Delhi District Court
Anil Kumar Sharma vs Sunil Kumar Gupta on 12 September, 2018
1
IN THE COURT OF MS. SNIGDHA SARVARIA : MM : NI ACT-03
(CENTRAL) : TIS HAZARI COURTS : DELHI.
CC No.518146/16
DATE OF INSTITUTION : 29.01.1996
DATE OF JUDGMENT : 12.09.2018
IN THE MATTER OF:
Anil Kumar Sharma
S/o Late Sh. S. N. Sharma
13/8, Shakti Nagar,
Delhi110007.
........Complainant
VERSUS
Sunil Kumar Gupta
S/o Sh. Sushil Kumar Gupta
14/8, Shakti Nagar,
Delhi110007.
..........Accused
JUDGMENT:
Brief facts
1. The brief facts of the present complaint filed U/s. 138/142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") are that the accused, who is the neighbour of the complainant used to borrow money from the complainant from time to time alleging his urgent requirements for immediate cash. The complainant who knows the accused used to help him in order to allow the accused to tide over his immediate cash requirements. On settling accounts by the complainant with the accused, it was found that the accused owed a sum of Rs. 1,50,000/ to the complainant. The accused in discharge of his liabilities, issued a cheque bearing no. 44189 dated 20.06.1995 for Rs. 1,50,000/ CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 2 drawn on Delhi Nagrik Sehkari Bank Ltd., Clock Tower, Delhi having bank clearing arrangements through State Bank of India, Clock Tower, Delhi in favour of the complainant.
2. The complainant presented the said cheque for payment through his bank, namely Canara bank, Birla Mills, Kamla Nagar, Delhi. However, the complainant was informed by his bank that the said cheque was returned dishonoured for nonpayment due to lack of funds for the reason 'refer to drawerInsufficient funds'. The complainant immediately informed the accused about the said nonpayment. The accused thereupon requested the complainant to represent the cheque and assured that the cheque would be honoured and the complainant will get his payment. Acting on the said request and assurance of the accused, the complainant again presented the said cheque for payment through his bank namely Canara bank, Birla Mills, Kamla Nagar, Delhi on 16.12.95. However, the complainant was once again informed by his bank vide their memo dated 20.12.1995 that the said cheque had been returned dishonoured for non payment with the remarks 'refer to drawerInsufficient funds'. The complainant was also forwarded the cheque returning memo dated 19.12.1995 issued by Delhi Nagrik Shekari Bank Ltd., Clock Tower, Delhi on whom the cheque was drawn.
3. Thereafter, the complainant issued legal notice dt.21.12.1995 u/s 138 NI Act to the accused by registered AD / UPC. The accused intentionally did not accept the registered A/D letter containing the said notice. However, the copy of notice sent under UPC has not been received back by the complainant. The address of the accused is correct. The accused did not comply with the said notice and failed to make the said payment within 15 days of receiving the said legal demand notice and thereafter, complainant filed the present case. Therefore, it is stated that the accused is liable for the commission of the offence U/s. 138 of the NI Act.
CC No. 518146/2016Anil Kumar Sharma vs Sunil Kumar Gupta 3 Proceedings Before Court
4. The present complaint was received by way of assignment on 29.01.1996. Summons were issued against the accused. The accused entered appearance and Notice of accusation was framed against the accused on 08.05.1998 to which accused pleaded not guilty and claimed trial.
5. In support of its case, the complainant examined Mr. Surender Kumar from Delhi Nagrik Sehkari Bank Ltd, Sabzi Mandi as CW1; Mr. V.K. Arora from Canara Bank as CW2 and himself as CW3. The complainant witnesses proved the cheque bearing no. 44189 dated 20.06.1995 for Rs. 1,50,000/ drawn on Delhi Nagrik Sehkari Bank Ltd., Clock Tower, Delhi as Ex CW3/A; cheque returning memo as Ex CW2/A; covering memo given by Canara Bank as Ex CW1/A; Legal notice dated 21.12.1995 as Ex CW3/B; postal receipt as Ex CW3/C and UPC as Ex CW3/D and Ex CW3/E is undelivered envelope.
6. Statement of the accused under S. 281 CrPC was recorded on 10.07.2001. wherein he stated that he had never given the cheque in question to the complainant and same was stolen by the complainant for which he has also lodged a complaint with the police in the year 1995 and accordingly also intimated the bank vide UPC letter. He stated that he has not operated account no. 5287 since 1984. He stated that the complainant has filed forged and fabricated case and that since the complainant had friendly relationship therefore, was able to obtain the cheque in question. He denied his signatures on the cheque in question. He denied taking of loan from the complainant.
7. The accused examined Mr. Ishwar Mishra from Malka Ganj Post Office as DW1; accused himself as DW2 and Hc Phool Kumar as DW3. Defence evidence was closed on 07.07.2017.
8. It is essential to record that the original cheque alongwith specimen CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 4 signatures and other relevant documents bearing signatures of the accused vide order dated 29.01.2002 were sent to CFSL for expert opinion regarding whether the cheque in question had signatures of the accused but the said result as per ordersheet dated 06.09.2010 was sent to the court of Ms. Asha Menon, then LD. ASJ which was not kept on record by the Ahlmad of her court and thus upon directions of the Ld D & SJ, THC vide letter no. L7934/Compt./Vig. (H&Q)/F.29/15 dated 04.07.2015 for reconstruction of the file, the file/copy of the cheque in question already on record was reconstructed and same is reflected in order dated 24.09.2015. Also, as per letter no. BH183/2003/5995 dated 24.11.2003 of the office of the government of questioned documents the result qua the signature of the accused on the cheque in question remained inconclusive and some more documents were required bearing signatures of the accused contemporary to the cheque in question. Which documents were sent to CFSL but FSL result was not kept on record by the then Ahlmad.
9. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
Findings
10. The contention raised on behalf of accused that legal demand notice dated 21/12/1995 Ex CW3/B was not served is without any merit as the said legal notice was sent vide registered post and UPC was sent at the address 14/8, Shakti Nagar, Delhi110007, which address is mentioned in evidence of the accused recorded on 06/03/2017 and even otherwise it is not the defence of the accused that he did not reside at the address mentioned on the legal demand notice Ex CW3/B sent vide registered post/UPC and address mentioned in the evidence of the accused recorded on 06/03/2017. The Ad card was received back duly stamped. Therefore, in view of Section 27 of General Clauses Act, legal notice was deemed to be served at the correct address. Also, the said objection CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 5 cannot be taken at this stage in view of the decision in C.C. Alavi Haji v Palapetty Muhammad & Anr. (2007) 6 SCC 555, which states that in case, drawer of the cheque raises an objection that he never received Legal Notice U/s 138 of N.I. Act, he can within 15 days of the receipt of summons make payment of the cheque amount and in case, he does not do so, he cannot complain that there was no proper service of Legal Notice U/s 138 of N.I. Act. Hence, in view of the Judgment in C.C. Alavi Haji, the presumption of service of Legal Notice has arisen if not of the legal notice Ex CW3/B sent vide registered post/UPC then through issuance of summons by the court.
11. In Rangappa v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 6 the accused may not need to adduce evidence of his/her own. "
(emphasis added)
12. In view of the decision in Rangappa laid down by the Supreme Court, the presumption raised under Section 139 of the NI Act is of legally enforceable debt or liability and it is for the accused persons to raise a probable defence to rebut the presumption.
13. The defence raised by the accused is that the cheque in question belongs to the accused but he did not issue it. He stated that the cheque in question was stolen from his residence. He stated that the complainant and the accused were having friendly relations since childhood and were on visiting terms. He stated that the complainant stole the cheque in question from the residence of the accused. He stated that he has no liability/debt towards the complainant. He stated that he came to know about the cheque in question when he received summons from this court. He stated that he had intimated his bank about the theft of the cheque in question through regd. Post/UPC and placed on record UPC receipt dated 09.06.1995 as Mark D1. He stated that he also made a complaint to PS Roop Nagar about theft of his cheque vide letter dated 09.05.1995 Ex DW2/1. He denied signing and filling in the particulars on the cheque in question. He stated that the account no. 5287 of Delhi Nagrik Sahkari Bank Ltd. was not in operation since 1984. The passbook of the said account is marked as Mark D2.
14. As regards the defence raised by the accused that he did not fill the details in the cheque himself at this juncture it would be worthwhile to discuss the provisions under S. 20 and S. 118 of the Negotiable Instruments Act, which is as under:
20.Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 7 be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp.
The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:
(a) of considerationthat 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;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;
(d) as to time of transfer. that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stampsthat a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
15. Further, in Mojj Engineering Systems Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008) Delhi Law Times 579, the Hon'ble Delhi High Court had observed as under : "7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it. In Young Vs. Grote (1827) 4 Bing. 253 it was held that when a blank cheque is signed and handed over, it means the person signing it has given an implied authority to any subsequent holder to fill it up. Similarly, in Scholfield Vs. Lord Londesborough (18951899) All ER Rep 282 it was held that whoever signs a cheque or accepts a bill in blank, and then puts it into circulation, must necessarily intend that either the person to whom he gives it, or some future holder, shall fill up the blank which he has left. This common law doctrine was also affirmed by Justice Macnaghten in Griffiths Vs. Dalton [1940] 2 KB 264 where it was held that the drawer of an undated cheque gives a prima facie authority to fill in the date. This aspect has also been incorporated in Section 20 of the Negotiable Instruments Act, which deals with Inchoate Stamped Instruments. The Supreme Court in T.Nagappa Vs. Y.R.Murlidhar, (2008) 5 SCC 633 while discussing CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 8 the scope of Section 20 held that by reason of this provision, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under Section 482 Cr.P.C. to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of M.M.T.C. Ltd. and Another Vs. MEDCHL Chemicals and Pharma (P) Ltd. and Another,(2002) 1 SCC 234 held as follows:
"13.....the wellsettled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability."
The Court further held that:
"17. There is therefore 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 was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability."
16. From the aforesaid discussion, it is manifest that by reason of the provision under S. 20 NI Act, a right has been created in the holder of the cheque. Prima facie, the holder thereof is authorized to complete the incomplete negotiable instrument.
17. Despite opportunity having been given to the complainant to cross examine the accused, the complainant did not cross examine the accused. The testimony of the accused to the effect that the cheque in question belongs to the accused but he did not issue it; the cheque in question was stolen from his residence; the complainant and the accused were having friendly relations since childhood and were on visiting terms; the complainant stole the cheque in question from the residence of the CC No. 518146/2016 Anil Kumar Sharma vs Sunil Kumar Gupta 9 accused; he has no liability/debt towards the complainant; he came to know about the cheque in question when he received summons from this court; he had intimated his bank about the theft of the cheque in question through regd. Post/UPC and placed on record UPC receipt dated 09.06.1995 as Mark D1; he also made a complaint to PS Roop Nagar about theft of his cheque vide letter dated 09.05.1995 Ex DW2/1; he did not sign and fill in the particulars on the cheque in question; that the account no. 5287 of Delhi Nagrik Sahkari Bank Ltd. was not in operation since 1984 and that the passbook of the said account is marked as Mark D2 has remained unrebutted. The very fact that the complainant did not crossexamine the accused gives rise to an adverse inference against the case of the complainant under S.114 Indian Evidence Act.
18. In view of the aforesaid reasons, the court finds that the accused has been able to prove probable defence. Thus, now the burden shifted on the complainant to rebut the defence of the accused but the complainant did not disprove the case of the accused and the complainant has failed to rebut the defence of the accused.
19. In view of the foregoing discussion, the accused Sunil Kumar Gupta is acquitted of offences punishable under S. 138 NI Act.
Digitally signed by SNIGDHA SNIGDHA
SARVARIA
(Announced in open SARVARIA Date: 2018.09.12
Court on 12.09.2018 ) 17:16:18 +0530
(Snigdha Sarvaria)
MM/NI Act-03/Central.
12.09.2018
Judge Code: 0530
CC No. 518146/2016
Anil Kumar Sharma vs Sunil Kumar Gupta