Delhi District Court
Madan Pal Tyagi vs . Naresh Kumar 1/9 on 29 July, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. 02404R0439082008
CC No. 241/1/08
Sh. Madan Pal Tyagi
S/o Late Sh. Balwant Singh
R/o Village & Post Holambi Kalan,
Delhi110082 ............Complainant
V/s
Sh. Naresh Kumar
S/o Sh. Tara Chand
R/o House no. 647, Harizan Basti,
Khera Khurd, Near Sant John
School, Delhi110082 ...............Accused
JUDGMENT
(1)Name of complainant Sh. Madan Pal Tyagi
and parentage address S/o Late Sh. Balwant Singh
R/o Village & Post Holambi
Kalan, Delhi110082
(2) Name of accused Sh. Naresh Kumar
and parentage address S/o Sh. Tara Chand
R/o House no. 647, Harizan
Basti, Khera Khurd, Near Sant
John School, Delhi110082
(3)Offence of complained of or proved: 138 N. I Act
(4) Plea of accused: Pleaded not guilty
(5)Date of institution of case: 28.08.2008
(6)Case transferred on: 11.03.2013
(7)Date of reserve of order: 08.07.2013
(8) Final order: Conviction
Madan Pal Tyagi Vs. Naresh Kumar 1/9
(9)Date of Final Order 29.07.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The present complaint is filed Under Section 138 of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that accused was known to the complainant and had friendly & cordial relations with him. As accused was in financial diffulties due to the marriage of his daughter on 23.01.07, complainant gave friendly loan of Rs. 2,30,000/ on 09.10.06, Rs. 1,10,000/ on 26.12.06 & Rs. 30,000/ on 12.01.07 to the accused and the above said amount was withdrawn by the complainant from his bank account which was duly reflected in the statement of account issued by the bankers of the complainant annexed with the complaint. On 12.01.07 the accused has also entered into a loan agreement with the complainant wherein the accused has also acknowledged the payment of the loan amount of Rs. 3,70,000/ and agreed with certain terms and conditions mentioned in the said loan agreement dated 12.01.07. At the time of taking the loan amount, the accused has also issued a post dated cheque bearing no. 593018 dated 07.02.08 of Rs. 3,70,000/ in favour of complainant and assured him that the cheque will be definitely encashed on its presentation. As per the instructions of the accused, the complainant presented the said cheque to the bank but the same returned dishonored for the reasons "Insufficient funds" vide cheque returning memo dated 01.07.08. Thereafter, complainant approached the accused and informed the accused about the same but he did not pay any heed to the request of complainant and bluntly refused to pay the said cheque amount. Then complainant sent a legal notice dated 16.07.08 to the accused and despite service of legal notice to the accused, he did not make the payment of the aforesaid cheque amount and finally complainant has filed the present complaint case with the submission that accused be summoned, trial and punished accordingly to law.
Madan Pal Tyagi Vs. Naresh Kumar 2/9 In his pre summoning evidence, complainant has examined himself on affidavit as Ex.CW1/1. He reiterated the contents of complaint and placed on record his statement of accounts as Ex.CW1/A, Copy of loan agreement as Ex.CW1/B, the original cheque bearing no. 593018 dated 07.02.08 amounting to Rs. 3,70,000/ drawn on State Bank of India, Delhi as Ex CW1/C, original cheque returning memo dated 01.07.08 as Ex.CW1/D wherein it has been stated that cheque in question was dishonoured due to "Insufficient Funds", legal demand notice dated 16.07.08 as Ex. CW1/E, postal receipt as Ex.CW1/F & UPC certificate as Ex.Cw1/G. Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which he pleaded not guilty and claimed trial.
Thereafter no application u/s 145 (2) NI Act for recalling the complainant for the purpose of cross examination moved on behalf of accused, therefore in view of law laid down by Hon'ble High Court of Delhi in case titled as "Rajesh Aggarwal Vs. State & Another 171(2010) DLT 51" the present matter was listed directly for defence evidence vide order dated 23.04.2011.
Accused has examined himself as DW1 in his defence evidence. Relevant part of examination is given below:
"I was not known to the complainant earlier. I had not friendly or cordial relation with the complainant. I was known to Smt. Kailashwati who introduced me one Sh. Vijender and Vijender introduced me with the complainant. Only then I came to know that the complainant is doing the business of money lending. I asked Kailashwati that I am in need of money as my daughter's marriage is going to be solemnized. Smt. Kailashwati asked the complainant to given loan of Rs. 50,000/ to me. The complainant asked me four blank signed cheques and a blank stamp paper to be signed by me. The complainant taken into possession these four blank Madan Pal Tyagi Vs. Naresh Kumar 3/9 signed cheques and a signed blank stamp paper but the complainant did not pay any money to me. After that I managed my daughter's marriage from here and there. Then I made many request for the loan amount but neither Smt. Kailashwati nor the complainant considered my request. After that I fell ill and hospitalized. I remained in the hospital for few days. The complainant filled up the blank signed cheque and represented in the bank without knowledge and consent. I have never acknowleded the loan amount of Rs. 3,70,000/ and I have never entered into a loan agreement with the complainant.
Thereafter DW1 was cross examined and relevant part of his cross examination is given below:
"I met the complainant first time in the month of January, 2007 through Smt. Kailashwati for taking the loan for the marriage of my daughter. I repaid a sum of Rs. 1,50,000/ to the complainant on 27.08.2007. I had taken a loan of Rs. Two lacs from the complainant on 12.01.2007. It is correct that Ex.CW1/B bears my signatures at point A. It is also correct that cheque in question bears my signatures at point A. I had received the legal notice dated 16.07.08.... The entire loan amount was to be repaid by me in one year".
Accused has not examined any other witness in his defence, therefore DE was closed and the matter was fixed for final arguments.
Thereafter it was revealed that inadvertently statement of accused U/s 281 r/w 313 Cr.P.C. was not recorded. Hence, statement of accused U/s 281 r/w 313 Cr.P.C. was recorded on 01.02.2013 and in his examination all the incriminating circumstances came in evidence were put to him to which he replied that he had taken a loan of Rs. Two lacs from the complainant and that in respect of the loan amount of Rs. Two lacs, he had given four cheques to the complainant and one blank affidavit in this regard was also given to the complainant by him. He has further replied that complainant was not known to him earlier and he was introduced with the complainant by Sh. Vijender and Kailash Wati. He further Madan Pal Tyagi Vs. Naresh Kumar 4/9 replied that no legal notice was served upon him and he wants to lead defence evidence.
As accused had already examined his defence evidence, the matter was again fixed for final arguments but at the stage of final arguments on 23.04.13, an application u/s 145 (2) NI Act was filed by Ld. counsel for accused to cross examination the complainant i.e, CW1 and considering the principles of natural justice, Audi Alteram Partem and in the larger interest of justice, the said application was allowed and thereafter CW1 was cross examined on 08.07.13.
Oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
Entire record perused.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. 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 Madan Pal Tyagi Vs. Naresh Kumar 5/9 contained in Section 118 (a) therein 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. Presumptions both under Sections 118
(a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact ".
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] Madan Pal Tyagi Vs. Naresh Kumar 6/9 wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is 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 accused and this they had to discharge at the trial.
In the present case, the accused has taken contradictory stands as in his evidence as DW1 he has stated that he asked for loan of Rs. Fifty Thousand from the complainant and for securing the loan, the complainant has taken his four blank signed cheques and a signed blank stamp paper, but complainant did not pay any money to him. Whereas in his cross examination he has stated that he has taken a loan of Rs. Two lacs from the complainant on 12.01.07 and he has repaid a sum of Rs. 1.5 lacs to the complainant on 27.08.07. It has also been admitted by him in his statement U/S 313 Cr.P.C. that he has taken a loan of Rs. Two Lacs from the complainant and in respect of the aforesaid he has given four cheques to the complainant along with one blank affidavit. As the accused has taken different stands at different time, therefore his testimony is not trustworthy. He has also admitted his signatures on the cheque as well as loan agreement Ex.CW1/B. To this reference has been made to Judgment of Apex Court in Rangappa vs Sri Mohan, AIR 2010 SC 1898 that, "Once the cheque relates to the account of the accused and he accepts and Madan Pal Tyagi Vs. Naresh Kumar 7/9 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. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act".
After perusal of entire record and in view of the above, this court of the considered opinion that accused has not rebutted the presumption in favour of complainant as he has taken contradictory defences in his trial and hence, his version is not believable in toto. Therefore, complainant has proved his case beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
Madan Pal Tyagi Vs. Naresh Kumar 8/9 As the complainant has proved its case beyond reasonable doubt, therefore, accused is being covicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT (SHEFALI BARNALA TANDON)
ON 29.07.13 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Madan Pal Tyagi Vs. Naresh Kumar 9/9
IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
Unique ID No. 02404R0439082008 CC No. 241/1/08 Madan Pal Tyagi Vs. Naresh Kumar U/s. 138 Negotiable Instrument Act 30.07.13 ORDER ON SENTENCE Present: Complainant with Ld. counsel Sh. S.K. Tyagi.
Convict with Ld. counsel Sh.Yudhvir Singh from DLSA.
NBW issued against the accused has been stayed on the last date and the same is cancelled today.
Arguments heard on the point on sentence. It is submitted by the counsel for the convict that convict is aged about 45 years and the matter pertains to year 2008. He is the first time offender and there is no other case pending against him. The convict is ready to pay the compensation amount whatsoever the court grants and no fruitful purpose would be served by sending the convict behind the bars. Therefore lenient view may be taken.
Ld. Counsel for complainant has submitted that the matter pertains to the year 2008 and an amount of Rs.3,70,000/ was involved in the matter. The complainant is ready to settle the matter even at this stage.
I have heard the submissions and carefully perused the record. Complainant regarding present cheque in question is pending since 2008 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the offence U/s 138 NI Act are on high rise and releasing the accused on probation would not have deterent effect in the society.
Considering the totality of circumstances and seeing the age of convict, he is sentenced to undergo imprisonment till rising of the court and is Madan Pal Tyagi Vs. Naresh Kumar 10/9 further ordered to pay compensation to the complainant for an amount of Rs. 2,15,000/ u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of three months.
At this stage, it is submitted by Ld Counsel for convict that he is ready to undergo the imprisonment and ready to pay the compensation amount.
Rs. One Lac has been paid by accused today towards compensation amount and rest of the amount i.e, 1,15,000/ would be paid on 30.08.13. The imprisonment of till rising of the court has been undergone by the convict. Counsel for both the parties submitted that they do not want to prefer appeal. Their separate statement is recorded in this regard.
Put up on 30.08.2013 at 2.00 pm for payment of compensation amount of Rs. 1,15,000/. Copy of this order along with judgment be given to the convict free of cost.
Announced in the open (Shefali Barnala Tandon)
court on 30.07.2013 MM (N/W)/Rohini Courts, Delhi.
Madan Pal Tyagi Vs. Naresh Kumar 11/9
CC No. 241/08
Statement of Sh. S.K. Tyagi, Ld. counsel for complainant.
At bar, I am the counsel for complainant and I do not want to prefer an appeal on behalf of complainant against the judgment and order on sentence.
RO & AC (Shefali Barnala Tandon) MM (N/W)/Rohini Courts, Delhi.
Statement of Sh. Yudhvir Singh, Ld. counsel for convict.
At bar, I am the counsel for convict and I do not want to prefer an appeal on behalf of convict against the judgment and order on sentence. RO & AC (Shefali Barnala Tandon) MM (N/W)/Rohini Courts, Delhi.
Madan Pal Tyagi Vs. Naresh Kumar 12/9