Delhi District Court
Complainant vs . on 6 February, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS,
DELHI.
CC No. : 5033/1/08
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0226202008
Smt. Amrit Kaur
W/o Sh. Narender Singh
R/o 15, BlockI, Near Gobind Pura, Delhi51.
.............. Complainant
Vs.
Sh. Rahul Ahuja
S/o Sh. P.K. Ahuja
R/o H. No. B36, Gali No.13, Gobind Pura, Delhi51.
............. Accused
Date of Institution : 29.03.2008
Plea of accused : Pleaded not guilty
Date of pronouncement : 06.02.2012
Final Order : Convicted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant is the land lady of one shop measuring 4X18 ft. situated in the property 185A, South Anarkali, Som Bazar, Chander Nagar, Delhi, which was given on rent by her to accused on monthly rent of Rs.7,500/ vide rent agreement dated 09.04.2007. That the accused for the payment of rent of month of December, 2007, January,08 and February, 2008 issued three cheuqes bearing No. 562671 dated 05.12.2007, CC No.5033/1/08 Page No.: 1 / 15 cheque bearing no. 562672 dated 05.01.08 and cheque bearing no. 562673 dated 05.02.08 of Rs.7,200/ each drawn on DCB Bank, Delhi. At the time of handing over the said cheques the accused also promised to pay the difference amount of Rs.300/ in cash every month. The said cheques upon presentation were dishonoured for reason 'Account Closed' and despite service of Legal Notice with respect to dishonour of said cheques upon the accused no payment was made by accused during the statutory period because of which the present complaint was filed on 28.03.2008.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 29.03.2008.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. Notice was framed against the accused u/s 138 N.I. Act on 02.06.2010. On the same day admissiondenial of documents was conducted u/s 294 Cr.P.C wherein accused admitted the cheques and his signature upon the same as well as the receiving of legal notice dated 01.03.08 along with the contents of Legal Notice. The accused took the defence that he had taken a loan of Rs.60,000/ from the complainant and in lieu of the same, he issued 11 blank signed cheques as security of which three cheques, are cheques in question, which have been misused by the complainant.
4. Complainant in post summoning evidence relied upon her affidavit dated 29.03.2008 already tendered in presummoning evidence, and examined no other witness.
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5. Before proceeding further I would like to mention certain facts which are not disputed and admitted by the accused. The signature upon the cheques are not disputed. It is also not disputed that legal notice was received by the accused.
6. The questions before the court for the disposal of the complaint are :
(i) Whether the cheques in question were given by the accused to the complainant in discharge of legally enforceable debt?
(ii)Whether the cheques in question were dishonoured on presentation?
(iii)Whether the reason for dishonor of cheques was insufficiency of funds?
(iv)Whether the cheques were presented within the period of 6 months from the date when it were issued?
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank?
(vi)Whether the accused failed to make payment of cheques amount within 15 days of receipt of said notice?
7. In support of the case the Complainant had tendered her evidence in postsummoning evidence as CW1. In the affidavit the complainant reiterated/ reproduced all the facts which were mentioned in the Complaint itself and she exhibited the cheques as Ex. CW1/1, CW1/2 and CW1/3, the return memos dated 06.02.08 as Ex. CW1/4, CW1/5 and CW1/6, the legal notice dated CC No.5033/1/08 Page No.: 3 / 15 01.03.08 as Ex. CW1/7 and the Regd. Postal receipt and UPC vide which the same was sent to the accused dated 01.03.08 are Ex. CW1/8 and CW1/9 respectively. The AD card returned back has been exhibited as Ex. CW1/10.
8. On the basis of the said testimony of CW1, complainant sought conviction on the ground that the cheques in question which were dishonoured were given in lieu of monthly rents which were due towards the accused.
9. On the other hand, Ld. Defence Counsel sought acquittal on the ground that accused had taken a loan of Rs.60,000/ from the complainant and in lieu of the same, he issued 11 blank signed cheques as security of which three cheques, are cheques in question, which have been misused by the complainant by filing the present case.
10. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIOANS :
The complainant in order to prove the allegations, herself appeared in the witness box as CW1 and tendered her affidavit in which she reiterated the allegations made by her in the complaint. The documents produced by the complainant and exhibited are :
(a) Dishonored cheque bearing No. 562671 7273 - Ex. CW1/1, CW1/2 and Ex. CW1/3 respectively.
(b) Returning Memos qua the said cheques - Ex. CW1/4, 5 and 6 respectively.
(c) Legal Notice dated 01.03.08 - Ex. CW1/7.
(d) Receipt of Registered Post - Ex. CW1/8.
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(e) UPC - Ex. CW1/9.
(f) Acknowledgment Card - Ex. CW1/10.
11. PRESUMPTION :
The complainant produced the original cheques, return memos, legal notice and postal receipts. She also appeared as witness to support her allegations with her oral testimony on oath.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheques are dishonoured by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonoured by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
As regards the extent of presumption that is whether the presumption is with respect to debt/ liability or with respect to legally enforceable debt / liability, this issue now stands settled in the light of the judgment titled Rangappa Vs. CC No.5033/1/08 Page No.: 5 / 15 Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 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. ...............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." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words : "The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of low, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. 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 CC No.5033/1/08 Page No.: 6 / 15 presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It is further held that : "The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheques in question were issued in discharge of a legally enforceable debt or liability.
12. ADMITTED FACTS : The facts admitted by the accused have already been stated in para 3 of this judgment.
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13. DEFENCE OF THE ACCUSED : The accused has admitted that the cheques belongs to the accused and that it also bears his signatures. The accused has disputed the amount mentioned on the cheques Ex. CW1/1, 2 and 3 and he has taken the defence that the said blank signed cheuqes were issued by him as security for loan of Rs.60,000/ taken from the complainant.
14. The first question before the court is whether the cheque which is incomplete / inchoate with respect to date can be presented after filling up the date at a later stage and would its dishonour, make out an offence u/s 138 N.I. Act. In Shri Taher N. Khambati Vs. Vinayak Enterprises, the Hon'ble Andhra Pradesh High Court held that if a creditor while giving certain sum to debtor obtains a blank signed cheque as a threat to the drawer with a view to make use of it for realization of amount then cheque can not be treated as voluntarily issued for discharge of debt and on its dishonour offence under section 138 of the Act shall not be attracted because payee creditor even at the time of its presentation had not expected that the same would be honoured and he was presenting the cheque only with a view to get an endorsement which would enable him to proceed under section 138 of the Act.
15. Section 20 of the Act deals with inchoate stamped instruments. As per this provision, if a person gives duly signed but a blank or partly written cheque, he is deemed to have given implied authority to the holder to fill up the particulars in it and complete it and thus make him liable for the payment mentioned in it. Hence, a cheque, partly written or blank, but signed by the account holder and filled up by another is valid one.
CC No.5033/1/08 Page No.: 8 / 15
16. Thus, blank signed cheque is a valid one and deemed authority is given to due holder to fill up the same and prosecution on it is not always bad if it is issued against debt and not as a security. However, facts and circumstances of each case decides the legality and validity of such blank cheque whether the same were voluntarily given or obtained under coercion.
17. Adverting to facts of present case, complainant Amrit Kaur stated in her complaint that the cheques in question were issued to her towards payment of monthly rent for the month of December, 2007, January, 2008 and February, 2008.
18. The complainant was crossexamined at length by Ld. Defence Counsel and the complainant reiterated in her crossexamination by Ld. Defence Counsel that the rent of the property in question was Rs.7,500/ per month and that initially the rent was Rs.7,200/ but in subsequent agreement the same was enhanced by Rs.300/ per month. The witness also admitted that with respect to three cheques Ex. CW1/1, 2 and 3 she had received Rs.1,500/ per month as rent in the court of Ld. Civil Judge. It is interesting to note that in the entire cross examination not even a single question has been put to the complainant as regards grant of loan of Rs.60,000/ by the complainant to the accused and regarding issuance of blank signed cheques by the accused to the complainant. Further, there is no question as regards who filled the amount, name and date in the said cheques which as per the accused were blank when handed over to the complainant. Rather, from the crossexamination, it is clear that accused is a tenant in the shop of complainant and that dispute as regards rent is also pending in the court of Ld. Civil Judge.
CC No.5033/1/08 Page No.: 9 / 15
19. Summarizing, through the crossexamination of complainant, the accused failed to rebut the presumption raised under section 139 of N.I. Act and he is therefore liable for commission of offence u/s 138 N.I. Act for the following reasons :
1. As it is admitted that the cheques belong to accused.
2. As it is admitted that the cheques bear the signatures of accused.
3. As it stands proved from the return memos Ex. CW1/4 to 6 that the cheques were dishonoured due to closure of account.
4. As it is admitted that notice, dated 01.03.08 as regards dishonour of cheques in question, was received by the accused.
5. As there is no averment by the accused that he made payment of the cheque amount within statutory period upon receiving notice. Rather, he took the defence that cheques were issued as security for a loan of Rs.60,000/ taken by him from complainant.
6. As despite taking the defence that the cheques were issued as security for a loan of Rs.60,000/ taken by him from complainant, no question as regards taking of loan by the accused or issuance of blank cheques by the accused were put to the complainant in her crossexamination by Ld. Defence Counsel.
7. As from the crossexamination of the complainant it stands proved that the accused is a tenant in the shop of complainant and that a civil case as regards payment of rent is also pending in Civil Court, thereby corroborating the story of complainant.
8. As the accused failed to produce any Defence Evidence despite several opportunities being given to rebut the presumption u/s 139 N.I. Act in favour of complainant being holder of cheques in question.
20. Accordingly, in view of the above discussions and cited judgments, accused Rahul Ahuja is convicted for the offence u/s 138 N.I. Act. CC No.5033/1/08 Page No.: 10 / 15
Be heard separately on point of sentence.
ANNOUNCED ON 06.02.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 06.02.2012 Certified that this judgment contains 15 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 06.02.2012 CC No.5033/1/08 Page No.: 11 / 15 IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI.
CC No. : 5033/1/08
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0226202008
Smt. Amrit Kaur
W/o Sh. Narender Singh
R/o 15, BlockI, Near Gobind Pura, Delhi51.
.............. Complainant
Vs.
Sh. Rahul Ahuja
S/o Sh. P.K. Ahuja
R/o H. No. B36, Gali No.13, Gobind Pura, Delhi51.
............. Accused ORDER ON SENTENCE Accused Rahul Ahuja was convicted for offence under section 138 of the Negotiable Instruments Act on 06.02.2012.
Arguments on sentence were heard at length on behalf of both the parties.
Punishment prescribed by Law: As per section 138 of the Negotiable Instruments Act, the punishment prescribed is imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or both.
The cheque amount in the present case is Rs.21,600/ but as the power of this court to impose fine is regulated by section 29 of the Code of Criminal Procedure, therefore, the maximum fine that this court can impose upon the CC No.5033/1/08 Page No.: 12 / 15 accused is Rs.10,000/ only.
This view has been consistently taken by Honourable Supreme Court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510 and Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369.
However, as far as compensation is concerned, in the light of section 357 (3) and judgment titled Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369, there is no limitation on the powers of this court to award compensation to the complainant.
Arguments : The complainant has submitted that though the cheques were payable in 2007 and five years have passed since then, therefore, the complainant be compensated with atleast double the cheque amount and the Ld. Counsel for complainant has also strongly prayed for imprisonment of the accused in the light of the Objects and Reasons of the Amendment Act 55 of 2002 of the Negotiable Instruments Act, 1881.
Ld. Counsel for the accused, on the other hand, submitted that the accused has already made part payment of the rent in the civil court and he is also ready to make payment of cheque amount as stated in his application filed earlier today.
Considerations: At this stage of order on sentence, the court is well aware of the fact that protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing an appropriate sentence and that it is the duty of this court as that of any other court, to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of CC No.5033/1/08 Page No.: 13 / 15 proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment is a goal respected in principle.
Thus, the court at this stage is required to give consideration to the facts and circumstance of this case for deciding the just and appropriate sentence to be awarded for offence under section 138 of N.I. Act, and also considered the aggravating and mitigating facts and circumstances in which a crime has been committed as the same are to be delicately balanced on the basis of relevant circumstances in dispassionate manner by this court. Order on Sentence: As the accused has been convicted for offence under section 138 of N.I. Act, therefore, keeping in mind that the accused has already been convicted for offence u/s 138 N.I. Act by this court on 17.04.2009 and the conviction order was also upheld by Ld. Sessions Court vide order dated 06.08.2009, hence, the accused is sentenced to undergo simple imprisonment for a period of one year. Order as regards compensation: It is clear from the record that the cheques in question were payable in 2007 i.e., five years ago and since then no payment has been made till date, thereby causing loss of use of money as well as interest to the complainant and in the opinion of the court, it would be justified, if the complainant is compensated with double the cheques amount i.e., for Rs.43,200/. Accordingly, the accused is sentenced to pay compensation of Rs.43,200/ to the complainant. The compensation is to be paid within one month from today.
In the light of the judgment titled Vijayan Vs. Sadanandan Kumar, 2009 (6) SCC 652, in case of default of payment of compensation, accused shall undergo simple imprisonment for a period of 3 months. CC No.5033/1/08 Page No.: 14 / 15
It is, however, made clear that undergoing sentence in default of payment of compensation shall not absolve the accused of his liability to pay compensation as the same shall in such case be recoverable under section 431 of Cr.P.C.
ANNOUNCED ON 06.02.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 06.02.2012 CC No.5033/1/08 Page No.: 15 / 15