Delhi District Court
Incomplete Address In Postal Receipt : ... vs . on 25 February, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
CC No. : 74/1/11
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0111912011
Sh. Binay Kumar S/o Sh. Prasadi Saw
R/o D66, Dayanand Block, Shakarpur, Delhi92.
.............. Complainant
Vs.
Sh. Sushil Kumar C/o Sh. Rohit Chaudhary
R/o 1/6310, 2 Floor, East Rohtas Nagar, Delhi53.
nd
............. Accused
Date of Institution : 13.04.2011
Plea of accused : Pleaded not guilty
Date of pronouncement : 11.02.2013
Final Order : Convicted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant had gave a friendly loan of Rs.3,00,000/ to the accused and accused in lieu of repayment of the loan amount issued a cheque bearing No. 475887 dated 22.12.2010 of Rs.3,00,000/ drawn on ICICI Bank, Preet Vihar Branch, Sincere Tower 4, Community Center Commercial Complex, Preet Vihar, Delhi, which on presentation got dishonoured vide memo dated 14.02.2011 and returned back with remarks "Account Closed/Transferred To". Thereafter, a Legal Notice dated 24.02.2011 Ex. CW Page No.: 1 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) 1/3 was sent by complainant through his counsel by Speed Post and courier receipt vide postal receipts Ex. CW1/4 and CW1/5 on 24.02.2011. However, despite that the accused failed to make any payment within the statutory period, hence, this complaint.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 13.04.2011.
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 05.07.2011 and in reply to notice the accused took the defence that he has not taken any loan and his cheque book was lost and complainant had misused the same
4. An application was moved u/s 145(2) N.I. Act as per judgment of Hon'ble Delhi High Court titled Rajesh Aggarwal Vs. State dated 28.07.2010 on 19.09.2011 and the said application was allowed on 22.12.2011 and on 27.02.2012 and on 05.03.12 complainant was crossexamined at length by Ld. Defence Counsel. On 07.06.12 CW2 J.D. Khanal was crossexamined by Ld. Defence Counsel and on the same day complainant closed his CE. Thereafter, on 07.07.2012 S.A. was recorded, thereafter, case was fixed for DE. Two witnesses i.e, DW1 Sushil Kumar and DW2 Babu Lal were examined during DE, thereafter, on 29.11.12 DE was closed and matter was listed for Final Arguments. Final arguments were heard on 28.01.13 and matter was listed for Order today.
5. The questions before the court for the disposal of the complaint are:
(i) Whether the cheque in question was given by the accused to the complainant in discharge of legally enforceable debt?Disputed as the accused in his reply to notice u/s 251 Cr.P.C took the defence that the cheque in question was lost and that the same has been misused by the complainant.
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(ii)Whether the cheque in question was dishonored on presentation? Undisputed, as the accused never disputed the fact that the cheque was dishonored and this fact also stands proved from the return memo Ex. CW1/2.
(iii)Whether the reason for dishonor of cheque was Account Closed/ Transferred?Undisputed, as the accused never disputed that the cheque was dishonored because of aforesaid reason and this fact also stands proved from the return memo Ex. CW1/2.
(iv)Whether the cheque was presented within the period of 6 months from the date when it was issued?Undisputed, as the accused never disputed that the cheque was presented in time and this fact also stands proved from Ex. CW1/1 wherein date of cheque is 22.12.2010 and return memo Ex. CW1/2 dated 14.02.11.
(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?Disputed, as the accused in reply to notice u/s 251 Cr.P.C did not admit receipt of Legal Notice.
(vi)Whether the accused failed to make payment of cheque amount within 15 days of receipt of said notice?Undisputed, as the accused never took the defense that the payment was made by him, rather, he took the defence that the cheque in question was lost and that the same was misused by the complainant.
6. On the basis of the evidence on record, complainant sought conviction on the Page No.: 3 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) ground that the cheque in question was given by accused towards return of Rs.3,00,000/ which was received by the accused from the complainant as friendly loan.
7. On the other hand, Ld. Defence Counsel sought acquittal on the ground that the cheque in question was lost by the accused with respect to which a complaint was made and that the said lost cheque has been misused by the complainant by filing the present case.
8. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIONS:
In order to prove the allegations, CW1 Binay Kumar appeared in the witness box as CW1 and filed his affidavit by way of evidence in which he reiterated the allegations made by him in the complaint. The documents produced by the complainant and exhibited are:
(a) Dishonored cheque bearing No. 475887 - Ex. CW1/1.
(b ) Returning Memo - Ex. CW1/2.
(c) Legal Notice dated 24.02.11 - Ex. CW1/3.
(d) Receipt of Speed Post - Ex. CW1/4.
(e) Courier receipt - Ex. CW1/5.
(f ) Courier delivery report Ex. CW1/6.
9. PRESUMPTION :
The complainant produced the original cheque, return memo, legal notice and postal receipt/ courier receipt. He also appeared as witness to support his allegations with his testimony by way of affidavit.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of Page No.: 4 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) 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 dishonored 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 dishonored 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.
An argument was raised as regards the extent of presumption which can be raised in favour of the complainant and against the accused. While the complainant submitted that the presumption is as regards legally enforceable debt, the accused submitted that the presumption is as regards existence of debt only and not as regards legally enforceable debt.
However this issue now stands settled in the light of the judgment titled Rangappa Vs. 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 Page No.: 5 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) 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 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 Page No.: 6 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) 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.
10. DEFENCE OF THE ACCUSED : The accused has admitted that the cheque belongs to him and is signed by him. However, accused took the defence that the said cheque was lost and that he had also made a complaint with the police and that the said cheque is now being misused by the complainant by filing the present case.
The court would now discuss the evidence on record and the arguments put forth by the parties in tabular form for proper appreciation of evidence and issues between the parties : Sr. No. Accused Complainant 1 :Incomplete Notice was never served upon the accused. Notice was duly served as the address in same was sent through The receipt of registered post is not having postal receipt. registered post and courier and complete address, hence, presumption that the the courier report as regards envelope containing notice was also correctly delivery is Ex. CW1/6.
addressed cannot be raised in view of judgment titled AIR 1978 NOC 112. In postal receipt complete address is not mentioned by postal department, thus, if accused was to prove that the registered post was not at proper address, he should have summoned witness from postal department as presumption u/s 27 of General Clauses Act is in favour of Complainant and the presumption is to be rebutted.
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Sr. No. Accused Complainant
2:Payment of There is no proof of payment of Rs.3 The accused had issued cheque in favour
Rs.3 lakhs. lakhs as friendly loan allegedly made by of the complainant as against the loan
the complainant to the accused and also received by him and the fact that the
there is no proof of the source from cheque was so issued in favour of the
which the said money was arranged by complainant is in itself a proof of the
the complainant for payment to the liability of the accused towards the
accused. complainant as regards the loan of Rs.3
lakhs taken by the accused.
3: Cheque The cheque of the accused was lost and That no FIR has been filed by the
Lost. an FIR was also lodged in this regard accused in his examination in chief and
and the said lost cheque which was he has also not disclosed the number of
blank signed by the accused for FIR and has not produced any document
repayment of Home Loan was misused to show that a complaint as regards the
by the complainant by filing the present cheque Ex. CW1/1 was ever lodged by
case. the accused with police authorities.
4:Loan It has been admitted by the complainant Complainant submitted that he had
beyond himself in his crossexamination that as disclosed about the loan in his ITR and
Rs.20,000/ in per Income Tax Rules loan of rupees he has also filed the ITR for the
cash is in more than 20,000/ cannot be given as assessment year 2010 2011 and
violation of cash. financial year 2009 2010 Ex. CW1/D1
Income Tax on record in which it has been stated on
Rules. page 15 in the column of 'Loan &
Advances' that Rs.3 lakhs was advanced
by complainant to Sushil Kumar.
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Sr. No. Accused Complainant
5: Cheque The accused has taken the defence that The complainant has argued that the
given for the the cheque was lost and that the same accused has taken two contradictory
purpose of has been misused by the complainant defences i.e., firstly, that the cheque was
ITR to the and he also took defence that he had lost and was misused by the complainant
complainant. given the cheque in question to the and secondly, that the cheque was
complainant for the purpose of ITR handed over by him to complainant for
assessment. ITR. Complainant further submitted that
the said defence is clear from the
testimony of DW1/ Accused as he stated
in his chief that "My signed cheque book
has been lost ............... I have lodged a
Fir regarding the missing bag containing
office document, visiting cards, ATM
Card, Bank Statement, Cheque Book,
Company Rubber Stamp, Voter I Card
and ITR" and in his crossexamination he
stated that "It is correct that the
complainant used to file my ITR. It is
correct that my defence in the cross
examination of the complainant is that the
subject signed cheque Ex. CW1/1 was
given to the complainant during the
process of the preparing my ITR. It is
wrong to suggest that the EX. CW1/1
was not given to the complainant during
the process of preparation of my ITR. I
am not able to recollect the date when the
subject cheque was given to the
complainant".
Thus, the accused has himself taken two
contradictory defences which falsifies the
defence taken by him and proves that he
wants to avoid his liability one way or the
other.
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Sr. No. Accused Complainant
6: Whether It was argued on behalf of accused that It was argued on behalf of complainant
complainant the complainant is not aware about the that accused in his examination as DW1
friend of office of the accused and he is also not himself admitted that he is friend of
accused or aware as to whether his office is situated complainant in following words : "I know
not. at Shakarpur or not which shows that complainant because he is my friend
complainant is not friend of accused. since 2000. I am still in talking terms with complainant when I am in court premises....... It is correct that complainant used to file my ITR".
Thus, it is clear that complainant and accused were friends and for that reason a friendly loan of Rs.3 lakhs was advanced by complainant to accused.
7: Notice It was argued on behalf of accused that The complainant submitted that the legal whether the legal notice was never served upon notice Ex. CW1/3 was sent to the served or not. the accused and that the complainant accused through Regd. Post as well as deliberately did not mention the name of through Courier and that as per the father of accused in the legal notice delivery report of DTDC Courier service, which was allegedly sent to the accused the notice was duly served upon the and rather in place of the same he wrote accused. Moreover, the accused has not 'C/o Sh. Rohit Chaudhary'. denied having received legal notice in his testimony as DW1 and even in his statement u/s 313 Cr.P.C.
Further, in the crossexamination of the complainant / CW1 it was suggested by the accused that a reply to legal notice was received by complainant or his counsel, which was denied by the complainant, but, which shows that the legal notice sent by complainant served upon accused as it can be the only reason for preparing the reply and for sending the same to the complainant and his counsel.
1. Incomplete address in postal receipt : As far as the first argument is concerned, the court relies upon a judgment of Hon'ble Gauhati High Court titled Mahmuda Khatun Vs. Ajit Chandra Deka AIR 1978 NOC 112 (GAU) where it was observed the Hon'ble High Court as under : Page No.: 10 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) The presumption of service of a notice sent under registered post is availabvle under sections 16 and 114 (e) of the Evidence Act as well as under Section 27 of the General Clauses Act only when the plaintiff proves that the letter was properly addressed and was put into the Post Office. The mere fact that the full address was given in the body of the notice, does not raise any presumption that the envelope containing the notice was also correctly addressed. At any rate presumption under Sections 16 and 114 (e ) of the Evidence Act as well as under Section 27 of the General Clauses Act is a rebuttable one. When the person on whom the notice is said to have been served appears before the Court and denies on oath that the notice was served on his, the presumption is rebutted and in such a case the evidence of the Postman becomes necessary. (emphasis supplied) In the present case, the complainant is relying upon the presumption which are in her favour u/s 16 and 114 (e) of the Evidence Act and under section 27 of General Clauses Act and the court understands that the said presumptions are not conclusive presumptions and that they are rebuttable one. However, in the present case nothing has been done by the accused to rebut the presumptions as mentioned above. He never denied on oath that the notice was served upon him and in absence of such denial on oath the presumption cannot be rebutted by merely saying that the address on the postal receipt and the courier receipt is incomplete, even in view of the aforesaid judgment. Had the accused denied on oath that he never received the legal notice sent by complainant, it would have become necessary for the complainant to examine the post man in order to prove service of notice. However, in absence of such denial on oath, the presumption stands unrebutted, more so because the address of accused as mentioned legal notice Ex. CW1/3 is the same as mentioned by the accused at the time of his testimony as DW1 and at the same address the summons of the court were also served upon the accused.
2. Payment of Rs.3 lakhs : As regards this issue, a perusal of the record reveals that the complainant had not initially filed any document except the cheque to show that he had advanced a sum of Rs.3 lakhs to the accused as friendly loan, Page No.: 11 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) but, at a later stage ITR for the Assessment Year 2010 2011 and Financial Year 2009 - 2010 was filed by the accused which is Ex. CW1/D1 and in the said ITR the advance of Rs.3 lakhs made by the complainant to the accused has been shown at Page No. 15. Thus, the complainant not only has the presumption u/s 118 and 139 of N.I. Act in his favaour, rather, he also has in his favour an additional evidence as contained in ITR Ex. CW1/D1. It has been argued by the accused that details of payment have not been furnished by the complainant and in view of the judgments titled (1) G. Veeresham Vs. S. Shiva Shankar and Another 2008 (1) DCR 143 of Andhra Pradesh High Court, (2) Ramakant Ramchandra Dalvi Vs. Rashmi Raju Mhatre & Anr. IV (2008) BC 529 of Bombay High Court and (3) Anjana Balkrishna Shewale Vs. Chayya Baban Jagdale and Anr. 2009 (1) DCR 420, the presumption u/s 139 N.I. Act stands rebutted. All the judgments cited by the accused are prior to the judgment of Hon'ble Apex Court titled Rangappa Vs. Mohan AIR 2010 SC 1898. In the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 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 as under : "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) Thus, the presumption u/s 139 N.I. Act as per this judgment of the Apex Court is not only a presumption of debt or liability but also presumption of legally recoverable debt or liability and in order to rebut this presumption the accused is Page No.: 12 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) required to produce evidence which has some evidentiary value and not only persuasive value. In the aforesaid case, the trial court had acquitted the accused in view of the discrepancies mentioned in para 6 of this judgment which is quoted below :
6. The trial judge found in favour of the accused by taking note of some discrepancies in the complainant's version. As per the trial judge, in the course of the crossexamination the complainant was not certain as to when the accused had actually issued the cheque. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. Later, it was stated that the cheque had been with the complainant about 1520 days prior to the presentation of the same for encashment, which would place the date of handing over of the cheque in January 2001. Furthermore, the trial judge noted that in the complaint it had been submitted that the complainant had paid Rs. 45,000 in cash as a hand loan to the accused, whereas during the crossexamination it appeared that the complainant had spent this amount during the construction of the accused's house from time to time and that the complainant had realised the extent of the liability after auditing the costs on completion of the construction. Apart from these discrepancies on part of the complainant, the trial judge also noted that the accused used to pay the complainant a monthly salary in lieu of his services as a building supervisor apart from periodically handing over money which was used for the construction of the house. In light of these regular payments, the trial judge found it unlikely that the complainant would have spent his own money on the construction work. With regard to these observations, the trial judge held that there was no material to substantiate that the accused had issued the cheque in relation to a legally enforceable debt. It was observed that the accused's failure to reply to the notice sent by the complainant did not attract the presumption under Section 139 of the Act since the complainant had failed to prove that he had given a hand loan to the accused and that the accused had issued a cheque as alleged. Furthermore, the trial judge erroneously decided that the offence made punishable by Section 138 of the Act had not been committed in this case since the alleged dishonour of cheque was not on account of insufficiency of funds since the accused had instructed his bank to stop payment. Accordingly, the trial judge had recorded a finding of acquittal.
Page No.: 13 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) However, the said finding of the trial court was reversed by the High Court and the order of the High Court was upheld in this judgment by the Apex Court for the reasons stated in para 15, quoted below : "15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. Furthermore, the instructions to `stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. 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. Apart from not raising a probable defence, the appellantaccused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the constructionrelated expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the constructionexpenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
In view of the aforesaid judgment, it is clear that the reverse onus cast upon the accused in view of the presumption u/s 139 N.I. Act impose an evidentiary burden and not a persuasive burden on the accused. Thus, the accused cannot say that he has no liability to honour the cheuqe only because the complainant has failed to bring on record documents to show the sources from which the money was arranged. The presumption u/s 139 N.I. Act cannot be so easily rebutted otherwise the entire object behind the incorporation of the presumption u/s 139 N.I. Act by the legislature in favour of the holder of the cheque would stand frustrated. Page No.: 14 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) Thus, this argument goes in favour of the complainant and not in favour of the accused.
3. Cheque Lost : In this regard a perusal of record reveals, that no FIR has been filed by the accused at the time of his examinationinchief and he has also not disclosed the number of FIR and has not produced any document to show that a complaint as regards the cheque Ex. CW1/1 was ever lodged by the accused with police authorities. Though, today i.e., on the date of judgment accused filed an application to bring on record a photocopy of the complaint made by him before the police as regards the lost cheque book, but, the said document cannot be read into evidence as the original of the same has not been produced and further because the said document has not been proved as per the Indian Evidence Act. Thus, it is true that the accused has not been able to prove that the cheque book was stolen and that the said cheque book contained the cheque in question.
Further, the contradictory stands taken by the accused in his testimony also create a serious doubt in the mind of the court as regards the veracity of the testimony of this witness and demolishes both the defences that has bee taken by the accused. The accused on the one hand states that the cheque in question was lost and has been misused by the accused and on the other hand he stated that the cheque was given to the complainant by him, during the process of preparation of ITR. These two contradictory stands taken by the accused demolishes his case beyond repair. Thus, this argument also goes in favour of the complainant and against the accused.
4. Loan beyond Rs.20,000/ in cash is in violation of Income Tax Rules : As regards this issue, a perusal of the complaint reveals that the complainant in his crossexamination admitted that as per the Income Tax Rules loan of Page No.: 15 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) Rs.20,000/ and above cannot be given in cash. However, mere violation of Income Tax Rules as regards the manner in which the transaction is to be made, does not absolve the accused of his liability to honour the cheque in question and repay the loan taken by him. The complainant in his ITR for the Assessment Year 2010 - 2011 and Financial Year 2009 - 2010 which is Ex. CW1/D1 has clearly shown that an advance of Rs.3 lakhs was made by him to the accused as is clearly visible from Page 15 of the said ITR. Thus, this argument also goes in favour of the complainant and against the accused.
5. Cheque given for the purpose of ITR to the complainant : A perusal of the record reveals that it has been the defence of accused throughout the cross examination of the complainant / CW1 that the cheque in question was given by him to the complainant for the purpose of ITR assessment. The suggestion "It is wrong to suggest that the cheque was given to me by accused for the purpose of ITR assessment" clearly depicts that the accused had taken the defence that the cheque in question was given in blank to the complainant for the purpose of ITR assessment, and that the same has been misused by the complainant. This defence further finds force from the admission of DW1 / accused in his cross that complainant used to file his ITR. This line of defence has been admitted by the accused in his crossexamination in following words:
"It is correct that the complainant used to file my ITR. It is correct that my defence in the crossexamination of the complainant is that the subject signed cheque Ex. CW1/1 was given to the complainant during the process of the preparing my ITR. It is wrong to suggest that the EX. CW1/1 was not given to the complainant during the process of preparation of my ITR. I am not able to recollect the date when the subject cheque was given to the complainant".
BUT, the accused has also taken an entirely contradictory defence that, he has Page No.: 16 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) signed his cheque book for repayment of Home Loan and that the same was lost and out of those cheques the present cheque has been misused by the complainant. These two contradictory stands taken by the accused demolishes his entire defence including his defence that the cheque was given in blank to the complainant for the purpose of ITR and that the same has been misused by the complainant.
6. Whether complainant friend of accused or not : As regards this issue it has been admitted by the accused himself in his crossexamination that he is friend of complainant since the year 2000. The admission of accused is in following words: "I know complainant because he is my friend since 2000. I am still in talking terms with complainant when I am in court premises....... It is correct that complainant used to file my ITR".
Thus, this issue is also decided in favour of the complainant and against the accused.
7. Notice whether served or not : A perusal of the record reveals that the legal notice Ex. CW1/3 was sent to the accused through Regd. Post as well as through Courier and that as per the delivery report of DTDC Courier service, the notice was duly served upon the accused. Moreover, the accused has not denied having received legal notice in his testimony as DW1 and even in his statement u/s 313 Cr.P.C.
Further, it is true that in the crossexamination of the complainant / CW1 it was suggested by the accused that a reply to legal notice was received by complainant or his counsel, which was denied by the complainant, which shows that the legal notice sent by complainant was served upon accused, as it can be the only reason for preparing the reply and for sending the same to the Page No.: 17 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) complainant and his counsel.
Thus, this issue is also decided in favour of the complainant and against the accused.
11. CONCLUSION : In view of the above discussions and cited judgments, it is clear that the accused has admitted his signature on the cheque and has not been able to prove the defence taken by him and also failed to rebut the presumption u/s 139 N.I. Act. Accordingly, all the necessary ingredients to make out the offence u/s 138 N.I. Act stands proved and accused Sushil Kumar is convicted for the offence u/s 138 N.I. Act.
Be heard separately on point of sentence on 21.02.2013. ANNOUNCED ON 11.02.2013.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/11.02.2013 Certified that this judgment contains 22 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/11.02.2013 Page No.: 18 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI.
CC No. : 74/1/11 PS : Preet Vihar Offence complained of : 138 N.I. Act Unique Case ID No. : 02402R0111912011 Sh. Binay Kumar S/o Sh. Prasadi Saw R/o D66, Dayanand Block, Shakarpur, Delhi92.
.............. Complainant Vs. Sh. Sushil Kumar C/o Sh. Rohit Chaudhary R/o 1/6310, 2 Floor, East Rohtas Nagar, Delhi53.
nd
............. Accused
Date of Conviction : 11.02.2013
Date of Sentence : 25.02.2013
ORDER ON SENTENCE
Accused Sushil Kumar was convicted for offence under section 138 of the Negotiable Instruments Act on 11.02.2013.
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 and in cases which are tried summarily, the punishment prescribed is imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of cheque or Page No.: 19 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) both.
The cheque amount in the present case is Rs.3,00,000/ hence as per section 138 of the N.I. Act and in view of judgment of Hon'ble Supreme Court titled R.Vijayan Vs. Baby AIR 2012 SC 528 (para 12), this court has the power to impose fine equivalent to twice the cheque amount which in the present is Rs.6,00,000/.
From the said fine, the court can compensate the complainant under section 357 (1) (b) of Cr.P.C for the loss or injury caused to him and can also apply a part of the fine in defraying the expenses incurred in the prosecution by the complainant u/s 357 (1) (a) Cr.P.C.
Arguments : The complainant has submitted that though the cheque was payable in year 2010 and about two 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 offence being an economic offence should be punished by an economic punishment and no purpose would be served by curtailing the liberty of the accused by sending him to imprisonment. He also made some submissions on the merits of the case and the judgment of the court, however, the same have not been discussed being not relevant to the issue at hand.
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 Page No.: 20 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) 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 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 in this case on 11.02.2013, hence, the accused is sentenced to undergo simple imprisonment for a period of four months in this case. Order as regards compensation/ fine: It is clear from the record that the cheque in question was payable in the year 2010 i.e., for approximately two years 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 the cheque amount and 9% p.a. interest thereon as per the judgment of Hon'ble Supreme Court titled R. Vijayan Vs. Baby AIR 2012 SC 528 (para 18) which comes out to approximately Rs.3,54,000/(Rs.3,00,000/ Principle + Rs.54,000/ interest approx.).
Page No.: 21 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E) As far as the expenses incurred by the complainant in prosecution of the case is concerned, the court is of the opinion that it would make the end of justice meet, if, expenses are determined at Rs.16,000/.
Thus, keeping in mind the compensation and expenses of prosecution as determined above, the accused is sentenced to pay fine of Rs.3,75,000/ which would be applied as under :
1. Rs.16,000/ as expenses incurred by complainant in prosecution of the case - to be paid to complainant from the fine recovered.
2. Rs.3,54,000/ as compensation for loss or injury suffered by complainant
- to be paid to complainant from the fine recovered.
3. Rs.5,000/ is the fine which will remain with the state. FINAL SENTENCE : As the accused has been convicted for offence under section 138 of N.I. Act in this case, therefore, the accused is sentenced to undergo simple imprisonment for a period of four months in this case and he is further sentenced to pay fine of Rs.3,75,000/ (three lakhs seventy five thousand only) in default Simple Imprisonment for two months.
The fine shall be payable within one month from today. It is, however, made clear that undergoing sentence in default of payment of fine shall not absolve the accused of his liability to pay fine as the same shall in such case be recoverable under section 421 of Cr.P.C.
(S.P.S. LALER) MM06(East)/KKD/25.02.2013 Page No.: 22 / 22 CC No. 74/1/11 S.P.S. Laler, MM06 (E)