Delhi District Court
Ca No. 33/14 Dod 21.1.2015 Satinder ... vs Ramesh Kumar on 21 January, 2015
CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
Criminal Appeal No. : 33/14
Unique Case ID No. : 02404R0201512014
In the matter of :-
Satinder Kumar
S/O Late Sh Karan Singh
R/O 297, VPO Barwala,
Delhi ....... Appellant
VERSUS
Ramesh Kumar
S/o Ch Pooran Singh
R/o 288, Village Pitampura
Delhi .....Respondent
Date of institution of appeal : 03.07.2014
Date of argument : 20.01.2015
Date of order : 21.01.2015
ORDER
1. By way of present appeal,
appellant/accused Satinder Kumar has assailed
the judgment dated 21.3.2014 and order on
sentence dated 07.06.2014 (hereinafter referred to as 'Impugned Order') passed by Sh Virender Singh, Ld MM Delhi in a complaint case titled as Ramesh Kumar vs Satinder Kumar, whereby the appellant/accused was convicted for the offence u/s 138 Negotiable Instrument Act and was CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 1 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar sentenced to undergo simple imprisonment for one year. He was further directed to pay a compensation of Rs 4,50,000/-( Four lac fifty Thousand ) to the respondent/complainant.
2. It is not necessary to set out the facts in detail. Suffice it to note , the brief facts are :-
a) Respondent/complainant Ramesh Kumar instituted a complaint case on 12.07.2007, against the appellant/accused making a request to summon and prosecute the appellant/accused for the offence u/s 138 of the N.I Act.
b) In the said complaint it was stated that appellant/accused Satinder Kumar was in urgent need of money therefore, respondent/complainant gave him a friendly loan of Rs 2,50,000/- in cash .
Appellant/accused returned some of the amount and in security of the remaining amount issued a cheque bearing no. 446402 dated 01.04.2007 ExCW1/A drawn on Oriental Bank of Commerce, Pehladpur Bangar Branch, Delhi in favour of the respondent/complainant for repayment of said loan.
c) When the aforesaid cheque was represented for encashment , it was received back dishonored with the remarks "insufficient funds" vide bank returning memo dated 17.05.2007 ExCW1/B. A legal notice dated 28.5.2007 ExCW1/C was issued but despite that no payment was received. Hence, the aforesaid complaint case was filed.
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3. Vide order dated 14.08.2007, appellant/accused was summoned by ld trial court and vide order dated 02.01.2010, appellant/accused was served upon notice u/s 251 CrPC for the offence u/s 138 of the N.I Act. Appellant/accused pleaded not guilty and claimed trial .
4. Respondent/complainant lead CE and has examined himself as CW1 and CW2 Smt Sarita Mishra, Manager, Oriental Bank of Commerce(bank of the appellant/accused).
5. Vide order dated 24.1.2013, CE was closed and thereafter statement of appellant/accused u/s 313 CrPC was recorded. Appellant/accused did not opt to lead any evidence in his defence .
6. After hearing the final argument , vide impugned order, appellant/accused was convicted for the offence u/s 138 of the Act and was sentenced as stated herein above, which is under challenge.
7. Respondent/complainant chose not to file any reply to the present appeal and has argued the matter straightway.
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8. Ld counsel for the appellant/accused argued that in the present case legal notice has not been served upon appellant/accused. He has taken me to the cross examination of respondent/complainant and pointed out that even as per the case of the respondent/complainant, legal notice was issued after one month from the date of dishonor of the cheque which is against the mandate of section 138 N.I Act. He further contented that respondent/complainant has failed to prove on record that any loan was given to the appellant/accused as no specific date or time or mode has been mentioned by the respondent/complainant.
9. On the contrary, ld counsel for the respondent/complainant submitted that notice was duly served upon the appellant /accused . Appellant/accused is resident of village where person is known by name of father and on that address notice was issued. He further submitted that total loan amount was Rs Two lakh fifty thousand out of which some amount was paid and for remaining amount appellant/accused had issued the cheque in question. Ld counsel further submitted that appellant/accused has failed to CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 4 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar show as to for what purpose cheque had been issued in favour of respondent/complainant.
10. I have heard the ld counsel for the appellant/accused, ld counsel for the respondent/complainant and perused the record including the Trial Court Record very carefully.
11. Following two issues have been raised by ld counsel for the appellant/accused:
a) Service of legal notice.
b) Existence of any debt or liability .
Service of Legal Notice.
12. One of the ingredients of section 138 is that the payee or the holder in due course of the cheque (respondent/complainant) makes a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque (appellant/accused) within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make payment of said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of said notice.
13. In the present case, it is not in CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 5 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar dispute that cheque ExCW1/A was returned unpaid by the drawer bank for the reason "insufficient funds". It is not the case of appellant/accused that the amount as mentioned in the cheque has already been paid after receipt of the legal notice. Now, the question arises whether the legal notice was served upon appellant/accused or not .
14. The copy of the legal notice ExCW1/C is on the record wherein the address of appellant/accused has been mentioned as "Sh Satinder Kumar s/o Late Sh Karan Singh, village and P&O Barwala, Delhi". The said notice is shown to have been sent to appellant/accused through UPC ExCW1/D and registered post ExCW1/E . The address on UPC has been shown as "Satinder Kumar s/o Late Sh Karan Singh, r/o H.NO 297, VPO Barwala , Delhi 39" whereas on the registered postal receipt ExCW1/E , the address has been shown as "Sh Satender Kumar , House no. 279, Village Barwala, Delhi".
15. It is not the case of appellant /accused that he is not resident of the village Barwala. In the present appeal, he has given the same address as mentioned on UPC receipt. In the bail bond furnished by the appellant/accused before the ld Trial Court, address given by him is the same as mentioned CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 6 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar in the legal notice. It is true that in the registered postal receipt the house number has been shown as 279 in place of 297. That appears to be a typographical mistake. I do find force in the argument of ld counsel for the respondent/complainant that in a village normally a person is identified and traced by his name and parentage rather then by house number. Even otherwise also, the legal notice ExCW1/C was issued through UPC also at a correct address belonging to appellant/accused .
16. In the light of aforesaid discussion, presumption as contained in Section 27 of General Clauses Act that legal notice bearing correct and complete address of the addressee which has been sent through UPC, would have been duly served upon the appellant/accused, would be invoked in favour of the respondent/complainant to the effect that legal notice was duly served upon the appellant/accused. The argument of ld counsel for the appellant/accused that from the cross examination of respondent/complainant it has come on record that he had met his counsel after one month of dishonor of cheque or he could not tell the number of pages of legal notice etc., would not make any difference when it has come CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 7 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar on the record that legal notice was issued on 29.5.2007.The returning memo ExCW1/B is dated 17.5.2007.
17. Moreover, in the given facts and circumstances the decision of the case titled as C.C Alavi Haji vs Palapetty Muhammed and anrs , III (2007) BC 533 (SC) would come for the rescue of respondent/complainant as far as service of legal notice is concerned.
18. In that case, Hon'ble Supreme Court held :
"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (be receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 8 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar contrary under section 27 of the G.C Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation . As observed in Bhaskaran's case (Supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act".
b) Existence of any debt or liability .
19. This takes me to the second argument raised by Ld counsel of appellant/accused that respondent/complainant could not establish that there was any legally enforceable debt.
20. One of the most essential ingredients of Section 138 N.I Act is that there must be a legally enforceable debt. The respondent/complainant was required to prove his case beyond reasonable doubt against the appellant/accused whereas the appellant/accused was only required to prove his defence on the basis of preponderance of probabilities. The probable defence taken by him may be proved either during cross examination of complainant's witnesses and/or by adducing CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 9 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar his own evidence. In this regard help can be taken from the decision of a case titled as "Kamala S. v. Vidhyadharan M.J": 2 (2007) 5 SCC 264, wherein it was observed that :
"xxxxxxx This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefore can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on the accused is not as high as that of the prosecution. Xxxxxxx"
21. In order to appreciate the contentions raised by Ld counsel of respondent/complainant that there is a presumption in favour of respondent/complainant that the cheque in question has been issued against legally enforceable debt, it is appropriate to refer to the provision contained in Section 139 N.I Act which reads as under:
" Presumption in favour of holder:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability".
22. The careful perusal of above mentioned provision clearly shows that it merely raises a presumption as regards the fact that CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 10 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar cheque has been issued in discharge of any debt or other liability and not beyond that. In other words, the provision contained in Section 139 N.I Act does not raise presumption that the cheque in question has been issued against legally enforceable debt. Thus, the respondent/complainant is still required to show that the cheque in question has been issued against legally recoverable debt. While saying so, I am also fortified by the judgment of Hon'ble Apex Court in the matter of "Krishna Janardhan Bhatt Vs. Dattatraya G. Hedge" : 2008(4) SCC 54, wherein the Hon'ble Apex Court has also expressed a word of caution by stating that the Courts must be on guard to see that merely on the application of presumption as provided in section 139 N.I Act, same may not lead to injustice or mistaken conviction.
23. In view of the aforesaid discussion, respondent/complainant cannot be allowed to say that there was legally enforceable debt by merely taking the help of aforesaid provision of law, as indicated.
24. Moreover, the presumptions attached with negotiable instruments like cheque as provided U/s 118 and 139 of the Act that every CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 11 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar negotiable instrument was made or drawn for consideration and that holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability, are rebuttable in nature. In M/s. Kumar Exports v. M/s. Sharma Carpets, 2009 AIR(SC) 1518, Hon'ble Supreme Court held as under:
" The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 12 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions fact, for instance, those mentioned in Section in 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue".
25. In another case titled as Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal reported at AIR 1999(SC) 1008, Hon'ble Apex Court held that:
" the defendant can prove the nonexistence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis- entitle him to the grant of relief on the basis of CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 13 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies......"
26. Now, it is to be seen as to whether the respondent/complainant has been able to prove that the cheque in question was issued against legally enforceable debt or not. It is also to be determined as to whether the appellant/accused has rebutted the presumptions contained in Section 118(a) and 139 of N.I Act or not.
27. In this regard, the averments made in the complaint as well as in the affidavit filed in lieu of evidence and the legal notice ExCW1/C need to be mentioned .
Para 2 (relevant portion) of the complaint reads :-
"..... The accused had approached the complainant in respect of urgent need of money and that the accused requested the complainant for a friendly loan of Rs 2,50,000/-( Rs Two lacs fifty thousand) and the complainant being known to the accused persons and being family friends had given Rs 2,50,000/- in cash , as loan "
Para 3 of the complaint reads:-
".. That the accused returned some of the amount and in security of the remaining amount issued a cheque bearing no, 446402 amounting to Rs 2,32,071/- dated 1.4.2007 drawn on Oriental Bank of Commerce, Prahladpur Bangar Branch , Delhi"
CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 14 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar The para 2 of legal notice ExCW1 reads:-
"That You the addressee approached my client for obtaining friendly loan of total amounting to Rs 2,32,071 /- ( Two lac thirty two thousand and seventy one only) at various points of time"
28. Record would indicate that in the complaint as well as in the affidavit filed in lieu of evidence , an impression has been given by the respondent/complainant that appellant/accused was granted a loan of Rs 2,50,000/- and it was a single transaction but the demand as made in the legal notice indicated herein above is contrary to that . As per legal notice, the loan amount was Rs 2,32,071/- and it was not a single transaction. This has created a serious doubt about existence of any legally enforceable debt against the appellant/accused.
29. Further, during his cross examination , respondent/complainant replied that; he had business transaction with the appellant/accused for the last 10-15 years; that he make full and final settlement prior two months from the issuance of the cheque; that he cannot file the settlement documents before the court ; that he cannot tell the date, month and year in which Rs 2,50,000/- were taken by appellant/accused from him as mentioned in para 2 of the complaint ; he does not remember who was present at the time of full and final settlement with the accused.
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30. From the aforesaid cross examination, it has come on the record that there was full and final settlement between the both the parties. What were the terms and conditions of that settlement, has not come on the record. What was the date of that settlement , in this regard also respondent/complainant remained silent. He could not even tell the date, month and even the year in which the alleged loan was extended by him to the appellant/accused. Whether it was extended after full and final settlement or prior to that, has also not surfaced. The allegations of respondent/complainant are uncertain, unspecific and vague. Further, on one occasion he says he had granted a loan of Rs 2,50,000/- in cash but subsequently claimed that loan amount was Rs 2,32,071/-. Even, respondent/complainant is not sure whether loan amount was Rs 2,50,000/- or Rs 2,32,071/-.
31. Although, it was alleged that appellant/ accused returned some of the amount and for the remaining amount cheque in question was issued by the appellant/accused. Again , in this regard also allegations appears to be general , uncertain and unspecific. What amount was returned? When it was returned? What was the mode ? remained unexplained. It was the duty of the CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 16 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar respondent/complainant to establish the existence of legally enforceable debt beyond all reasonable doubt which is failing in the present case.
32. Further, it has come on record that there is no document or receipt to show that said loan was ever granted to appellant/accused. The conduct of respondent/complainant in not obtaining any receipt against loan amount of Rs 2,50,000/- from appellant/accused further casts doubt upon the story as put forward by him that he had advanced friendly loan to the appellant/accused.
33. Moreover, respondent/complainant is not shown to have disclosed the loan transaction, in his income tax return. He has also nowhere disclosed the source through which such huge amount of Rs. 2 ,50,000/- was arranged/generated which he advanced to the appellant/accused. Further more, the payment of a sum of Rs. 2,50,000/ in cash by respondent/complainant to the appellant/accused as alleged in this case, was also in violation of Section 269 of Income Tax Act.
34. In the matter titled as " Sanjay Mishra Vs. CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 17 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar Kanishka Kapoor @ Nicky and Anr. : 2009(3) Civil Court Cases 563(Bombay), almost similar facts were involved as the complainant therein also alleged to have extended financial help to the accused but did not disclose the said transaction in Income Tax Return. It was held by Bombay High Court that since the said transaction was in respect of an unaccounted amount, it cannot be said to be legally enforceable debt and consequently, upheld the order of acquittal passed by Trial Court in the said matter.
35. In another matter titled as " Rose Mariya Fernandez (Mrs.) Vs. Ms. Naso N. Kepkar" reported in 2010 II AD(Crl.) (Bombay) 177, after considering the inconsistencies and contradictions occurring in the evidence of complainant including the fact that complainant admitted during her evidence that various amounts were paid by her son, daughter and daughter in law and also the fact that date of loan was not mentioned by complainant, it was held that doubt is created on the theory of loan transaction propounded by complainant and consequently, the High Court upheld the order of acquittal passed by Trial Court in the said matter.
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36. In the matter titled as "Kulvinder Singh Vs. Kafeel Ahmed" reported at 2013 (1) DCR 417, it was alleged by complainant that he had advanced loan of Rs. 9,30,000/ in the first instance to the accused and in this backdrop, it has been held by our own High Court that if such a huge amount of money is advanced as a loan to the accused, the complainant ought to have shown to the Court as to the source from where he had generated such a huge amount.
37. Similar view has been taken by Hon'ble Apex Court in the recent decision delivered in the matter of " K. Subramani Vs. K. Damodara Naidu : Criminal Appeal No. 2402 of 2014 decided on 13.11.14 wherein also facts were more or less similar as complainant had failed to prove the source of income through which he was in a position to advance loan of Rs. 14,00,000/ to the accused. It was held by Hon'ble Apex Court that the complainant failed to prove that there was legally recoverable debt payable by accused to him and consequently, Hon'ble Apex Court upheld the judgment of acquittal passed by trial Court while setting aside the judgment passed by Hon'ble High Court of Karnataka.
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38. In view of the above mentioned reasons and the authorities on the point in issue, this Court is of the view that complainant had failed to prove beyond reasonable doubt that the cheque in question E x C W 1 / A was issued by appellant/accused towards discharge of legal enforceable debt or liability. Accordingly, the conclusion of ld Trial Court that complainant had been able to establish his case for offence U/s 138 N.I Act against accused/appellant beyond reasonable doubt, thus suffers from material illegality and is, therefore, liable to be set aside.
39. Resultantly, the present appeal is accepted and the impugned judgment dated 21.3.2014 convicting the appellant/accused for the offence U/s 138 N.I Act and order on sentence dated 07.06.2014 passed by Ld Trial Court, are hereby set aside.
40. Consequently, the complaint case bearing C.C no. 2246/1/07 filed by respondent/complainant against appellant/accused stands dismissed.
41. TCR along with the copy of this order be sent back to the Ld Trial Court CA no. 33/14 Satinder Kumar vs Ramesh Kumar (Page 20 of 21 ) CA no. 33/14 DOD 21.1.2015 Satinder Kumar vs Ramesh Kumar concerned.
42. Appeal file be consigned to record room.
Announced in the (Rajesh Kumar Goel) open court ASJ-5,North/Rohini Court today i.e 21.1.2015.
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