Delhi District Court
Sanjay Kumar Girdhar vs . Anil Kumar Jain Cc No. 3739/17 Page No. 1 ... on 19 December, 2019
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-005295-2017
CC No. 3739/2017
Sanjay Kumar Girdhar,
S/o Late Bhagwan Dass,
r/o 699A, Nawada Bazar,
Najafgarh, New Delhi
............Complainant
Versus
Anil Kumar Jain
S/o Sh. S.K.Jain,
R/o BE-402, Gali No.7,
Hari Nagar, New Delhi-110064
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 07.03.2017
(4) Date of conclusion of arguments: 03.12.2019
(5) Date of Final Order : 19.12.2019
(6) Final Order : Convicted
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JUDGMENT
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:-
The complainant alleges that he and the accused are well known to each other since last many years and had friendly relations. It is alleged that the complainant advanced friendly loan of an amount of Rs. 10,00,000/- to the accused in March, 2016 and accused promised to repay the same by first week of January 2017. The accused in discharge of his loan liability gave one post dated cheque of Rs. 10,00,000/- i.e. cheque in question bearing no. 826823 dated 10.01.2017 drawn on UCO Bank, Commercial Centre, Mayapuri, Delhi to complainant towards repayment of loan, with an assurance of its encashment.
The complainant presented the cheque in his account maintained at Allahabad Bank , Najafgarh, Delhi, which was returned with the remarks "Kindly contact drawer/drawee bank and please present again" vide bank return memos dated 12.01.2017 and 27.01.2017. Thereafter, complainant served a legal notice dated 31.01.2017 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record, original cheque of Rs.10,00,000/- i.e. cheque in question bearing no. 826823 dated 10.01.2017 drawn on UCO Bank, Commercial Centre, Mayapuri, Delhi as Ex. CW-1/A, cheque returning memos dated 12.01.2017 and 27.01.2017 as Ex. CW- 1/B (colly), legal demand notice dated 31.01.2017 as Ex. CW-1/C, receipts of speed post as Ex. CW-1/D, courier receipt as Ex. CW-1/E and tracking report of Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 2 of 11 courier as Ex. CW-1/F.
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 26.05.2017 to which he pleaded not guilty and claimed trial. He admitted his signature on the cheque in question, however denied filling in any of the remaining details. He stated that he did know the complainant and had not taken any loan of Rs. 10,00,000/- from him. He admitted receipt of legal notice.
5. The accused moved an application to cross-examine the complainant witnesses. Complainant also examined one Rakesh Khurana as CW-2. Both complainant i.e CW-1 and CW-2 were cross-examined by the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. The statement of accused under Section 313 Cr.P.C. was recorded on 14.12.2017 and 31.05.2019 in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice U/s 251 Cr.P.C. He stated that he had given one blank signed cheque for security purpose to one Vijay Sachdeva. They had transactions regarding a committee. The said cheque has been obtained by complainant from Vijay Sachdeva and misused to file the present case. He owed around Rs. 1,50,000/- to Vijay Sachdeva. He also denied asking for or taking any loan of Rs. 10,00,000/- in cash from complainant in office of and in presence of Rakesh Khurana. He visited office of Rakesh Khurana once or twice relating to business of committee. He did not give the cheque in question to complainant. He admitted receipt of legal notice.
6. Accused preferred to lead evidence in his defence and had examined himself as DW-1. The witness was cross-examined by counsel for complainant. The accused did not examine any other witness and vide his statement, defence evidence was closed.
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7. Thereafter, matter was listed for final arguments. Ld. Counsel for complainant filed written submissions on behalf of the complainant. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that accused admitted receipt of legal notice but he never gave reply to the same. He also argued that the accused did not produce said Vijay Sachdeva as a witness or any other evidence to establish his version regarding committee dispute. He also argued that accused never filed a complaint against the complainant for misuse of cheque in question. He also argued that complainant showed the proof of source of money from his bank account statement produced during his cross-examination. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, on behalf of accused, Ld. Counsel reiterated the submissions made by him in his plea of defence at the time of framing of notice under Section 251 Cr.P.C, in his statement under Section 313 Cr.P.C and in defence evidence that the accused did not know the complainant and had given the cheque to Vijay Sachdeva for committee purpose. Police complaint was also filed against Vijay Sachdeva and his associates. The cheque in question was misused by the complainant in connivance with Vijay Sachdeva. He argued that complainant was not aware as to details of family members of accused. He also argued that it was not possible that loan of such a huge amount was granted by complainant to accused under these circumstances. He argued that there was no written document of the loan. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 4 of 11 and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. 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 had 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.
11. 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 Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 5 of 11 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".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) 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 be rebutted 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].
13. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C. He did not deny his signature on the cheque either in cross-examination of complainant, or his statement U/s 313 Cr.P.C and also in defence evidence. 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."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 6 of 11 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. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
14. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he had advanced loan of Rs. 10,00,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
15. The principle defence taken by the accused as brought out from his statement U/s 313 Cr.P.C and his examination in chief as DW-1, is that he did not know the complainant and had no transactions with him. He had given the cheque in question to one Vijay Sachdeva as blank signed cheque as he owed him about Rs. 1 lakh to Rs. 1.5 lakh for transaction of committee. Vijay Sachdeva enquired his account number over telephone and filled in the same in the cheque and other details must also have been filled by him. He gave the cheque to Vijay Sachdeva in or about January-February 2016. He had also filed police complaint against Vijay Sachdeva, Rakesh Khurana, Ravinder Ahuja and Anil Khurana on 26.11.2016 for the threat to his life issued by them and threat to implicate him in false cases and to grab his property. The police complaint was Ex. DW-1/1 (colly). The cheque in question had been misused by complainant.
16. The accused placed on record police complaint filed against Vijay Sachdeva, Rakesh Khurana, Ravinder Ahuja and Anil Khurana on 26.11.2016 for the threat to his life issued by him and threat to implicate him in false cases and to Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 7 of 11 grab his property. The police complaint was Ex. DW-1/1 (colly). In the complaint it was submitted that Vijay Sachdeva forced the complainant to sign blank papers upon taking of loan of Rs. 5,00,000/- from him @ 2 % interest per month. The accused had repaid around Rs. 2,50,000/- in cash, however, due to non payment of interest recently Vijay Sachdeva and his associates had been threatening him as aforesaid.
17. However, perusal of evidence shows that said version of accused is not substantiated by any evidence. The accused did not produce any document or witness to show that cheque in question was given for any such committee or that any repayment was made in the alleged committee. Also there is no mention of cheque in question in the police complaint Ex. DW-1/1 filed by the accused. Even the alleged committee for which cheque was given is not mentioned in the complaint and there is only description of a loan taken from Vijay Sachdeva by the accused. However no document or proof of the alleged loan has been placed on record. The accused also admitted in his cross examination that he had not filed any complaint against the complainant even after receiving the legal demand notice.
18. It is also pertinent to note that the cheque in question has been dishonored twice vide cheque returning memo dated 12.01.2017 and 27.01.2017 for reason "Kindly contact drawer/drawee bank and please present again" (Ex. CW-1/B (colly) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned to accused even after repayment of amount regarding the committee to Vijay Sachdeva and dispute arising thereof for which police complaint dated 26.11.2016 (EX DW-1/1) was also filed against Vijay Sachdeva and other persons, stop payment instructions were not issued by accused to bank. In light of the above, the version of accused regarding issuance of cheque to Vijay Sachdeva for committee purpose which was misused is not credible.
19. Regarding the averment that cheque was given as blank signed cheque Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 8 of 11 which was misused by complainant, the same is also not a credible defence. Even if for the sake of argument, it is considered that the accused gave a blank signed cheque, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument 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 the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
20. Ld. Counsel for accused also argued that complainant did not have friendly relations with accused. Reliance has been placed on cross-examination of complainant wherein complainant stated that he did not know the family members of accused, other than his son who used to sit at shop of accused. Ld. Counsel also argued that complainant did not have the requisite sources to advance loan to accused. In cross-examination, complainant stated that the sources of funds for present loan was amount of Rs. 4,00,000/- to Rs. 5,00,000/- available with him in cash as rental income. Ld. Counsel for accused thus argued that these instances cast doubt on factum of loan and capacity of complainant to advance loan.
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21. However, these arguments of Ld. Counsel for accused are also devoid of any merit. Perusal of the evidence shows that though complainant stated that amount of Rs. 4,00,000/- to Rs. 5,00,000/- was available with him in cash as rental income, however no further question or suggestion was put to complainant to dispute the same. Complainant also stated that he also withdrew some amount from his bank account. Thereafter, cross-examination of complainant was deferred and he produced his bank account statement (Ex. CW-1/D-1), showing withdrawal of Rs. 10 lacs each on 11.02.2016 and 20.02.2016, i.e. total withdrawal of Rs. 20 lacs from his bank account. He stated that in March 2016, the present loan was advanced out of this withdrawn amount. However no question or suggestion could be put to complainant to dispute this position. Thus complainant has disclosed sufficient sources of funds to advance the present loan of Rs. 10 lacs.
22. Furthermore, merely because complainant knew only the son of accused and not his other family members, is not sufficient to rebut the statutory presumptions. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"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 passbook or to examine Chhotu as a witness in 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. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
In the present case also the defence taken by the accused is that he had given the cheque in question to Vijay Sachdeva for committee purpose. However he has failed to produce any material in support of his plea of defence.
23. The accused has admitted the receipt of legal demand notice Ex. CW-1/C in his cross-examination as DW-1. He also admitted receipt of legal notice in Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 10 of 11 notice under section 251 Cr.P.C. and statement under section 313 Cr.P.C. Thus the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
24. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
25. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
26. Let the convict be heard on quantum of sentence.
27. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date: 2019.12.19
14:51:56 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 19th DECEMBER 2019 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Sanjay Kumar Girdhar vs. Anil Kumar Jain CC No. 3739/17 Page no. 11 of 11