Delhi District Court
Cc No.: 2921/10 Pnb vs Om Prakash Kishan Lal & Co. 1/14 on 4 April, 2012
IN THE COURT OF MS MANISHA TRIPATHY: MM (09): SPECIAL
COURT NO.9: DWARKA COURT: NEW DELHI
In the matter of:
CRID NO. 02405R1321592005
CC NO.: 2921/10
PUNJAB NATIONAL BANK
A Body Corporate Constituted under
The Banking Companies (Acquisition
& Transfer of Undertaking) Act, 1970
having its Head Office at
7, Bhikaji Cama Place, New Delhi
and branches amongst others at
A1, Panchwari, New Subzi Mandi,
Azadpur, Delhi110 033
... Complainant
Vs.
1.M/S OM PRAKASH KISHAN LAL & CO.
Through its proprietor Sh. Mukesh
2. Mr. Mukesh Prop. M/s Om Prakash Kishan Lal & Co.
Both 22, Transport Centre
Azadpur, Delhi ....Accused
Offence Complained of : u/s 138 N.I. Act
CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 1/14
Date of Institution of Complaint : 20/01/2005
Plea of Accused : Not Guilty
Date of Final Arguments Heard : 20/03/2012
Decision : Acquitted
Date of Decision : 04/04/2012
:JUDGMENT:
1. Present case was instituted on a complaint filed by Punjab National Bank (hereinafter referred to as 'the complainant) against M/s Om Prakash Kishan Lal & Co. (hereinafter referred to as 'the accused') u/s 138 of Negotiable Instrument Act 1881(hereinafter referred to as 'the act'). Brief facts of the case as alleged by complainant are that the accused no. 2 being proprietor of accused no. 1 firm issued A/c payee cheque bearing no. 634163 dated 09/11/2004 for a sum of Rs.4,95,000/ drawn on The Jammu & Kashmir Bank Ltd. in favour of M/s Sukhmani Tyres, a proprietorship concern of Sh. Kawaljeet Singh, 19, Transport Centre, New Sabji Mandi, Azadpur, Delhi(hereinafter referred to as 'the said cheque'). The said cheque was purchased by complainant vide Voucher dated 09/11/2004 and thus complainant became its holder in due course. Upon presentation for encashment the said cheque was returned unpaid vide memo dated 11/11/2004 with remarks 'Funds Insufficient'. The complainant requested M/s Sukhmani Tyres (hereinafter referred to 'the payee') verbally as well as vide letter dated 20/11/2004 to liquidate the said cheque amount and thereafter, accused was requested by the payee to liquidate the said cheque. The CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 2/14 request did not yield any positive response from the accused, hence, complainant sent a legal notice to the accused on 27/11/2004 demanding the cheque amount. Despite service of notice, accused failed to pay the cheque amount. Therefore, the present complaint was filed by Sh. V.K. Aggarwal, Authorized representative of the complainant, on 17/02/2005.
2. As a prima facie case was made out on the basis of material on record, the accused was summoned on 17/02/2005. The accused made first appearance on 07/12/2010. Notice u/s 251 CrPC was served upon him on 18/01/2011 to which he pleaded not guilty and claimed trial.
3. Along with complaint, AR of the complainant had filed pre summoning evidence by way of affidavit wherein he reiterated the allegations made in the complaint. He exhibited following documents :
i Power of attorney Ex.CW1/1
ii cheque bearing no. '634163' dated 09/11/2004 Ex.CW1/2 iii Purchase voucher dated 09/11/2004 Ex.CW1/3 iv cheque returning memo dated 11/11/2004 Ex.CW1/4 v Copy of legal demand notice dated 27/11/2004 Ex.CW1/5 vi Postal Receipts dated 08/12/2004 Ex.CW1/6 vii UPC receipt Ex.CW1/7 viii AD cards Ex.CW1/8 & Ex.CW1/9
4. Later on Sh. H.K. Batra was substituted as authorized representative of the CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 3/14 complainant. He filed post summoning evidence by way of affidavit wherein he reiterated the contents of the complaint and relied on the documents exhibited by the previous AR. He exhibited the following additional documents besides the aforesaid documents: i. Evidence by way of affidavit Ex.CW1/C1 ii Power of attorney Ex.CW1/1A iii Account Ledger Inquiry Ex. CW1/D1 iv Purchase Agreement Ex.CW1/D2
5. Accused was granted opportunity to cross examine complainant witness. Thereafter complainant evidence was closed and entire evidence against the accused was put to him. Statement of the accused was recorded on 27/07/2011 u/s 313 CrPC. Accused denied issuance of the said cheque and his signatures thereon. He further denied his liability towards the original payee or the complainant. He further denied receiving of legal demand notice and expressed his intent to lead defence evidence.
6. Thereafter, evidence was led by the accused in his defence. The accused led following oral evidence i Deposition of Accused himself u/s. 315 Cr.P.C. as DW1 ii Deposition of Sh. NajmusSalam S/o Sh. Islamuddin, Clerk, Jammu & Kashmir Bank Ltd. Subji Mandi, Azadpur (where the account of the accused was operating) as DW2 CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 4/14
7. DW2 exhibited following documents: i Identification card of DW2 Ex.DW2/1 ii Signature card of accused Ex.DW2/2 iii Request form for opening of CD account of accused Ex.DW2/3
8. Thereafter, final arguments were advanced by both the parties. I have given my thoughtful consideration to the arguments advanced by both the ld. Counsels.
9. On the basis of evidence adduced and arguments advanced by parties following points arise for determination by this court
1. Whether legal demand notice was served upon the accused.
2. Whether the said cheque was issued by the accused.
3. Whether the complainant was holder in due course of the said cheque.
10. Before proceeding further it will be useful to have a look at relevant provision of the Act. Section 138 of the Act is being reproduced herein for ease of reference "138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 5/14 year", or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days"
of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
11. Thus, for an offence under s. 138 NI Act essential ingredients that must be established are as follows • Issuance of cheque by the accused on an account maintained by him with a bank;
• The cheque must have been presented to the bank within the period of six months from the date of the cheque or within the period of its validity; • Upon presentation for encashment, the cheque must have been returned unpaid;
• The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding the return of the cheque;
• The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal demand notice.
CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 6/14 • The cheque must have been issued in discharge of legal debt or liability;
12. Now I shall proceed to decide the points raised for determination. (I)Whether Service of legal demand notice on the accused as envisaged u/s. 138 of the Act is proved.
13. Regarding service of legal demand notice, it was deposed by CW1 that legal demand notice Ex.CW1/5 was sent to the accused through registered AD (receipt Ex.CW1/6) and UPC (receipt EX.CW1/7) respectively at 22, Transport Centre, Azadpur, Delhi, which was received by accused as acknowledgment cards Ex. CW1/8 & Ex.CW1/9 were received back. However the witness did not depose that AD Card had been signed by the accused. His testimony is silent on this aspect.
14. On the other hand, accused deposed that he never received any notice or any other communication from the complainant. The accused affirmed and deposed that M/s Om Prakash Kishan Lal never existed at 22, Transport Centre, Azadpur, Delhi at any point of time. He further got produced the records pertaining to his bank account with the Drawee Bank i.e., the account opening form Ex. DW2/3 which reflects that address of the accused was different from the address mentioned in legal demand notice. During the cross examination of the accused it was not even put to the accused that address given in the complaint and legal demand notice was his correct address. It is settled proposition of law that a party is bound to put its case to opponent's witness during crossexamination when opponent's witness appears and CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 7/14 deposes on any material issue. In Sarwan Singh v. State of Punjab AIR 2003 SC 3652 Hon'ble supreme court reiterated this proposition in following words "...It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination, it must follow that the evidence tendered on that issue ought to be accepted. It goes without saying that a skillful crossexaminer must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they must be taken as an acceptance of the truth of that part of witness's evidence."
15. Complainant failed to put any suggestion to DW1 that legal demand notice was correctly addressed or accused was available at said address at relevant time. Even otherwise in teeth of such affirmative evidence denying and challenging the correctness of the address on which legal demand notice was served, onus shifted upon complainant to prove that legal demand notice was indeed sent at the correct address of the accused. However, no evidence was produced by complainant. In fact, complainant appeared to be unsure regarding correctness of address. Deposition of CW1 on this issue in his cross examination is reproduced herein below:
"I do not know how the address given in the complaint was procured by the complainant bank. I do not know whether the address given in legal demand notice belongs to accused no.1 or accused no.2. It is wrong to suggest address on legal demand notice doesn't belong to accused no.1 and accused no.2. Vol. I am stating the facts on the basis of records. I cannot tell for sure how address of the accused was procured by the complainant. It is possible that complainant bank might have verified the address of the accused with the banker of the accused or some other person verbally."
CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 8/14
16. Thus, the complainant's witness was unable to explain the source from which the alleged address of the accused was procured and he was unable to depose affirmatively as to its correctness. It ought not be forgotten that the accused was not having any account with the complainant bank and the complainant had no means of ascertaining his address other than from the banker of the accused or the payee of the said cheque. The address with the banker of the accused is different as evident from Ex. DW2/3 and it is not even the case of the complainant that address was so obtained. No document has been bought on record to show that the address mentioned on the legal notice was as per the records of the complainant nor the Payee was examined. The complainant thus failed to discharge the onus placed upon it. Consequently, correctness of the address for the purposes of service of legal demand notice on the accused has not been established by the complainant and the accused has managed to show that the same is incorrect. In that view of the matter the service of legal notice is not proved.
(II)Whether issuance of the said cheque by the accused is proved.
17. It was argued on behalf of complainant that the said cheque is in its possession, and it is shown to be obtained by paying valid consideration to original payee as reflected in statement of account Ex.CW1/D1, therefore, complainant is entitled to presumption u/s.118 of N.I. Act. that it is holder in due course. It was further argued that the drawer of the cheque is estopped from raising the plea that the cheque was not valid and in view of Sec.120 of the Act, now the accused can not deny validity of the cheque, including his signatures thereon. On the other hand it was argued on behalf of accused that burden was upon complainant to prove that CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 9/14 accused had issued the cheque. On this issue reliance was also placed by the complainant on judgment of Hon'ble High Court of Delhi in Investor Plaza v.Vijay Sachdev & Ors. 181 (2011) DLT 674.
18. Undoubtedly, the initial burden is upon complainant to prove that cheque was issued by accused.(Kundan Lal v Custodian, Evacuee Property (AIR 1961 SC 1316). In this regard The Indian Evidence Act 1872 lays down as under:
S.101 Burden of proof: Whoever desires any court to give judgement as to any legal right or liability dependent upon the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
S.102 On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
19. On this issue, CW1 deposed that accused had issued the impugned cheque. However, the case of the complainant is that it is a holder in due course and therefore the complainant has neither received the said cheque from the accused and neither had its witness, nor had the witness seen the said cheque being signed. His testimony on the aspect of execution of the said cheque is therefore of little value. It may be pertinent to note here that the payee named in the cheque was not examined as a complainant witness.
20. To my mind the execution of the cheque cannot be said to be proved on CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 10/14 this evidence itself. However, assuming that the above testimony was sufficient to establish the execution of the cheque and shift the onus upon the accused to show that the cheque was not signed by him I shall now examine the evidence of the accused and the cross examination by complainant on this aspect.
21. In his deposition as DW1 the accused denied issuing the said cheque and also denied that the said cheque bore his signatures thereupon. During defence evidence, Cheque was sent to FSL for obtaining expert opinion as to whether accused had signed the cheque. For this purpose signature card of the accused was called from his banker i.e. Jammu & Kashmir Bank Ltd. and sent for comparison with the cheque. After comparison of the signatures on signature card and impugned cheque it was reported by expert of FSL that model and design of signatures on signature card and impugned cheque were different, hence technically not comparable. It was clarified that further attempt can be made if some more standard signatures of the concerned person of the similar model as appeared in questioned signatures, if available, may be procured & sent for examination .
However , the conclusion that the signatures do not match at all is evident from the report. Even on the bare perusal of the signatures it can be noticed that there is nothing in common between the two signatures, initials and style being completely different.
22. In the instant case, the accused entered the witness box and categorically denied that he had signed the said cheque. The onus to my mind shifted on the complainant and he was bound to dispute this evidence. During the cross examination CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 11/14 of the accused, no suggestion was given to the accused that he had intentionally signed the said cheque in a different style. Since the accused in this case has denied that he had executed the said cheque or it was signed by him and he also brought his signatures on record which are evidently different and since it is not the case of the complainant that the accused intentionally signed the cheque in a different manner nor any evidence has been led on this account, the complainant has failed to discharge the onus placed upon it.
23. As far as the decision in Investor Plaza v.Vijay Sachdev & Ors. [181(2011)DLT 674] is concerned, the facts of that case are clearly distinguishable from the facts of present case. In the above mentioned case, The Hon'ble High Court had set aside an order of acquittal passed by Ld. Magistrate, where ignoring evidence of bank witnesses Ld. Magistrate had held that cheque was returned on account of 'difference in signature' and ground of 'insufficiency of fund' was added later on, whereas, in fact, cheque was returned on both grounds i.e. ,'Funds Insufficient' and 'signature differs'. In that case, issuance of cheque or signature thereon was not denied by the drawee even though there was structural defect in the cheque and one of the ground of return was 'signatures differ'.
24. In the instant case, accused has denied his signatures on the cheque. Thus, above mentioned judgment is not applicable in the facts of present case. Accordingly, drawing of the said cheque by the accused is not proved by the complainant.
25. Now, coming back to the arguments of Ld. Counsel for the complainant, It is a settled proposition of law that the presumption u/s. 118 of the Act arises only CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 12/14 when there is a negotiable instrument admitted to have been executed. If the execution is denied, no presumption arises until execution according to law is proved by the complainant. As execution of the said cheque is not proved in the instant case, the complainant can't claim benefit of any presumption or estoppel under law. (III) Whether the complainant is holder in due course of the said cheque.
26. On this issue, CW1 deposed that complainant became holder in due course of the impugned cheque after purchasing it from the payee vide purchase voucher Ex.CW1/3. He also produced purchase agreement Ex.CW1/D2. Accused claimed that he had not issued the cheque to the payee as he had no dealing whatsoever with the payee and contended that for the said reason complainant could not be holder in due course. He also challenged genuineness of purchase voucher and purchase agreement and endorsement on the said cheque contending that purchase voucher and purchase agreement and the said cheque didn't bear signature of the payee. The payee was not called to prove that he had executed purchase voucher and purchase agreement or endorsed the said cheque . Hence, purchase voucher, purchase agreement and endorsement on the said cheque were not proved as per law. In totality of circumstances and more particularly in view of denial of accused regarding execution of the said cheque as well as regarding any dealing with payee, it was imperative for complainant to examine the payee to prove that it was holder in due course. Having omitted to do so, complainant has been unable to to prove that it was holder in due course of impugned cheque.
CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 13/14 Decision
27. For the reasons discussed herein above, complainant has failed to prove its case. Accordingly, Accused is acquitted of offence punishable u/s. 138 N.I. Act.
Announced in Open Court
on 04/04/2012 (MANISHA TRIPATHY)
METROPOLITAN MAGISTRATE,
SPECIAL COURT(09), DWARKA COURTS,
NEW DELHI
CC NO.: 2921/10 PNB Vs Om Prakash Kishan Lal & Co. 14/14