Delhi District Court
Amit Kumar vs Varinder Kalra on 21 December, 2018
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 19799/2016
Amit Kumar
S/o Sh. Padam Gupta
R/o 5-A, Double Storey,
Vijay Vihar, New Delhi ............Complainant
Versus
Varinder Kalra
S/o Late Sh. H.B. Kalra
R/o 4/51-A, Moti Nagar,
Near Fun Republic Cinema,
New Delhi .............Accused
JUDGMENT
(1) Name of the complainant, : Amit Kumar
parentage and address S/o Sh. Padam Gupta
R/o 5-A, Double Storey,
Vijay Vihar, New Delhi.
(2) Name of accused, : Varinder Kalra
parentage and address S/o Late Sh. H.B. Kalra
R/o 4/51-A, Moti Nagar,
Near Fun Republic Cinema,
New Delhi.
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 15.12.2007
(6) Date of conclusion of arguments : 10.12.2018
(7) Date of Final Order : 21.12.2018
Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 1
(8) Final Order : Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That the accused approached the complainant in the month of August 2007 for a loan of Rs.4,25,000/- as he was facing financial crisis. The complainant advanced the said amount to the accused in cash in the month of August 2007 after arranging the same from his relatives, friends and from his personal savings. After receiving the said amount, the accused issued a post dated cheque bearing no. 151198 dated 28.09.2007 for a sum of Rs.4,25,000/- drawn on Punjab National Bank, New Rajender Nagar, New Delhi-110060 in favour of the complainant. On the assurance of accused, the complainant presented the said cheque, however, it was returned unpaid with remarks "funds insufficient" vide returning memo dated 05.10.2007. Complainant sent a legal notice dated 02.11.2007 to the accused through his counsel by way of registered A.D. which was duly served upon the accused. Despite receiving of notice, the accused neither paid the cheque amount nor gave any reply to the notice. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In pre-summoning evidence, documents viz. cheque bearing no. 151198 dated 28.09.2007 for a sum of Rs.4,25,000/- drawn on Punjab National Bank, New Rajender Nagar, New Delhi-110060 as Ex. PW1/1, cheque returning memo dated 05.10.2007 as Ex. PW-1/2, legal notice dated 02.11.2007 as Ex. PW-1/3 & postal receipt as Ex. PW-1/4 are placed on record.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 05.03.2013 to which he pleaded not guilty and claimed trial. The accused took the defence that the complainant is a stranger to him. He alleged that his blank signed cheque i.e. cheque in question had been lost from his scooter and he lodged a complaint regarding the same.
5. Thereafter, the complainant has examined himself as CW-1. During cross-examination, Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 2 the complainant stated that he knows the accused since the year 2005-06. He also stated that in the month of August 2007, he gave Rs.4,25,000/- in cash to the accused as a friendly loan but no agreement was executed regarding the same. He also stated that the said amount was given for a period of one month without interest on the request of one Sh. Gunjan Patil. He also stated that he has not disclosed the loan in his ITRs. He also stated that he arranged from the sale proceeds of property bearing no. D-5A, Ground Floor, Single Storey, Vijay Vihar, New Delhi. He denied the suggestion that there was no relationship with the accused. He denied the suggestion that he has misused the cheque in question. He denied the suggestion that he has not shown the loan given to the accused in his ITRs as he has not advanced loan to him. He denied the suggestion that he has filed the case at the behest of Gunjan Patil. He denied all the other suggestion of the accused.
6. On 28.08.2017, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him. However, he denied all the allegations against him. He preferred to lead defence evidence. He examined himself as DW-1 and deposed that he has signed certain blank papers and cheque book to settle the dispute with his family members which arose after the death of his father in September 2005. He also stated that when he went to Punjab National Bank, Rajender Nagar, he noticed that blank papers as well as blank signed cheque books were missing from his scooter. He also stated that he lodged a police compliant Ex. DW-1/1(OSR) in PS Rajender Nagar and published a notice in newspaper regarding his lost cheque books. He also stated that the complainant is a stranger and there is no liability towards him. He also stated that he has been implicated in a false case.
During cross-examination, he stated that he did not lodge any police complaint against the complainant when he forced/threatened him to enter into settlement agreement in Mediation Centre, Tis Hazari Courts. He volunteered to state that since there was no witness, he did not lodge any complaint against the complainant. He also stated that he has not given stop payment instructions to his bank. He admitted that he has not mentioned serial numbers of his cheques in the police complaint dated 13.07.2007 Ex. DW-1/1. He also stated that he has not taken any loan from his bank for settlement of dispute with his family members. He denied the suggestion that he has given a false notice/report regarding his lost cheque book in order to defraud several persons/creditors. He denied all other suggestions given by Ld. Counsel for the complainant.
7. Thereafter, final arguments were addressed on behalf of both the parties.
Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 3
8. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. 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) 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.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - 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".
11. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 4 and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
13. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence.
14. In the present case, the accused has admitted that the cheque in question bear his signatures. Reference can be made to Judgment of Apex Court in Rangappa v. 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 under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
15. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was not given in discharge of any liability is not sufficient to rebut the presumption of law.
16. The accused has taken the defence that the complainant is a stranger to him and he has Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 5 not borrowed any amount from him. He also alleged that his cheque book comprising cheque in question was misplaced by him and he lodged a police complaint Ex. DW-1/1(OSR) in PS Rajender Nagar regarding the same. In the absence of cogent evidence, the bare statement of the accused stated that the cheque in question was misplaced by him can not be accepted as gospel truth. The accused has placed on record copy of his complaint Ex. DW-1/1 regarding his lost cheque books. A bare perusal Ex. DW-1/1 would show that the accused has not mentioned the number of lost cheques in the complaint. He has also not stated anywhere number of cheque books issued by the bank at that time. The accused has not mentioned number of cheque leaves which were there in the cheque books when they were lost. It is pertinent to note that the reason for dishonour is funds insufficient and thus, it shows that there is no intimation to the bank to stop the payment of cheque in question. The accused has not given any explanation as to why he has not issued stop payment instructions to the bank. He has also not explained as to why he remained silent when the complainant has misused his lost cheque. The accused is government officer and he is not expected to remain silent that to when a complaint has been filed against him on the basis of alleged stolen cheque. The accused has not examined any of his family members to prove his visit to Punjab National Bank, Rajender Nagar for availing loan for settlement of dispute. The accused has also not pursued his complaint lodged in PS Rajender Nagar after the filing of present case. The complaint Ex. DW- 1/1 is a vague complaint and thus, the defence of the accused that his cheque in question was lost does not inspire confidence of the court. Accused has cross-examined the complainant but nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unrebutted. No effective defence has been put forth by the accused.
17. It was argued by Counsel for the accused that the complainant has failed to prove sources of funds to advance loan of such a huge amount. It was also argued that the complainant has not placed on record any agreement or receipt to show that the sum of Rs.4,25,000/- was advanced to the accused. It was also argued that the complainant has not disclosed the loan given to the accused in his ITRs and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. Failure to disclose the loan in the ITRs and non filing of documents are not fatal to the case of the complainant. For this, reliance be placed on one judgment Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that "para 24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 6 corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.". Thus, there is no force in the submission of Counsel for the accused.
18. It was also argued by Ld. Counsel for the accused that there are material contradictions in the stand taken by the complainant. He pointed out that in the legal notice, it is alleged by the complainant that the accused was his childhood friend whereas during cross-examination, the complainant stated that he knows the accused since year 2005-06. It was also pointed out by him that in the complaint, the complainant has alleged that the loan amount was arranged by him from his relatives/friends and from his personal savings whereas during cross-examination he stated that the loan amount was arranged from the sale proceeds of a property sold by him. This court is of the opinion that the said contradictions are not sufficient to run down the credibility of the complainant's case. The complainant was cross-examined in the year 2015 in respect of the transaction pertaining to year 2007 and thus, some lapses are bound to occur in the testimony. Moreover, considering the presumption under Section 139 of the Act and overall facts and circumstances of the case, the scale of balance tilts in favour of complainant.
19. In view of the above, this court is of the considered opinion that the accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. The complainant has led cogent evidence to prove his case. Therefore, complainant has successfully proved his case beyond reasonable doubt.
20. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
21. Let the accused be heard on quantum of sentence.
22. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT RAJPOOT Date: 2018.12.21 18:56:43 +0530 ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT) TODAY i.e. 21st DECEMBER 2018 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI Amit Kumar v. Varinder Kalra CC No. 19799/2016 Page no. 7