (SANJAY JINDAL) JSCC/ASCJ (NW)/Rohini Courts Delhi CC No. 1895/10/05 Bakshi Sunder Singh Vs. Rajesh Kumar 10/10