Delhi District Court
Cc No. 2726/10 Deepak Kumar vs . Prem Gupta Page No. 1 Of Pages 11 on 11 September, 2012
CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 1 of Pages 11
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 2726/10
Unique ID No. 02402R0067982005
PS. Gandhi Nagar
Sh. Deepak Kumar,
S/o Sh. Ved Prakash,
R/o D129/A, Vijay Colony,
3rd Pusta, New Usman Pur,
Gali No.7, Delhi53 ......... Complainant.
Versus
Sh Prem Gupta,
S/o Late Sh. B.P. Gupta,
R/o 47, Bapu Park,
Kotla Mubarak Pur, New Delhi ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 09.01.2005
Plea of Accused : Not guilty
Complaint filed on : 31.01.2005
Final Arguments heard & Concluded on : 18.08.2012
Date of decision of the case : 11.09.2012
Final order : Conviction
CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 2 of Pages 11
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Sh. Deepak Kumar, against the accused Prem Gupta.
2. The facts in brief necessary for the disposal of the present case are that, the complainant was the owner of a Shaktiman make Generator set and alternator make Ramco with a capacity of 62 KVA. The said generator had been operated at 47, Bapu Park, Kotla Mubarakpur, New Delhi. That the accused had approached the complainant to purchase the said generator set for sum of Rs.65,000/ and the complainant agreed to the same. Accordingly the accused paid Rs.20,000/ in cash and also issued a cheque bearing no. 608784 dated 25.11.2004 for the sum of Rs.45,000/, drawn on PNB, Kotla Mubarak Pur, New Delhi in favour of the complainant as remaining payment of sale consideration in respect of purchase of said generator set but on presentation the said cheque was lastly returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memo dated 13.12.2004. Thereafter a legal notice dated 22.12.2004 was sent to the accused on 24.12.2004 by way registered post of regd AD. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 3 of Pages 11 summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 03.02.2005 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 21.08.2008 was framed upon him to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited sale deed as Ex. CW1/2, original cheque bearing No. 608784 as Ex. CW1/A, the cheque returning memos are Ex. CW1/B & Ex. CW1/D, the legal notice of demand dated 22.12.2004 as Ex. CW1/F, The original receipts of registered post is Ex. CW1/G & returned envelop as Ex. CW1/H. He also examined Mr. N.K. Seth, Customer Care Officer from PNB bank, Gandhi Nagar branch as CW2, who exhibited statement of account of complainant Deepak Kumar as Ex. CW2/1. The complainant also examined Sh. Mukesh Kumar, Chief Manager, PNB, Kotla Mubarakpur branch as CW3, who exhibited statement of account of the accused Mr. Prem Kumar as Ex. CW3/1. Thereafter, the complainant evidence was closed at request.
5. After that on 12.12.2011 the statement of accused was CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 4 of Pages 11 recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that he had purchased the generator set from the complainant in total sum of Rs.65,000/ and also paid a sum of Rs.20,000/ in cash and handedover the cheque in question to the complainant but later on he paid the amount of Rs.45,000/ to the complainant in cash despite that the complainant did not return his cheque. It is further submitted by him that infact apart from generator set of Rs.65,000/, he had also purchased some tools from the complainant to the tune of Rs.5000/ and he has receipt of Rs.70,000/ with him. He accepted the service of legal notice. Thereafter the case was fixed for Defence evidence. The accused examined Mr. Omprakash as DW1 and also examined himself as DW2. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 5 of Pages 11
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
9. Accused have accepted the factum of issuing the cheque in question to the complainant towards his part liability against purchase of the generator set. He also accepts the receipt of legal notice. It is also accepted by him that after receipt of legal notice he had not made the payment of cheque amount. Perusal of the record reveals that the cheque in question which is Ex. CW1/A is CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 6 of Pages 11 dated 25.11.2004, which was got dishonoured due to insufficiency of funds vide cheque returning memos dated 06.12.2004 & 13.12.2004 which are Ex. CW1/B & Ex. CW1/D which clearly shows that the cheque has been lastly presented for encashment within period of its validity i.e. within six months from the date of the cheque and was dishonored due to insufficiency of funds. The accused has not objected to or denied this fact. Thus its stand proved beyond doubt that cheque was presented for encashment within time and was dishonored due to insufficiency of funds.
10. The only defence of the accused in the present case is that he had paid the cheque amount i.e. Rs.45,000/ along with an another sum of Rs.5000/ i.e. total Rs.50,000/ to the complainant on 16.10.2004. Therefore at the date of presentation of the cheque for encashment he was not liable to make payment in respect of the cheque in question. To prove his defence accused examined one Mr. Om Prakash, who has submitted that on 16.10.2004 accused had paid an amount of Rs.50,000/ to the complainant in his presence. It is also submitted by him that on that date an affidavit was also executed between them. The accused also deposed in his examination U/s 315 Cr. PC that on 16.10.2004 he paid a sum of Rs.50,000/ to the complainant against a receipt which is marked as Mark DW2/1.
11. At this stage let us go through the relevant provisions of CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 7 of Pages 11 law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
12. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
13. The only contentious question in the present case is whether the accused had paid the cheque amount to the complainant in cash on 16.10.2004 or not. The following circumstantial evidences are pointing towards the inference that accused had not made the payment against the cheque amount on 16.10.2004:
i) After payment of the amount in lieu of the cheque as alleged by the accused he should immediately have protested and asked the complainant to return his cheque and if still cheque was not returned he should have served a notice as complainant. However the accused have not done any such things. Unless the accused had proved that he acted like a normal businessman / prudent person CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 8 of Pages 11 entering into a contract he could not have rebutted the presumption u/s 139 NI Act ( as held in V.S. Yadav Vs. Reena 172(2010) DLT 561).
ii) The affidavit Ex. CW1/X1 admittedly bears signature of the complainant, however this affidavit only shows that the complainant had received the total sales consideration but it is not clear if the total sale consideration was paid in cash or a cheque was also issued which was accepted as payment. Further if the sum of Rs.45,000/ was paid on 16.10.2004 towards amount of cheque then this fact should have been mentioned in the affidavit, which is not so.
iii) The affidavit Ex. CW1/X1 was executed on 16.10.2004 and notarized on 20.10.2004 and the cheque in question is dated 25.11.2004. It is not the case of the accused that the cheque was given in blank signed condition, therefore he must be knowing the date of the cheque, which was 40 days after the execution of affidavit, which clearly shows that the cheque in question was given as part of the total payment. Further despite knowing the date of the cheque the accused never issued any stop memo to his bank despite the fact that the cheque was presented for encashment on two occasion as shown from the stamp at the back of the cheque i.e. On 06.12.2004 & 13.12.2004. The accused miserably failed to explain as to why he left his cheque with the complainant and not got its CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 9 of Pages 11 encashment stopped despite payment of cheque amount.
iv) The accused had submitted in his statement U/s 251 Cr. PC read with 263(g) of Cr. PC that he had not received the legal notice, however in his statement U/s 313 Cr. P.C. he accepted the receipt of the legal notice. Thus this witness is making contradictory statements. During his examination U/s 315 Cr. P.C. he accepted the receipt of legal notice and also accepted that he did not replied the same. This non reply of the legal notice draw an adverse inference against the accused that he was liable to make payment in respect of the cheque on the date of its presentation and his defence is an after thought.
v) The documents brought on record as Mark DW2/1 which is a receipt of Rs.50,000/ allegedly issued by the complainant was not put to the complainant in his cross examination. The same is issued to one Smt. Sudha Gupta, stated to be wife of the accused, but she has not been examined. The receipt could not be exhibited as it was not shown to the complainant during his cross examination. Further the accused can not prove this receipt. The Counsel for the complainant has given a clear suggestion to the accused that Mark DW2/1 was not signed by the complainant, thus the accused failed to prove that this receipt was issued by the complainant. Further this receipt does not show that it was issued in lieu of the payment of cheque amount. Thus this receipt does not appear to be a CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 10 of Pages 11 reliable piece of evidence.
14. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exists, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. On the basis of above stated discussion this Court finds the nonexistence of the fact of payment of the cheque amount to be so probable that a reasonable men would act on the supposition that it does not exists. Thus its proved that the accused had not made the payment of the cheque amount on 16.10.2004 or thereafter.
15. The Ld. Defence counsel had argued that in the complaint the complainant had mentioned that he had sold the generator set with alternator for an amount of Rs.65,000/ out of which Rs.20,000/ received in cash while cheque in question was issued for the remaining sum of Rs.45,000/, however in his cross examination it is submitted by the complainant that he had sold the generator set with alternator and the supply network to the accused for a total sum of Rs.1,65,000/ and out of which Rs.1,00,000/ and Rs.20,000/ were paid in cash and for the sum of Rs.45,000/ the cheque in question was issued. On the basis of this contradiction it is pointed out by the Ld. Defence Counsel that the complainant has not come up before the Court with clean hands. This contention is not significant enough to rebut the statutory presumption arisen in favor of the complainant. The presumption U/s 118 & 139 of NI Act are CC No. 2726/10 DEEPAK KUMAR Vs. PREM GUPTA page no. 11 of Pages 11 mandatory presumptions in favor of the complainant and the same can not 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.
16. On the basis of above stated discussion it stands duly proved that the accused had not made the payment of the cheque amount on 16.10.2004.
17. In view of the aforesaid discussion, this Court is of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Prem Gupta, S/o Late Sh. B.P. Gupta, R/o 47, Bapu Park, Kotla Mubarak Pur, New Delhi stands convicted of the offence U/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the open court today i.e. 11.09.2012 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:11.09.2012 Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:11.09.2012