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Delhi District Court

Rattan Kumar vs State on 21 December, 2018

         IN THE COURT OF SURESH KUMAR GUPTA
             ADDITIONAL SESSIONS JUDGE­04
       & SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
                   COURTS: NEW DELHI

CA No. 331 of 18

Rattan Kumar
S/o Sh. Yoginder
R/o C­90, Block­C,
Saurabh Vihar,
Delhi - 44                                         .......... Appellant

          Vs.

1.      State
        (Through NCE of Delhi)

2.      Chhote Lal
        S/o Sh. Bhagau Ram,
        R/o G­201, Jaitpur Vistar,
        Badarpur, New Delhi­44                     .......... Respondents

Instituted on : 25.07.2018
Argued on : 14.12.2018
Decided on : 21.12.2018
                                    JUDGMENT:

1 The appellant has impugned the judgment dated 14.05.2018 vide which he has been convicted u/s 138 Negotiable Ratan Kumar & Ors. v. State - CA No. 331 of 2018 1 of 24 Instruments Act and order on sentence dated 28.06.2018 vide which he is sentenced to undergo SI for one year and six months with compensation of Rs.17 Lakh and in default to undergo SI for four months.

2 The appeal is filed on the grounds that limitation to file the complaint will arise from the date of first presentation of the cheque in the bank. The respondent has again presented the cheque on 30.5.2018 to the bank to bring the case within limitation. The legal notice was never served upon him as registered envelope was not delivered to him. Iqrarnama and vachanpatra are the forged and fabricated documents. The evidence has not been properly appreciated. Hence, this appeal. 3 Notice of the appeal is issued to the respondent. 4 The facts of the case are like this. The respondent has filed a complaint u/s 138 of Negotiable Instruments Act (herein after referred to as Act) with the allegations that the appellant has Ratan Kumar & Ors. v. State - CA No. 331 of 2018 2 of 24 been known to him since long through his common friend. In January­February 2012 he wanted to purchase a suitable house for him upon which appellant told that he knows many persons who intend to sell their property in Delhi and NCR. In March, 2012 he has finalized a deal to purchase a property at Badarpur through the appellant. He has managed to arrange Rs. 12 lakh in April, 2012 through the sale of two plots. He has handed over Rs. 12 lakh to the appellant in the presence of his common friend who assured to return back the money within six months in case he fails to manage the property for him. The appellant failed to find any property for him and kept on extending the time limit. The cut off date was taken as December, 2012 but in vain. In January, 2013 the appellant has felt sorry to keep his words and assured him to wait till March, 2013. The appellant has ultimately issued the cheque from his proprietorship firm M/s Geeta Enterprises for a sum of Rs. 12Lakh drawn on HDFC Bank Ltd. Ratan Kumar & Ors. v. State - CA No. 331 of 2018 3 of 24 in his favour. The said cheque on presentation to the bank twice was dishonoured with the remarks "insufficient funds". On 3.6.2013 a legal notice was sent to the appellant by speed post and RAD at the correct address. The notice by speed post was delivered to the appellant but RAD was received back with the report "refused". The appellant has not made the payment despite the receipt of notice. Hence, this complaint. 5 The appellant was summoned u/s 138 of the Act after recording pre­ summoning evidence. The appellant put his appearance.

6 Notice of accusation for offence u/s 138 of the Act was framed against the appellant. He has pleaded not guilty to the notice and claimed trial. He has taken the plea that he gave two cheques including blank signed cheque in question and blank signed paper to Ajay Kumar from whom he had borrowed Rs. 70,000/­. He is not liable to pay anything to the respondent. Ratan Kumar & Ors. v. State - CA No. 331 of 2018 4 of 24 7 The respondent has examined two witnesses. The evidence of the respondent was closed.

8 The statement u/s 313 Cr.PC of the appellant was recorded wherein he has taken the plea that he has no dealings with the respondent. He has given two blank signed cheques including cheque in question to Ajay Kumar from whom he has borrowed Rs. 70,000/­. He has put his signature across the ticket on Ex. CW1/1 at the time when it was blank. The respondent has filled it. He has not received the legal notice. He has examined three witnesses in defence evidence.

9 Ld. Trial Court after hearing the Ld. Counsel for the parties and perusing the record has convicted and sentenced the appellant.

10 The respondent has examined two witnesses including himself as CW1. He has filed his affidavit Ex. CW1/A in his examination in chief wherein he has corroborated the Ratan Kumar & Ors. v. State - CA No. 331 of 2018 5 of 24 version of complaint as set out in the beginning while briefing the facts. Ex. CW1/D1 is the iqrarnama for the sale of property by the appellant and his brother in favour of Chander Kumar and a sum of Rs. 3 lakh was taken as an earnest money out of the total amount, Ex. CW1/1 is the vachnapatra, Ex. CW1/2 is the cheque in question, Ex. CW1/3 & 4 are the cheque returning memos, Ex. CW1/5 is the legal notice dated 3.6.2013, Ex. CW1/6 is the postal receipt, Ex. CW1/9 is the registered envelope with AD card and Ex. CW1/10 is the tracking report. During cross­examination he stated that he has handed over the amount in presence of Gyani. Ajay Kumar Sharma was not present at the time of transaction. The appellant has been his friend for the last 7­10 years. The plot located at C Enclave, 100 meters from the boundary of Delhi in Haryana was sold vide iqrarnama Ex. CW1/D1. The suggestion is denied that iqrarnama was cancelled later on. Ex. CW1/1 was got typed by the appellant. He does not know Subodh Jaiswal R/o A­ Ratan Kumar & Ors. v. State - CA No. 331 of 2018 6 of 24 333, Jaitpur. The suggestion is denied that cheque in question is out of the two cheques given by the appellant to Ajay Sharma alongwith one blank signed cheque or he has stolen cheque in question as well as Ex. CW1/1 from the office Ajay Kumar Sharma and thereby committed the fraud.

11 CW2 Bittoo Kumar has filed his affidavit Ex. CW2/2 wherein he stated respondent is running a shop of electrical goods at Jaitpur. He is an electrician and frequently used to visit the shop of respondent. The appellant also used to visit the shop of the respondent. He came to know in general conversation that respondent has given Rs. 12 lakh to the appellant to buy some property. The appellant has given cheque and some papers to the respondent in his presence as appellant told that he is unable to arrange the property. During cross­examination he stated that he has worked as a helper with the respondent for the last 6­7 years but now he has left the job. He was told by the respondent that he Ratan Kumar & Ors. v. State - CA No. 331 of 2018 7 of 24 has given Rs. 12 lakh to the appellant to purchase a plot. This fact was told around 4 years ago. The cheque and one paper were given around 4 years ago.

12 The appellant has appeared as DW1. He has filed his affidavit Ex. DW1/A wherein he stated that he has conversation with the respondent w.r.t. blank cheque number 716491 which he has handed over to Ajay Kumar Sharma against a personal loan of Rs. 70,000/­. He has recorded the conversation Ex. DW1/1 done with the respondent and got it typed. CD was prepared. During cross­examination he stated that he has never met the respondent prior to the present case. Mark DW1/1 is the conversation held in June 2013 from his mobile No. 8010543551. He does not have this mobile number with him. He does not remember the mobile number of the respondent. Ex. CW1/1 bears his signature at point A but he has signed on blank paper. Ex. CW1/2 bear his signature at point A but this cheque was given to Ratan Kumar & Ors. v. State - CA No. 331 of 2018 8 of 24 Ajay Kumar. He has not received any notice regarding dishonour of the cheque. There was no direct conversation between him and the respondent. The respondent used to pressurize him to ask Ajay Kumar to talk to him and then he will return the document. He came to know about the present case in October­November, 2013. He has received an SMS regarding dishonour of cheque in April­May, 2013 and lodged the complaint regarding misuse of cheque.

13 DW2 Nagender Singh, PRO, Post Office, Kalkaji stated that he has brought the record pertaining to the registered post and speed post which is Ex. DW2/A. Ex. DW2/B is the letter dated 6.2.2017 of Postmaster. The cross on Ex. CW1/9 means that the envelope was not delivered to the addressee as the address was incomplete.

14 DW3 Subodh Kumar stated that appellant is his friend. In February, 2012 Ajay Kumar Sharma has given a Ratan Kumar & Ors. v. State - CA No. 331 of 2018 9 of 24 personal loan of Rs. 70,000/­ to the appellant upon which appellant has given two cheques and a blank paper having half signature on paper and half on the revenue stamp. During cross­ examination he stated that he has met Ajay in 2001who has been missing for the last one year. He does not remember the cheque numbers given by the appellant to Ajay. The cheques were signed but blank. He came to know about the present case in 2013 from the appellant. The suggestion is denied that he is deposing falsely in favour of appellant being his relative. 15 I have heard Ld. Counsel for the appellant and perused the record as Ld. Counsel for the respondent no. 2 did not turn up to address the arguments.

16 In order appreciate the submissions of the Ld. Counsel for the parties it is desirable to go through the relevant provisions.

Ratan Kumar & Ors. v. State - CA No. 331 of 2018 10 of 24

118. Presumption 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or tranferred for consideration;

138. Dishonour of cheque for insufficiency, etc., of funds in the account. ­ where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless ­ Ratan Kumar & Ors. v. State - CA No. 331 of 2018 11 of 24

i) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

ii) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and iii), the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation. ­ For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.

139. Presumption in favour of holder. ­ It shall be presumed, unless the contrary is proved, that the holder of a cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability.

13. Ordinary in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section Ratan Kumar & Ors. v. State - CA No. 331 of 2018 12 of 24 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.

In K. N. Beena v. Muniyappan, 2001 (2) ALD (Crl.) 824 the Supreme Court observed that it would be erroneous approach in case the burden is cast on the prosecution/complainant to prove that the cheque was issued for a debt or liability. The Supreme Court further observed that the accused had to prove in the trial by leading cogent evidence that there was no debt or liability and that the accused not having lead any evidence could not be said to have discharged the burden cast on him.

In Rangappa v. Mohan, AIR 2010 SC 1898 also the Supreme Court held that existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the Act.

17 The presumption u/s 139 of the Act is a rebuttal presumption and the standard of proof required to rebut the said presumption is on the preponderance of probability. The initial burden is on the appellant to probablise his defence. Ratan Kumar & Ors. v. State - CA No. 331 of 2018 13 of 24 18 The appellant is supposed to disclose his defence at the time when notice of accusation (NOA) is framed as observed in Rajesh Aggarwal Vs. Y. K. Goel, 2010 VII AD (DELHI) 57 became offence u/s 138 of the Act is a document based offence. 19 It is clear from the testimony of CW1 that he alongwith his brother has executed an agreement to sell Ex.CW1/D to sell his jointly owned property with Chander Kumar and took Rs. 3 Lac as an earnest money. He was in search of the property and appellant has assure him to show a good property as a result he has handed over Rs. 12 Lac to the appellant in the month of April, 2012. The appellant has failed to arrange any property for him and ultimately issued a cheque Ex.CW1/2 to him which was dishonored on presentation to the bank with the remarks "insufficient funds". The legal notice Ex.CW1/5 was issued to the appellant by post. The notice by speed post was served upon the appellant but notice by RAD was Ratan Kumar & Ors. v. State - CA No. 331 of 2018 14 of 24 received back.

20 The argument of the appellant is that he has not received any legal notice. This does not inspire confidence. 21 It is explicitly made clear under clause C of Section 138 of the Act that notice gives an opportunity to the drawer of the cheque to make payment within 15 days of the receipt of such notice sent by the drawee. Even if the drawer has failed to make the payment within 15 days of receipt of such notice as provided u/s clause C, the drawer of cheque has committed an offence u/s 138 of the act.

22 In the instant case, the notice Ex.CW1/5 was sent by speed post and registered acknowledgment due (RAD) to the appellant. The RAD is received back unserved. The RAD bears the address C­90, Block­C, Saurabh Vihar, Delhi­44. The appellant has reflected the same address in the memo of parties filed with appeal. The appellant has nowhere disputed the Ratan Kumar & Ors. v. State - CA No. 331 of 2018 15 of 24 address on RAD. It has been held by Hon'ble Apex Court that when a notice is sent by registered post and is returned back with the postal endorsement "refused" or "not available in the house"

or "house is locked" or "shop closed" or "addressee not in station", due service is presumed. Support is drawn from N. Parmeshwaran Unni Vs. G. Kannan and Anr., 2017 SCC Online SC 293. The notice was sent to the appellant at the correct address but same is received back with the report address is incomplete. The address on the notice is not disputed. The notice sent by speed post is not received back. In view of all these facts there is due service of the notice and argued that notice is not served is without any merits.

23 No reply to the notice was given. The defence is taken at the time of giving reply to the notice. The non­reply to the notice means that he has no defence at all. Ratan Kumar & Ors. v. State - CA No. 331 of 2018 16 of 24 24 The argument is raised that iqrarnama has been cancelled later on. The defence does not inspire confidence. Mere putting of suggestion to CW­1 is not enough to show that iqrarnama was cancelled by the respondent. The appellant could have summoned the purchaser shown in the iqrarnama that he has cancelled the iqrarnama later on. No such step was taken by the appellant for which adverse inference has to be drawn against him.

25 The argument is raised that the appellant has taken a loan of Rs. 70,000/­ from one Ajay Sharma upon which two blank signed cheques and one signed blank paper were given to him against the loan. The argument does not hold water. 26 Vachanpatra dated 06.06.2012 Ex.CW1/1 was executed by the appellant in favour of respondent which shows that he has taken advance of Rs. 12 Lac from the respondent for arranging the land for the respondent within 6 months failing Ratan Kumar & Ors. v. State - CA No. 331 of 2018 17 of 24 which he will return back the said amount with interest. The said vachanpatra bears his signature at point­A. CW­1 has denied the suggestion that he has stolen Ex.CW1/1 from the office of Ajay Kumar.

27 No plea regarding stealing this document from the office of Ajay Kumar was taken in notice u/s 251 Cr.PC and statement u/s 313 Cr.PC. No explanation is forthcoming why such plea was not raised in notice u/s 251 Cr.PC and statement u/s 313 Cr.PC which calls for an adverse inference against him. No complaint was ever lodged by Ajay Kumar that the said document is missing from his office. The appellant has not taken any steps for the cancellation of Ex.CW1/1. The argument that he did not sign vachanpatra does not hold water. 28 The two cheques including cheque in question were allegedly handed over Ajay Kumar Sharma. The appellant has examined himself and DW­3 to this effect. The defence does not Ratan Kumar & Ors. v. State - CA No. 331 of 2018 18 of 24 inspire confidence. DW­3 has nowhere deposed about the number of cheques allegedly given to Ajay Kr. Sharma by the appellant. No question or suggestion is put to CW­1 by the appellant that he has handed over two cheques including cheque in question to Ajay Kumar Sharma in the presence of DW­3. His own testimony does not show that he has handed over the cheque in question to Ajay Kumar Sharma in the presence of DW­3. It shows that DW­ 3 has been introduced later on by him for the reasons best known to him. No evidence has come on record that two cheques including cheque in question were handed over to Ajay Kr. Sharma.

29 One iqrarnama dated 05.02.2012 is placed on record by the appellant which shows that he has handed over two cheques including cheque in question and one plain paper bearing signature and revenue stamp to Ajay Kr. Sharma. The said ikrarnama has not been proved by the appellant for the reasons Ratan Kumar & Ors. v. State - CA No. 331 of 2018 19 of 24 best known to him. The appellant cannot draw any support from this document.

30 Ajay Kr. Sharma is the best witness for the appellant. His examination would have advanced the defence of appellant. His non examination calls for an adverse inference against the appellant.

31 The cheque Ex.CW1/2 has been dishonored. The testimony of DW1 shows that he has received an alert via SMS in April - May, 2013 from the bank regarding dishonor of cheque. It is quite strange that he did not go to the bank to inquire when he has not issued a cheque of Rs. 12 Lac to anyone. He should have lodged a complaint then and there but no such action was taken by him. He has lodged a complaint with the police on 03.02.2014. Moreover, the present complaint has been filed on 17.07.2013. The complaint was given after the filing of the complaint and his appearance in the Court. There is an extreme delay in lodging the Ratan Kumar & Ors. v. State - CA No. 331 of 2018 20 of 24 complaint for which no explanation has come on record. 32 The appellant has placed on record one transcript Ex.DW1/1of the conversation which has allegedly taken place with the respondent. He has also prepared one CD. The appellant cannot draw any support. It nowhere shows that he has done telephonic conversation with the respondent on a particular mobile number. The date of conversation is nowhere reflected in the transcript. The primary evidence is not placed on record. The transcript is not accompanied by Section 65­B of Indian Evidence Act. The transcript is not proved in accordance with the law as such same is no help to the appellant.

33 The appellant has admitted his signatures on the cheque as well as vachanpatra. The cheque has been issued from the account of the appellant. The appellant has to rebut the presumption on the basis of preponderance of probability. The appellant has failed to rebut the presumption u/s 139 of the Act Ratan Kumar & Ors. v. State - CA No. 331 of 2018 21 of 24 even from the material brought on record by the respondent. 34 The entire evidence on the file shows that respondent has proved all the ingredients incorporated u/s 138 of the Act. The appellant has been rightly held guilty and convicted u/s 138 of the Act.

35 I do not find any infirmity with respect to the conviction recorded u/s 138 of the Act.

36 Ld. Counsel for the appellant submitted that appellant is 47 years old who has family to support including wife, two children and aged mother. He further submitted that appellant is the sole bread earner of his family. He further submitted that his family will be badly affected in case appellant is sent to the Jail. He further submitted that a lenient view be taken in the favour of appellant.

37 Appellant has not made the payment of the cheque in question to the respondent. He has not even shown his inclination Ratan Kumar & Ors. v. State - CA No. 331 of 2018 22 of 24 to make the payment of the cheque in question to the respondent. The cheque pertains to the year 2013. The cheque bouncing cases are on the increase. The drawer of the cheque remains under the impression that he can get away with imposition of only fine. The deterrent punishment is required so that drawer of cheque should honour the cheque once it is issued.

38 Keeping in view the fact that appellant is the sole bread earner of his family which will be affected, a lenient view is taken in favour of the appellant. The sentence imposed by Ld. Trial Court is on the higher side which is accordingly modified. 39 Hence, the appellant is sentenced to undergo SI for 6 months with the direction to pay compensation of Rs. 17 Lacs and in default of payment of compensation to undergo SI for 3 months.

40 The appeal is accordingly disposed of. The appellant is taken into custody in order to serve the sentence as modified by Ratan Kumar & Ors. v. State - CA No. 331 of 2018 23 of 24 this Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi.

41 Attested copy of the judgment be supplied to the appellant free of cost.

42 TCR record alongwith copy of the judgment be sent to the Ld. Trial Court.

43 Appeal file be consigned to record room. announced in the open court on 21st December, 2018 (SURESH KUMAR GUPTA) Addl. Sessions Judge­04 & Spl. Judge (NDPS) South East, Saket Courts,New Delhi Ratan Kumar & Ors. v. State - CA No. 331 of 2018 24 of 24