Delhi District Court
Sanjeev Kumar vs Bivas @ Vibhash Bhattacharya on 21 May, 2024
CC No. 1325/17
Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya
PS: Krishna Nagar
IN THE COURT OF MS POOJA YADAV,
METROPOLITAN MAGISTRATE (NI ACT),
KARKARDOOMA COURTS, DELHI
Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya
CC NO. 1325/2017 [PS:Krishna Nagar]
CNR No. DLET020026772017
Sh. Sanjeev Kumar
S/o Sh. Mahesh Bal Sharma
R/o 8-A, New Layalpur,
Krishna Nagar,
Delhi-110 051 ...............Complainant
Vs.
Sh. Bivas @ Vibhash Bhattacharya
S/o Sh. Vibhuti Bhattacharya
R/o K-1/102, 2nd Floor, (Right hand side)
Above Juneja Restaurant,
Opp. Pocket-40, C.R. Park,
New Delhi-110 019 .......................Accused
Complaint Case No. : 1325/2017
Date of Institution : 01.05.2017
Offence alleged : Section 138 Negotiable Instruments
Act, 1881.
Plea of the Accused : Pleaded not guilty.
Final Order : CONVICTION
Date of reservation : 16.05.2024
Date of Decision : 21.05.2024
Argued by:
Sh. Gaurav Dalal, Ld. Counsel for Complainant.
Sh. Nagender Kumar, Ld. Counsel for Accused.
Digitally signed
Page no.1 of 25 POOJA byYADAV
POOJA
YADAV Date: 2024.05.21
18:08:39 -07'00'
CC No. 1325/17
Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya
PS: Krishna Nagar
JUDGEMENT
1. The Complainant has filed the present Complaint against the Accused under section 138 Negotiable Instruments Act, 1881.
FACTUAL MATRIX
2. The brief facts as alleged by Sh. Sanjeev Kumar (hereinafter referred to as 'the Complainant') are that Mr. Bivas @ Vibhash Bhattacharya (hereinafter referred to as 'the Accused') was in dire need of money for his business purposes and thus, took a friendly loan of Rs. 5 lakh, in the month of November, 2013 to be repaid within 2 years. On lapse of assured time, the money remained unpaid, the Complainant approached the Accused for repayment of loan, to which the Accused sought further fifteen months and also assured that he shall pay 2% interest till February 2017. Thereafter, the Accused allegedly started paying interest as agreed, i.e., 2% per month and for the repayment of loan amount, on 02.02.2017, the Accused issued the cheque in question bearing no. 384238, for a sum of Rs.5,00,000/- with the assurance that the same shall be honoured as and when presented. The Complainant presented the said cheque for encashment, however, the same returned dishonoured with the remarks "Funds Insufficient", vide its cheque return memo. Thereafter, the Complainant approached the Accused and apprised him of the fate of the cheque, but to no avail which constrained him to issue the statutory legal demand notice which was duly served upon the Accused and instead of making payment, the Accused replied to the legal demand notice vide his reply dt. 06.04.2017.
3. Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (for short "the NI Act") was filed by the Complainant, praying for the Accused to be summoned, tried and punished Page no.2 of 25 POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 18:09:01 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar for commission of the offence u/s 138 of the Negotiable Instruments Act. The Complainant has further averred that the matter falls within the territorial jurisdiction of this Court; thus, being tenable at law.
PROCEEDINGS BEFORE THE COURT PRE-SUMMONING EVIDENCE:
4. That in order to prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit i.e., Ex. CW-1/A on 24.06.2017 wherein the Complainant affirmed the facts stated in the present complaint and relied upon the following documents:
i. Ex. CW 1/A: Evidence by way of affidavit. ii. Ex. CW 1/1: Cheque in question, bearing no. 384238, dt. 08.02.2017 for a sum of Rs. 5,00,000/- drawn on United Bank of India.
iii. Ex. CW1/2: Return memo dt. 27.02.2017 qua cheque in question with remarks Funds Insufficient. iv. Ex. CW1/3: Legal demand Notice dated 22.03.2017. v. Ex. CW1/4 to Ex. CW1/ 5: Registered and Postal Receipts. vi. Ex. CW1/6: Reply dated 06.04.2017 given by the Accused to the statutory legal demand issued by the Complainant.
COGNIZANCE & SUMMONING OF THE ACCUSED:
5. That, after considering the Pre-summoning evidence led by the Complainant and the submissions made by him, the Court took cognizance and issued summons to the Accused vide order dated 24.06.2017.
6. The Accused entered his appearance through his counsel on 11.05.2018 and himself appeared before this court on 24.09.2018 for first time. He was then admitted to bail on Digitally signed Page no.3 of 25 POOJA byYADAV POOJA YADAV 18:09:15 -07'00' Date: 2024.05.21 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar furnishing bail bonds in the sum of Rs. 50,000/- with a surety in like amount. Bail bonds were furnished and accepted on 24.09.2018.
NOTICE U/S- 251 CR.P.C:
7. That on 24.09.2018, Notice u/s- 251 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') containing the substance of accusation, for the offence under Section 138 of the Act was served upon the Accused to which he pleaded not guilty and claimed trial. The Accused admitted his signature on the cheque in question, name of his bank and account number.
However, he denied filling the body of cheque in question. In defence, it was stated by the Accused that the cheque in question was given to one Sh. Sanjeev Kumar Joshi by him as he had taken a loan of Rs. 50,000/- in cash from him in the year 2007/2008. He stated that he had already repaid the said amount to Sh. Sanjeev Joshi and had seen the Complainant at the home of Sh. Sanjeev Joshi on few occasions. He further stated that he had never taken single penny from the Complainant till then. He admitted having received the legal demand notice issued by the Complainant and replying to the same.
EVIDENCE OF THE COMPLAINANT:
8. That after the Notice u/s -251 Cr.P.C containing the substance of accusation was served upon the Accused, one opportunity to cross-examine the Complainant was granted to the Accused considering the defence taken by the Accused.
9. Following this, the case proceeded to the stage of Complainant's evidence (CE). The Complainant was examined as CW-1 on 28.01.2019 who adopted his pre-summoning Digitally signed POOJA byYADAV POOJA Page no.4 of 25 YADAV Date: 2024.05.21 18:09:29 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar evidence as post-summoning evidence as it is including the documents, Ex. CW1/1 to Ex. CW1/6 and was partly cross- examined. He was further cross-examined on 28.09.2019. On 28.09.2019, he produced copy of his bank passbook of Union Bank of India to show withdrawal of money from his account and the said passbook was exhibited as Ex. CW-1/7. He was then discharged on 28.09.2019. Thereafter, evidence on behalf of the Complainant stood closed. That being the case, the matter was then listed for statement of the Accused u/s 313 Cr.P.C read with Section 281 Cr.P.C.
STATEMENT OF THE ACCUSED:
10. That in order to give an opportunity to the Accused to personally explain all the incriminating circumstances appearing in evidence against him, statement of the Accused under Section 313 Cr.P.C read with Section 281 Cr.P.C was recorded on 26.11.2019 without oath wherein all the incriminating circumstances appearing in evidence against the Accused were put to him. The Accused admitted his signature on the cheque in question and name of his bank and account number. However, he denied filling the particulars thereon. He stated that though he had seen the Complainant, however, he never had friendly relations with the Complainant. He denied approaching the Complainant to seek friendly loan of Rs. 5 lakh in last week of November 2013 for a period of 2 years and receiving the same. He further denied having any conversation with the Complainant on failure to pay the above-said alleged loan amount in 2 years that he sought extension of time for further 15 months and agreed to pay interest @ 2% up to February 2017. In his defence, he reiterated his stance taken in notice u/s-251 Cr.P.C., i.e., the cheque in question was Page no.5 of 25 POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 18:09:43 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar given to one Mr. Sanjeev Joshi from whom loan of Rs. 50,000/-
was taken by him and he had already repaid the loan amount to him. He was not aware as to how his cheque, i.e., the cheque in question came in possession of the Complainant, thus, denied his liability towards the Complainant. The Accused opted to lead defence evidence, thus the matter was listed for defence evidence.
DEFENCE EVIDENCE
11. The Accused himself entered the witness box on 17.01.2020 as DW-1 and was partly examined-in-chief. On 15.02.2020, the Accused produced his ITR for the year 2013-14, 2014-15 which were exhibited as Ex.DW1/1 and Ex. DW1/2 respectively. The Accused was then cross-examined and discharged on 26.02.2021. Thereafter, one Sh. Vinod Kumar Sharma was examined as DW-2 on 09.03.2022 who produced Form-32 to show that one Sh. Sanjeev Joshi was/is director of one company, i.e., Akanksha Promotions (P) Ltd. DW-2 was then cross-examined and discharged on 19.07.2022 and Defence evidence stood closed.
12. Thereafter, an application u/s 311 Cr.P.C. was moved on behalf of the Accused to examine one bank witness. The said application was decided in favour of the Accused and thus, bank witness, Sh. Mithilesh Kumar (DW-3) was examined, cross-examined and then re-examined on 12.04.2023 and further re-examination was deferred. He was further re- examined, cross-examined and discharged on 08.06.2023. In his examination and re-examination, the said witness produced account ledgers enquiry with respect to cheque leaves status of the Accused and account statement of the Accused for the period 29.02.2008 till 31.03.2010, which were Digitally signed POOJA byYADAV POOJA YADAV 18:09:58 -07'00' Date: 2024.05.21 Page no.6 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar exhibited as Mark-A/DW3 and Ex. DW3/1 respectively. Thereafter, the defence evidence stood closed and the matter proceeded to the stage of final arguments.
FINAL ARGUMENTS:
13. Arguments were made on behalf of both the parties. Written submissions as well were filed on behalf of the Accused which was duly taken on record.
14. These submissions on behalf of the Complainant placed reliance upon one judgment titled as 'Ms. Indu Bahl v. Sh. Ramesh Chander' passed by Ld. MM, West, NI Act, Delhi to argue that the cheque in question despite being a non-CTS cheque was a legal tender on the day of presentation.
15. Submissions made on behalf of the Accused cited several legal precedents for support, specifically referring to the cases of Oolamkunnath O.M.Sindhu v. Alokandy Krishnan & Anr. (2023 SCC Online Ker 5903) of Hon'ble High Court of Kerala at Ernakulam and M. Tamizhselvy v. R. Baskaran (2020 SCC Online Mad 18019) of Hon'ble High Court of Madras.
16. I have carefully considered the submissions made by the Complainant as well as the Accused. Additionally, I have meticulously reviewed the entire case record, including the written submissions provided by the Accused. The legal authorities cited by the Accused as well as the Complainant have also been thoroughly examined.
17. While the judgments cited by the Accused do provide relevant legal context, they are factually distinguishable from the present case. Nonetheless, I have remained cognizant of the legal principles established in these judgments while making my decision in the current matter.
Digitally POOJA signed by POOJA YADAV YADAV 2024.05.21 Date:
Page no.7 of 25 18:10:13 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar LEGAL POSITION:
18. In order to constitute an offence u/s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant1: -
(a) a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) that the cheque has been returned by the drawee bank unpaid, either for the reason that 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;
(d) that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
1 Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. AIR 2000 SC 954, Delivered by Honorable Division Bench of Justice K.T.Thomas & Justice D.P.Mohapatra, Supreme Court of India on 30-03-2011.*modified in consonance with the amendments brought subsequent to the judgement dated 23.02.2000 in the NI Act.
Digitally signed POOJA byYADAV POOJA Page no.8 of 25 YADAV 2024.05.21 Date: 18:10:27 -07'00' CC No. 1325/17
Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar
(e) that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
19. This position has been further fortified in a recent judgement titled as Rajesh Jain v. Ajay Singh, SLP Crl. No. 12802 of 2022, by the Apex court.
20. That the legal requirements mentioned hereinabove are cumulative in nature, i.e. only upon fulfilment of all the aforementioned ingredients, the drawer of the cheque is deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
21. The provision of Sec.138 is further supported by Sec.139 and Sec.118 of the Act. Sec. 139 of the Act provides presumption in favour of the Complainant and mandates that the court shall presume, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, wholly or in part of any debt or other liability. Sec.118 of the Act provides presumptions as to negotiable instruments; that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
22. Elaborating further on this point, the Apex Court in Basalingappa v. Mudibasappa2 summarised the law. The following was laid down in para 25: (SCC p. 433-434) 2 (2019) 5 SCC 418; Delivered by Honorable Division Bench of Justice Ashok Bhushan & Justice K.M.Joseph, Supreme Court of India on 09-04-2019.
POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 18:10:43 -07'00' Page no.9 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar "25. We have noticed the ratio laid down by this Court in the above cases on sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2 The presumption under section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4 That it is not necessary for the Accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden.
25.5 It is not necessary for the Accused to come in the witness box to support his defence.
23. What emerges from the abovesaid discussion is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory; once a given set of facts are shown to exist, the presumptions u/s 139 and Sec.118 of the Act mandate the court to draw them. The same is evident by the POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 Page no.10 of 25 18:11:12 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar language used, i.e., "Shall Presume". However, the said presumptions are in the nature of rebuttable presumptions, i.e. it is open for the defence to shift the onus on the Complainant by raising a probable/ plausible defence.
APPRECIATION OF EVIDENCE AND FINDINGS:
24. I shall now proceed to analyse the legal elements involved in this case, evaluating whether the oral and documentary evidence satisfy the legal requirements. To streamline the discussion, it is important to distinguish between contested and admitted issues, thus narrowing the scope of the controversy.
25. Concerning ingredients no. two and three, these are evidently satisfied by examination of the disputed cheque (Ex. CW1/1) dated 08.02.2017 for Rs. 5,00,000/- and its return memo (Ex.
CW1/2) dated 27.02.2017 indicating "Funds Insufficient." The defense has presented no contrary evidence; hence, these ingredients stand established against the Accused.
26. That it is a trite law that in order to maintain a complaint u/s-
138 NI Act, serving of legal demand notice to the Accused before filing the case is imperative. As regards the service of legal demand notice, the Complainant has dispatched the same, Ex. CW1/3 dt. 22.03.2017 to the Accused. Original registered and postal receipts (Ex. CW1/4 to CW1/5) corroborate this.
27. That Section 27 of the General Clauses Act, 1897, and section 114 of the Indian Evidence Act, 1872, support the presumption of effective service when a document is sent by registered post unless proven otherwise. Even otherwise, the said ingredient stands fulfilled as the Accused has admitted receiving the legal Digitally signed POOJA byYADAV POOJA YADAV 18:13:11 -07'00' Date: 2024.05.21 Page no.11 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar demand notice and replied thereto. Resultantly, the fourth ingredient stands fulfilled as against the Accused.
28. The fifth ingredient also stands satisfied against the Accused as in the instant case, it is an admitted position that the Accused has failed to pay the amount due under the cheque in question, on the ground that he does not owe any liability towards the Complainant.
29. In view of the above, the only point for determination in the present matter remains is that of existence of legally enforceable debt or liability on the day the cheque in question was presented for which the cheque in question was allegedly issued by the Accused, i.e., the first ingredient.
30. At the outset, the liability of the Accused stems from the issuance of the cheque in question, allegedly to the Complainant in discharge of his legal liability i.e., towards the payment of the loan amount of Rs. 5 lakh. It is admitted by the Accused that the cheque in question belongs to his account and has been signed by him, though he denied filling the particulars on the cheque in question. In a recent judgement titled as Rajesh Jain v. Ajay Singh, SLP Crl. No. 12802 of 2022, the Apex court held as following:
"......37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar3]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption."
3 (2019) 4 SCC 197 Digitally signed POOJA byYADAV POOJA Page no.12 of 25 YADAV Date: 2024.05.21 18:13:26 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar
31. Applying the ratio of the above-said judgement and the legal principles previously discussed, coupled with application of sec-141 NI Act leads to an inference under Section 139 read with Section 118 of the Act against the Accused in the present case. This presumption suggests that the cheque was issued for settling a legally enforceable debt or liability owed to the Complainant. With this presumption raised against the Accused, the onus shifts to him to counteract it by presenting a plausible defense. To this end, the Accused has conducted cross-examination of the Complainant, referred to as CW-1. Additionally, the Accused testified as DW-1 in defense. Besides him, two more witnesses, one Sh. Vinod Kumar Sharma (DW-
2) and another, Sh. Mithilesh Kumar, bank witness (DW-3) were examined in defense. The fundamental issue to be addressed is whether the Accused has effectively put forward a credible defense to successfully rebut the presumption arisen against him.
32. It is the case of the Complainant that he had given Rs. 5 lakh to the Accused as friendly loan in the year 2013 for a period of 2 years and later when the said money was demanded back, the Accused sought extension of time for 15 months and agreed to pay interest of 2% per month and accordingly, he started paying interest and finally on 02.02.2017, the Accused issued the cheque in question for repayment of the loan amount of Rs. 5 lakh.
33. For substantiating the complaint, it is crucial that CW-1 (the Complainant) provides consistent testimony regarding the key elements of the transaction with the Accused. During cross- examination, no substantial information emerged that could significantly undermine the reliability of the Complainant. The POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 Page no.13 of 25 18:13:42 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar Complainant reaffirmed his claim that he gave the loan amount to the Accused in cash on 02.12.2013 after withdrawing money from his and his wife's account. He produced his own bank account to show the same, i.e., Ex. CW-1/7. No objection at the time of proving the said document was taken. It was duly proved by the Complainant. Perusal of the said document shows that indeed Rs. 7 lakh were withdrawn by the Complainant from his account on 02.12.2023
34. It is trite law that to question the financial capacity of the Complainant, it is for the Accused to examine independent witness or point to material brought by the Complainant himself to show that the Complainant does not have financial capacity to lend such huge loan amount which the Accused has failed to do. 4 Further, it is well established law that non- mentioning of loan amount in ITR is of no consequence in a case for an offence u/s-138 NI Act, if the offence is otherwise made out and proved; though it might entail penal consequences under applicable Tax Laws.5
35. The Accused has asserted in his defence during the trial that he took Rs.50,000/- in cash as loan from one Mr. Sanjeev Joshi in the year 2007/08 and had repaid the same to Mr. Sanjeev Joshi. He had seen the Complainant on few occasions at the house of said Mr. Sanjeev Joshi and had never taken any money from the Complainant in his life. This stand of the Accused is at variance with the stand taken by him in his reply dated 06.04.2017 (Ex.CW-1/6) to the statutory legal demand notice dated 22.03.2017 (Ex. CW-1/3) issued by the 4 Tedhi Singh v. Narayan Dass Mahant, 2022 SCC Online SC 302. 5 Sheela Sharma v. Mahender Pal [2016 SCC Online Del 4696] Digitally signed POOJA byYADAV POOJA YADAV 18:13:59 -07'00' Date: 2024.05.21 Page no.14 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar Complainant. Only the claim that the cheque in question was given to one Mr. Sanjeev Joshi has remained common and consistent. However, the purpose for which the said cheque was given has varied in reply to notice and during the trial. In his reply to the statutory legal demand notice, the Accused has stated that he was in the business of printing and publicity and the said Mr. Sanjeev Joshi was carrying business of outdoor publicity in the name and style of M/s Joshi Enterprises and M/s Akansha Media, thus they knew each other and were carrying regular business transactions. Accordingly, the cheque in question was given for probable use for any payment for outdoor activity as blank undated cheque in 2008.
36. As DW-1, the Accused deposed that the cheque in question was given to one Sh. Sanjeev Joshi, however, he has not been able to establish any nexus between this claim and the cheque in question. Mr. Sanjeev Joshi has allegedly expired way back in 2009/10. It is claimed by the Accused that Complainant was working with the said Mr. Sanjeev Joshi and must have stolen or managed to obtain the cheque in question from the office of Mr. Sanjeev Joshi. It is pertinent to observe that though the Accused has not even been able to prove his defence that the Complainant was working with said Mr. Sanjeev Joshi on the touchstone of preponderance of probabilities, however, even for the sake of argument, if it is presumed that the Complainant had managed to obtain the cheque then, why would he be presenting the cheque in 2017 when as per the Accused himself Mr. Sanjeev Joshi expired in 2008/09, why the Complainant would wait for so long to present the cheque after allegedly illegally obtaining the same. The Accused in his defence produced his ITR(s) for the year 2013-14 and 2014-15 Digitally signed POOJA byYADAV POOJA Page no.15 of 25 YADAV 2024.05.21 Date:
18:14:15 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar which were exhibited as Ex. DW-1/1 and DW-1/2 to show that he had no liability towards Mr. Sanjeev Joshi. However, the said ITR(s) are of no help to the defence of Accused as the Accused has failed to establish any nexus between the cheque in question and Mr. Sanjeev Joshi. So, whether accused had any liability towards Mr. Sanjeev Joshi or not is immaterial. The argument that the Accused had no dues pending towards Mr. Sanjeev Joshi and thus, the cheque in question was not bothered to be taken back is also without any merit as existence of any liability or no liability towards Mr. Sanjeev Joshi has no consequence or bearing on the present case which is qua a transaction between the Complainant and the Accused. The accused has failed to establish any link or create any chain of circumstances which would indicate towards the version of the Accused to be probable. When once the signature on the cheque is admitted, presumption arises in favour of the Complainant, it is for the Accused to rebut the same and to explain as to how the Complainant came in possession of the impugned cheque.
37. In his cross-examination, the Accused first admitted that he knows the Complainant from quite long, then, changes his statement and deposed that he only knows Mr. Sanjeev Joshi, which is contradictory to his own claim of having seen complainant at the house of Mr. Sanjeev Joshi. Further, he admitted that Complainant visited his house once to serve legal notice and then, deposed that he received the legal demand notice through speed post. In such circumstances wherein contradictory statements are made by the Accused, he cannot be relied upon. Moreover, no police complaint was ever filed by the Accused against the Complainant even after receiving legal notice in the present complaint and filing of this case. This POOJA Digitally signed Page no.16 of 25 by POOJA YADAV YADAV Date: 2024.05.21 18:14:32 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar further weakens his defence as such conduct is contrary to natural conduct of any prudent person. Though it has been asserted by the Accused that he was under presumption that the cheque in question is an illegal tender being a non-CTS cheque, thus, cannot be misused. However, for the discussion made herein below, the cheque in question despite being a non-CTS cheque, was a legal tender on the day of presentation.
38. One witness, DW-2 who was examined in defence of the Accused rather than substantiating the defence of the Accused, has eroded the credibility of the defence of the Accused. He deposed that he knows the Accused from last more than 25 years and the Accused used to regularly visit Mr. Sanjeev Kumar Joshi as they were having friendly business relations. Said, Mr. Sanjeev Kumar Joshi was engaged in the business of print media. He further deposed that to the best of his knowledge, monetary transactions occurred between the Accused and Sh. Sanjeev Kumar Joshi and not with Sanjeev Kumar (the Complainant) as Sanjeev Kumar Joshi and Sanjeev Kumar are two different individuals. He produced one document obtained from registrar of company i.e., form 32 which was exhibited as Ex.DW2/1 to show that Sanjay Kumar Joshi is the Director of company- Akansha Promotion Pvt. Ltd. However, he could not withstand the rigor of cross- examination and was not even able to answer basic questions qua Mr. Sanjeev Joshi and even the Accused. He could not answer when he first met the Accused, as to what type of printing work Accused used to do, his office address, only voluntarily added that he used to visit the workplace. The witness on one hand claims to be friends with the Accused from 25 years and is still unable to answer the basic questions. Moreover, when he is himself stating that he used to visit the POOJA Digitally signed by POOJA YADAV Page no.17 of 25 YADAV Date: 2024.05.21 18:14:48 -07'00' CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar office of the Accused, then, how can he not be aware of the address, this in particular, becomes significant when he is admitting that he is an auto driver. Given the nature of his own work, he is required to remember locations and he is unable to tell address of his alleged 25 years old friend who he used to visit. Nevertheless, he could not even tell when the Accused met said Mr. Sanjeev Joshi last, in his presence. He was unable to answer what kind of business relations existed between the Accused and Mr. Sanjeev Joshi. Office address of Mr. Sanjeev Joshi as well could not be stated. He never met the Complainant before filing of this case. He did not remember whether form 32 (Ex. DW-2/1) was received by him from the concerned department. He merely stated that Mr. Sanjeev Joshi met with his demise in 2010, however, he was unable to state as to when he met him last before his death or when the Accused met him last before his death, in his presence. He denied the suggestion of being interested witness and concocting a false story at behest of the Accused. Further suggestion that no financial transaction exists between the Accused and Mr. Sanjeev Kumar Joshi were denied. However, on holistic consideration of his testimony, he cannot be termed as a credible witness; his testimony has failed to instill confidence in this court and thus, his testimony cannot be relied upon.
39. Bank witness, DW-3, Mr. Mithilesh Kumar, is also of no help to the case of the Accused as he was merely examined for two purposes. One to show that the cheque in question is a non- CTS cheque and thus, invalid. Second, to show that the cheque in question belongs to a cheque book which was issued way back in 2009 containing 20 cheque leaves, out of which 19 were used in 2009 itself and the cheque in question was given Digitally signed POOJA byYADAV POOJA YADAV Date:
Page no.18 of 25 2024.05.21
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Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar to Mr. Sanjeev Joshi as claimed in and around 2009 only which has been later misused by the Complainant. DW-3 produced account ledgers enquiry with respect to cheque leave status of the Accused, allegedly procured from the Finacle system of Punjab National Bank, C.R. Park Branch, the same was marked as Mark-A/DW3. DW-3, also produced bank account statement of the Accused for the period 29.02.2008 till 31.03.2010, which was exhibited as Ex. DW-3/1. The exhibition of the said documents were objected to by the Ld. Counsel for Complainant on the ground of mode of proof. These objections are required to be decided first to decide whether the said documents are admissible in evidence or not. Mark- A/ DW-3 neither bears any seal or stamp of the bank or signature of any authority/ official of the bank, authenticating it's genuineness nor is supported with any certificate u/s-65 B Indian Evidence Act. Similarly, Ex. DW-3/1 is not supported with any certificate u/s-65 B Indian Evidence Act which is a mandatory requirement for any computer generated document to become admissible in evidence.6 Thus, the objection is decided in favour of the Complainant and thus, sustains. Therefore, the said documents, Mark-A/DW-3 and Ex. DW- 3/1 are inadmissible in evidence and cannot be relied upon. Even otherwise, the said documents merely show that the cheque book containing 20 cheque leaves including the cheque in question was issued in February 2009, out of these 20 cheque leaves, seventeen (17) were used and only three (3) including the impugned cheque were unused and nothing more than that. It, in no way shows that the cheque in question 6 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. , Hon'ble Supreme Court, Civil Appeal Nos. 20825-20826 of 2017 POOJA Digitally signed by POOJA YADAV YADAV Date: 2024.05.21 18:15:20 -07'00' Page no.19 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar was given to Mr. Sanjeev Joshi and not to the Complainant. Further, there is no bar in issuing a cheque from old cheque book even if new cheque book has been issued, the only condition is that the cheque issued must be a valid cheque on the day of presentation.
40. In cross-examination, the said witness stated that he has no personal knowledge regarding the bank account of the accused and voluntarily stated that as per the guidelines of RBI, all the non-CTS cheques have been declared to be invalid and thus, any such cheque presented after 2010 in any of the banks would be dishonoured on account of it being a non-CTS cheques. He denied having any personal knowledge of the cheque in question and the related cheque(s).
41. Indeed, from bare perusal of the impugned cheque, it is explicit that the cheque in question is a non-CTS cheque. In this respect, it would be apt to reproduce the relevant instructions issued by Reserve Bank of India as under7:
"On a review of the position and the progress made by banks in this direction, it has been noticed that while banks have begun to issue fresh cheques in the CTS-2010 format, there is still a large volume of non-CTS-2010 format cheques being presented in image-based clearing. Accordingly, it has been decided to put in place the following arrangements for clearing of residual non-CTS-2010 standard cheques:
A. Separate clearing session will be introduced in the three CTS centers (Mumbai, Chennai and New Delhi) for clearing of such residual non-CTS 2010 instruments (including PDC and EMI cheques) with effect from January 1, 2014. This separate clearing session will initially operate thrice a week (Monday, Wednesday and Friday) up to April 30, 2014. Thereafter, the frequency of such separate sessions will be reduced to twice 7 As per the circular dated July 16, 2013, RBI/ 2013-14/141 DPSS.CO.CHD.No./133/04.07.05/2013-14 Digitally signed POOJA byYADAV POOJA Page no.20 of 25 YADAV 18:15:36 -07'00' Date: 2024.05.21 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar a week up to October 31, 2014 (Monday and Friday) and further to weekly once (every Monday) from November 1, 2014 onwards. If the identified day for clearing non-CTS-2010 instruments falls on a holiday under the Negotiable Instruments Act, 1881, presentation session on such occasions will be conducted on the previous working day. Operational instructions in this regard will be issued separately by the CTS centers.
B. Upon the commencement of special session for non-CTS-2010 standard instruments, drawee banks will return the non-CTS-2010 instruments, if any, presented in the regular CTS clearing, under the reason code '37-Present in proper zone'. Such returned instruments will have to be re-presented by the collecting bank in the immediate next special clearing session for non- CTS-2010 instruments in accordance with the instructions contained in RBI circular no. DPSS. CO. CHD.No. 2030/03.06.01/ 2012-2013 dated May 7, 2013.
C. ......"
42. Time and again relevant circulars were issued by Reserve Bank of India in this regard for the banks. Another circular which is pertinent to mention herein is circular dated June 21, 20188 and the relevant excerpt is reproduced herein below for reference:
"4. On a review of the progress made by banks in withdrawing non-compliant cheques and also the continuous declining trend in the volume of such instrument presented in clearing, it has been decided as under:
(i) Frequency of the separate session for clearing of non-compliant cheques in the three CTS Grid centres, will be reduced to once a fortnight from July 1, 2018 (every alternate Wednesday, beginning July 4th) and thereafter to once a month from September 1, 2018 (second Wednesday of the month, beginning September 12th).
8 DPSS(Che)/569/01.02.003/2017-18 Digitally signed POOJA byYADAV POOJA YADAV 18:15:54 -07'00' Date: 2024.05.21 Page no.21 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar
(ii) The separate clearing session will be discontinued from December 31, 2018. Banks can, however, continue to present such instruments in Express Cheque Clearing System (ECCS) centres.
(iii) .............."
43. Sec-56 of Indian Evidence Act provides that no fact of which the Court will take judicial notice need to be proved9 and sec- 57 of the said Act provides the facts of which the Court shall take judicial notice. Sec-57 of the Indian Evidence Act is reproduced herein below for reference:
"57. Facts of which Court must take judicial notice. -- The Court shall take judicial notice of the following facts: -- [(1) All laws in force in the territory of India;] ......"
44. Accordingly, judicial notice of notification(s)/ circular(s) issued by an authority in the exercise of its delegated power of legislation can be taken10 of the instructions issued by the Reserve Bank of India as the said instructions/guidelines were issued by the Reserve Bank of India under sec-18 of the Payment and Settlement Systems Act 2007 (Act 51 of 2007).11
45. From the above circulars, it is clear that even a non-CTS cheque could be presented until December 31, 2018, though as per the terms of the guidelines issued by RBI. It is pertinent to mention that the cheque in question was presented on 27.02.2017, which happened to be a Monday and as per the guidelines, such cheques could be presented on Monday post November 1, 2014. Moreover, the cheque in question has got 9
56. Fact judicially noticeable need not be proved. -- No fact of which the Court will take judicial notice need be proved.
10 State vs Gopal Singh, passed by Hon'ble High Court of Madhya Pradesh,1956 CRI LJ621 11 Circular RBI/2012-13/444 dated March 18,2013 DPSS.CO.CHD.No.1622/04.07.05/2012-13 Digitally signed POOJA byYADAV POOJA YADAV 18:16:11 -07'00' Date: 2024.05.21 Page no.22 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar dishonored for the reason "Funds Insufficient" and not for being a non-CTS-cheque.
46. Mere denial of the case of the Complainant with oral averments, supported by no documents or evidence, leave alone, cogent one is not going to assume any evidentiary value and averments in notice of accusation and in his examination under Sec-313 Cr.P.C read with Sec-281 Cr.P.C would not assume the character of defence evidence12 as mere denial is not sufficient.
47. An overall assessment of the record reveals contradictions and infirmities in the defense of the Accused, casting doubt on its credibility. The evolving narrative of the Accused under cross- examination, introducing new elements without prior indication, undermines the trustworthiness of his defense. Discrepancies in the statements of the Accused regarding the issuance of the cheque further weakens his position. The failure to establish any connection between Sh. Sanjeev Kumar Joshi and the cheque in question, coupled with contradictions in the defense's narrative, fails to substantiate the Accused's claim of no liability.
48. On the contrary, when the entire deposition of the Complainant is read, it inspires the confidence of the Court as nothing significant could be elicited from him which could undermine his credibility. When considering these points as outlined, the evidence presented on behalf of the Complainant gains credibility and instils confidence in the Court regarding the material aspects of the Complaint. The narrative of the Complainant remains consistent, coherent and appealing, in 12 V.S Yadav v. Reena, CRL. A. No. 1136 Of 2010.
Digitally signedPOOJA byYADAV POOJA YADAV 2024.05.21 Date:
18:16:29 -07'00' Page no.23 of 25 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar stark contrast to the inconsistent and contradictory accounts provided by the Accused.
49. In addition to above, on holistic consideration of the record, I find that the case put forth by the Accused is thoroughly filled with contradictions and infirmities. It is apparent on the face of the record that no credibility can be perceived in the defense attempted to be set up by the accused.
50. In conclusion, rather than substantiating the defense put forward by the Accused, the evidence and testimony presented have not even succeeded in undermining the case of the Complainant or casting any reasonable doubt upon it. The Accused's admission of his signature on the cheque is pivotal, and when combined with the presumption raised under Sections 118 and 139 of the Negotiable Instruments Act, all the necessary elements of Section 138 of the same Act have been adequately established by the case of the Complainant.
The defense of the Accused was primarily based on the assertion that no legally enforceable liability existed on the date when the cheque in question was presented, arguing that the cheque in question was given to one Mr. Sanjeev Joshi and not to the Complainant, as he had taken loan from the former and the said obligation had already been fulfilled; the Accused is not aware as to how the cheque in question came in possession of the Complainant. However, the Accused has failed to meet the burden of proof, failing to provide convincing evidence that tilts the balance of probabilities in his favor. Consequently, the presumption raised against the Accused remains unchallenged and stands firm.
51. The culmination of the above analysis leads to the conclusion that all the essential elements required under Section 138 of the Negotiable Instruments Act are satisfactorily met with Digitally signed POOJA byYADAV POOJA Page no.24 of 25 YADAV 18:16:46 -07'00' Date: 2024.05.21 CC No. 1325/17 Sanjeev Kumar Vs. Bivas @ Vibhash Bhattacharya PS: Krishna Nagar respect to the Accused. The case of the Complainant stands on a firm foundation, while the defense of the Accused is riddled with inconsistencies and lacks persuasive evidence, failing to create any reasonable doubt in the version put forth by the Complainant.
52. When analysed comprehensively, the evidence led by the Complainant emerges as more credible and consistent, leading to the conclusion that the all legal requirements are met, and the defense of the Accused lacks substantiation.
DECISION
53. In view of the above-discussion, considering all the facts and circumstances, material/ evidence on record, as all the ingredients of the offence have been cumulatively satisfied against the Accused, the Accused, Bivas @ Vibhash Bhattacharya is hereby convicted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
ORDER: CONVICTED The judgement has been dictated to Ms. Deepa, PA attached with the undersigned.
This judgment contains 25 / twenty-five signed pages. Announced in open court on 21.05.2024 in the presence of the Accused.
Digitally signedPOOJA byYADAV POOJA YADAV 18:17:05 -07'00' Date: 2024.05.21 (Pooja Yadav) MM NI Act/ East /KKD Courts/Delhi 21.05.2024 Page no.25 of 25