Delhi District Court
Sh. Ramesh Chander Gupta vs Sunil Kumar on 18 September, 2012
In the Court of Sh. Manoj Kumar : Senior Civil JudgecumMetropolitan
Magistrate of New Delhi District at Patiala House Courts, New Delhi
C. C No. 4836/1/09 (Old no. 1365/1/05)
Unique ID No. 02403R0465002005
In the matter of:
Sh. Ramesh Chander Gupta
S/o late O. P. Gupta,
R/o TA208A, Tuglakabad Extension,
New Delhi110019 ....................Complainant
VERSUS
Sunil Kumar
S/o Sh. Jogender Prasad,
R/o 483A/13, Tuglakabad Extension,
New Delhi110019 ....................Accused
Date of Institution : 30.06.2005
Date of Arguments: 11.09.2012
Date of Judgment : 18.09.2012
COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881.
JUDGMENT :
The present case was received by way of transfer as per the order no. 145192/01/F.3(4)/MM dated 02.01.2009 passed by the learned District JudgeI and Sessions Judge, Delhi in pursuance of order no.
C. C. No. 4836/1/09 Page no. 1 of 12 25/DHC/Gaz./VI.E2(a) dated 22.10.2008 passed by the Hon'ble Delhi High Court. It shall be disposed of in compliance of the said orders.
2. This is a complaint under section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) made by complainant Mr. Ramesh Chander Gupta against accused Mr. Sunil Kumar stating that having taken loan of Rs.20,000/, Rs.50,000/ and Rs.14,000/ on different dates to discharge his debt the accused had issued three cheques bearing numbers 584908, 515475 and 447486 dated 03.4.2005, 18.4.2005 and 20.4.2005 respectively in the sum of Rs.20,000/, Rs.50,000/ and Rs.14,000/ respectively drawn on State Bank of India, DDA Flats, Kalkaji branch, New Delhi in favour of the complainant; that the complainant had presented the three cheques for encashment through his banker the Bank of Punjab Limited, Alaknanda Branch, New Delhi but the same returned dishonoured by the banker of the accused alongwith memoranda dated 02.5.2005 due to insufficient funds in the account of the accused; that a legal notice dated 14.5.2005 was sent by the complainant to the accused by registered post with AD whereby the accused was called upon to make payment against the three cheques within fifteen days of the receipt of the notice but despite receipt of the notice the accused did not make payment against the three cheques and thus has committed offence punishable under section 138 of Act 26 of 1881. It is further stated in the complaint that the accused be summoned, tried and punished for having committed offence punishable C. C. No. 4836/1/09 Page no. 2 of 12 under section 138 of Act 26 of 1881 in respect of the cheques.
3. The complaint was made on 30.6.2005 and was received by way of assignment on 11.7.2005. On 12.7.2005 after examination of the complainant under section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by way of an affidavit and having considered the contents of the affidavit and the documents filed alongwith the same my learned predecessor had passed an order under section 204 of Cr.P.C. whereby the accused was summoned to face accusation under section 138 of Act 26 of 1881 in respect of cheques bearing nos. 584908, 515475 and 447486 dated 03.4.2005, 18.4.2005 and 20.4.2005 respectively.
4. In pursuance of the process issued by the court the accused appeared and he was admitted to bail. Subsequently, on 02.12.2009 a notice of accusation under section 251 of Cr.P.C. was framed whereby the accused was charged with the commission of offence punishable under section 138 of Act 26 of 1881 in respect of cheques bearing nos. 584908, 515475 and 447486 dated 03.4.2005, 18.4.2005 and 20.4.2005 respectively. The notice of accusation was read over and explained to the accused to which he did not plead guilty and claimed trial. At the time of the framing of notice the accused denied having received notice dated 14.5.2005 and stated that the cheque in the sum of Rs.14,000/ does not pertain to him and the bank account against which the same was drawn did not exists in his name; that the cheque in the sum of Rs.20,000/ bears his signature but other C. C. No. 4836/1/09 Page no. 3 of 12 particulars have not been written by him; that the cheque in the sum of Rs. 50,000/ does not pertain to him and the same was not drawn on the account maintained in his name; and that he had take a loan of Rs.2000/ from the complainant and after adding interest the said amount came to Rs.4000/ which has already been paid to the complainant.
5. In support of his case the complainant got examined himself as CW1 and during his examination in chief tendered his affidavit Ex. C1 alongwith documents Ex. CW1/A to Ex. CW1/I. The complainant was cross examined by counsel for the accused and thereafter, evidence on behalf of the complainant was closed and the accused was examined under section 313 of Cr.P.C.
6. During his examination under section 313 of Cr.P.C. the accused denied having taken loan of Rs.20,000/, Rs.50,000/ and Rs. 14,000/ from the complainant. The accused also denied having drawn cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C in favour of the complainant and further stated that cheque Ex. CW1/A bears his signature but the same was never drawn by him in favour of the complainant. During his examination under section 313 of Cr.P.C. the accused also stated that cheques Ex. CW1/B and Ex. CW1/C do not bears his signature and the same were not drawn by him in favour of the complainant. The accused also stated that the accounts whereupon cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C have been drawn do not pertain to him. During his C. C. No. 4836/1/09 Page no. 4 of 12 examination under section 313 of Cr.P.C. the accused also denied having received notice dated 14.5.2005, a copy of which is Ex. CW1/G. The accused further stated that the complainant is in the business of chit fund and he gives loan by charging interest at the rate of 20%.
7. In his defence, the accused got examined DW1 Mr. Pramod Kumar and after his cross examination evidence on behalf of the accused was closed.
8. I have heard counsel for the parties and gone through the material on record carefully.
9. Having drawn my attention on the testimony of CW1 Mr. Ramesh Chander Gupta and DW1 Mr. Pramod Kumar and documents Ex. CW1/A to Ex. CW1/I it is submitted by counsel for the complainant having taken loan of Rs.20,000/, Rs.50,000/ and Rs.14,000/ on different dates to discharge his debt the accused had drawn three cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C bearing numbers 584908, 515475 and 447486 respectively dated 03.4.2005, 18.4.2005 and 20.4.2005 respectively in the sum of Rs.20,000/, Rs.50,000/ and Rs.14,000/ respectively drawn on State Bank of India, DDA Flats, Kalkaji branch, New Delhi in favour of the complainant. It is further submitted by counsel for the complainant that the complainant had presented cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C for encashment through his banker but the same returned unpaid by the banker of the accused alongwith memoranda Ex. CW1/D, Ex. CW1/E C. C. No. 4836/1/09 Page no. 5 of 12 and Ex. CW1/F dated 02.5.2005 due to insufficient funds in the account of the accused. It is further submitted by counsel for the complainant that after return of cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C as dishonoured due to insufficient funds in the accounts of the accused a legal notice dated 14.5.2005, a copy of which is Ex. CW1/G, was sent by the complainant to the accused by registered post with AD vide receipt Ex. CW1/H whereby the accused was called upon to make payment against the three cheques within fifteen days of the receipt of the notice but despite receipt of the notice vide acknowledgment card Ex. CW1/I the accused did not make payment against cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C and thus he has committed offence punishable under section 138 of Act 26 of 1881. It is further submitted by counsel for the complainant that the defence taken by the accused is frivolous and the testimony of DW1 Mr. Pramod Kumar, who is real brother of the accused, is not reliable. It is further submitted by counsel for the complainant that the complainant has succeeded in proving all the ingredients of offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C and the conditions precedent for making a complaint in respect of the said three cheques and therefore, the accused be convicted and punished for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C.
10. Per contra, having drawn my attention on the testimonies of C. C. No. 4836/1/09 Page no. 6 of 12 CW1 Mr. Ramesh Chander Gupta, DW1 Mr. Pramod Kumar and documents Ex. CW1/A, Ex. CW1/B, Ex. CW1/C, Ex. CW1/G and Ex. CW1/I it is submitted by counsel for the accused that the bank accounts upon which cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C have been drawn do not pertain to the accused and therefore, he cannot be held guilty for commission of offence punishable under section 138 of Act 26 of 1881 in respect of any of the said three cheques and is entitled to be acquitted. It is further submitted by counsel for the accused that the three cheques which have been drawn on the accounts maintained in the name of Sunil Fashion were never drawn by the accused in favour of the complainant to discharge any debt or liability. It is further submitted by counsel for the accused that cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C are forged documents which have been created by the complainant to falsely implicate the accused. It is further submitted by counsel for the accused that the complainant has failed to prove the connection of the accused with Sunil Fashion or the fact that the accused is liable to pay against the liability of Sunil Fashion.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. Section 138 of the Act 26 of 1881 which pertains to dishonour of cheque for insufficiency, etc., of funds in the account reads as follows:
138. Dishonour of cheque for insufficiency, etc., of funds C. C. No. 4836/1/09 Page no. 7 of 12 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 provisions of this Act, be punished with imprisonment for a term which may be extended 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
(a) 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;
(b) 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
(c) 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.
13. From a reading of section 138 of Act 26 of 1881 it can be discerned that mere delivery of a cheque by one person to another and its subsequent dishonour is not sufficient to hold the person who has delivered the cheque liable for the commission of offence punishable under section 138 of Act 26 of 1881. To hold a person liable under the said section it is necessary that the cheque must be drawn by the drawer on an account C. C. No. 4836/1/09 Page no. 8 of 12 maintained by him with a banker. If the cheque is not drawn by a person on the account maintained by him with a banker, no liability can be imposed upon such person for having committed the offence punishable under section 138 of Act 26 of 1881.
14. In the present case a perusal of cheque Ex. CW1/A bearing no. 584908 dated 03.4.2005 reveals that the same was drawn for Sunil Fashion in favour of self and subsequently the name of complainant Mr. Ramesh Chander Gupta was written on the same as payee. The account number whereupon the cheque Ex. CW1/A has been drawn is no. 015269 maintained at State Bank of Patiala. Prima facie it appears from Ex. CW1/A that the account maintained at the bank is in the name of Sunil Fashion and not in the name of accused Mr. Sunil Kumar and the said Sunil Fashion is a proprietorship concern.
15. A perusal of cheque Ex. CW1/B bearing no. 515475 dated 18.4.2005 reveals that that the same was drawn for Sunil Fashion through its authorized signatory in favour of self and subsequently the name of complainant Mr. Ramesh Chander Gupta was written on the same as payee. The account number whereupon the cheque Ex. CW1/B has been drawn is no. 01050060136 maintained at State Bank of Patiala. Prima facie it appears from Ex. CW1/B that the account maintained at the bank is in the name of Sunil Fashion and not in the name of accused Mr. Sunil Kumar. It is not clear from the tenor of the cheque Ex. CW1/B as to what is the status of the C. C. No. 4836/1/09 Page no. 9 of 12 said Sunil Fashion on whose account cheque Ex. CW1/B has been drawn.
16. A perusal of cheque Ex. CW1/C bearing no. 447486 dated 20.4.2005 reveals that the same was drawn for Sunil Fashion in favour of complainant Mr. Ramesh Chander Gupta. The account number whereupon the cheque Ex. CW1/C has been drawn is no. 017210 maintained at State Bank of Patiala. Prima facie it appears from Ex. CW1/C that the account maintained at the bank is in the name of Sunil Fashion and not in the name of accused Mr. Sunil Kumar and the said Sunil Fashion is a proprietorship concern.
17. Thus it is clear that the three cheques have been drawn on three different bank accounts which are not in the name of the accused but are in the name of Sunil Fashion, which as per the tenor of Ex. CW1/A and Ex. CW1/C is a proprietorship concern.
18. It has nowhere been mentioned in the complaint and no evidence has been led by the complainant to prove that accused Mr. Sunil Kumar is the proprietor of Sunil Fashion, in whose name the accounts are being maintained whereupon the three cheques have been drawn. In the face of the testimony of DW1 Mr. Pramod Kumar, during his cross examination, to the effect that the business under the name and style of Sunil Fashion was being run by the mother of the accused, the proof of the fact in affirmative that the accused is the proprietor of Sunil Fashion becomes more relevant and necessary to saddle him with liability for C. C. No. 4836/1/09 Page no. 10 of 12 having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C. Merely the fact that the cheques were delivered by the accused to the complainant is not sufficient to hold the accused liable under section 138 of Act 26 of 1881.
19. The Hon'ble Supreme Court in its judgment dated 03.3.2011 rendered in Crl. Appeal No. 643 of 2011 entitled Milind Shripad Chandurkar v. Kalim M. Khan and Anr. has held that if the complainant fails to prove, by leading cogent evidence, as to who is the proprietor of a proprietorship concern on whose behalf a complaint under section 138 of Act 26 of 1881 is made, the accused is entitled to be acquitted.
20. The complainant has also not proved the fact that the three accounts whereupon cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C have been drawn are existing in the name of the accused. It has nowhere been mentioned in affidavit Ex. C1 that the accounts whereupon the three cheques have been drawn were existing in the name of the accused or he was operating the same. During the cross examination of CW1 Mr. Ramesh Chander Gupta when it was put to him as to whether the accounts whereupon the cheques have been drawn are existing the name of the accused or not, he had not taken any clear stand.
21. The complainant has not called any witness from the bank to prove the fact that the accounts in the name of Sunil Fashion were being C. C. No. 4836/1/09 Page no. 11 of 12 operated by the accused only and by no other person.
22. In view of above discussion and circumstances accused Mr. Sunil Kumar is not found guilty of the accusation made against him. Accused Mr. Sunil Kumar is acquitted of accusation under section 138 of Act 26 of 1881 in respect of cheques Ex. CW1/A, Ex. CW1/B and Ex. CW1/C. File be sent to records.
Announced in the open court (Manoj Kumar)
on this 18 day of September, 2012
th
Senior Civil Judgecum
Metropolitan Magistrate
New Delhi: 18.09.2012
C. C. No. 4836/1/09 Page no. 12 of 12