Delhi District Court
:: vs :: on 30 March, 2022
IN THE COURT OF MR. SAHIL KHURMI,
METROPOLITAN MAGISTRATE (N.I. ACT)- 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
DLND020319882019
Case No: 171/2020
Sh. Pramod Kumar
S/o Late Sh. Azad Singh,
R/o A-220, Block A, Mahipalpur
Delhi-110037
...... Complainant
::Versus::
Sh. Sunil Kumar
S/o Rajender Singh (Raje Pradhan),
R/o House of Nawal Singh, Village
& P.O Mahipalpur, Near Gatta Factory,
New Delhi-110037
And Also At:
Village & P.O Baliana District,
Rohtak Haryana-124001 ....... Accused
Offence Complained of: 138 NI Act
Plea of the Accused: Not guilty
Date of Institution: 24.12.2019
Arguments Heard On: 24.03.2022
Date of Judgment: 30.03.2022
Decision: CONVICTION
CC No: 171/2020 Page 1 of 15
JUDGMENT
1. Vide this judgment, I shall decide the present matter, CC No. 171/20, filed by complainant Sh. Pramod Kumar against the dishonor of cheque bearing no. 762710 dated 20.09.2019 for a sum of Rs. 5,00,000/- drawn on State Bank of Patiala, Mahipalpur, New Delhi (henceforth, the cheque in question).
2. Shorn to unnecessary details, the brief facts of the case put forth by the complainant are that the complainant had given friendly loan of Rs. 5,00,000/- to the accused. It is further submitted that the accused had approached the complainant for a loan of Rs. 1 lakh in May 2019 and in the month of July 2019 accused again approached the complainant for a loan of Rs. 2,00,000/- and the accused again asked for a loan of Rs. 2,00,000/- in August 2019 from the complainant and did not pay the total amount of Rs. 5,00,000/- to the complainant and in discharge of his liability, the accused issued the cheque in question which was dishonored with the reason "Funds Insufficient" on 23.09.2019, "Payment stopped by drawer"
on 14.10.2019 and again "Payment stopped by drawer" on 20.11.2019
3. Legal demand notice dated 06.12.2019 was sent to the accused. The accused failed to repay the amount within 15 days. Hence the present complaint.
4. The complainant examined himself as CW-1 in pre-
summoning evidence, and relied upon his evidence by way of affidavit along with the following documents: -
CC No: 171/2020 Page 2 of 15S.No. Documents relied upon Exhibited as:
1. Original cheque dated Ex. PW-1/1 20.09.2019
2. Copy of cheque return memo Ex. PW-1/2 dated 23.09.2019
3. Cheque return memo dated Ex. PW-1/3 14.10.2019
4. Cheque return memo dated Ex. PW-1/4 20.11.2019
5. Copy of legal notice dated Ex. PW-1/5 06.12.2019
5. On appearance of accused, notice of accusation u/s 251 Cr.PC was served upon the accused on 05.04.2021, to which the accused pleaded not guilty and claimed trial. He stated that the cheque in question was misused by the complainant from his office situated at Mahipalpur and he has not taken any friendly loan from the complainant and he has no liability towards the cheque in question.
6. Thereafter an oral Application u/s 145 (2) NI Act was moved on behalf of the accused, which was allowed on 05.04.2021. Thereafter BW and NBWs were issued againt the accused to secure his presence. Thereafter, the complainant was examined and duly cross-examined on 30.11.2021. Thereafter, CE stood closed vide separate statement of complainant.
7. Statement of accused u/s 313 Cr.PC was recorded on 30.11.2021. Thereafter, matter was fixed for DE.
CC No: 171/2020 Page 3 of 158. Thereafter, DW-1 accused examined, cross-examined and discharged on 07.12.2021. Thereafter vide separate statement of accused DE stood closed and the matter was fixed for final arguments.
9. Final arguments were heard on 24.03.2022.
10. I have heard the counsels for both parties at length, considered the evidence led by them carefully and have perused the court records thoroughly.
INGREDIENTS OF OFFENCE AND DISCUSSION
11. Before going into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence, as highlighted below:
1st Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
2nd Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
3rd Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
4th Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank; and CC No: 171/2020 Page 4 of 15 5th Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
12. In order to prove the aforesaid ingredients, the complainant has proved the following:
(a) The complainant has proved the original cheque, Ex.
PW1/1 which the accused has not disputed as being drawn on the account of the accused. It is not disputed that the cheque in question was presented within its validity period.
(b) The cheque in question was returned unpaid vide return memo Ex. PW1/2 due to the reason, "Funds Insufficient"
and then "Payment stopped by drawer" on 14.10.2019 vide Ex. PW-1/3 and again "Payment stopped by drawer" on 20.11.2019 vide Ex. PW-1/4. The same is also not disputed by accused.
(c) The complainant has proved on record legal notice Ex. PW-1/5 dated 06.12.2019.
(d) The fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed.
As such, on the basis of the above, the first, third, fourth and fifth ingredient of the offence under Section 138 NI Act stands proved against the accused.
13. As far as the proof of second ingredient is concerned, the complainant is required to prove that the cheque in question was issued by the accused and it was drawn by the drawer for discharging a legally enforceable debt. The accused admitted his signatures on the cheque in question in notice framed under section 251 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in CC No: 171/2020 Page 5 of 15 question was drawn for a consideration and that the complainant received the cheques in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question.
(Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418)
14. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant. Now let us examine the defences. raised by the accused and evaluate the same.
15. The accused has primarily taken three defenses namely, Firstly, that although he had signed the cheque but he had not filled the contents of the cheque. Secondly, that complainant has not shown his source of funds/financial capacity to give loan. Thirdly, that there is no legally enforceable liability of the accused as cheque was stolen by complainant. Now, all the defenses shall be discussed one by one.
Contents/Particulars of cheque not filled by accused:
16. It is contended by the accused that the particulars on the cheque in question were not filled by him. It is settled law that filling of particulars of cheque by any person other than the drawer does not invalidate the cheque and shall still attract the presumption under Section 139 of the NI Act. The same was held by the Hon'ble Supreme Court of India in the decision cited as CC No: 171/2020 Page 6 of 15 Bir Singh vs Mukesh Kumar (2019) 4 SCC 197. The apex court observed as follows:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
17. Thus, the signatures of the accused on the cheque in question being admitted, the plea that the particulars of cheque were not filled by the accused is not defensible. Defence that complainant has not shown source of funds/financial capacity to give loan:
18. The accused has put questions to complainant in his cross examination regarding the source of funds of giving the loan in question and has tried to dent his case by showing that he didn't have financial capacity to lend the loan in question. It is the de- fence of accused that the complainant has failed to show the CC No: 171/2020 Page 7 of 15 source of funds of the alleged sum of money given to the ac- cused.
19. The Hon'ble Supreme Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418, has held that once the finan- cial capacity of the complainant is questioned, it is incumbent on the complainant to have explained his financial capacity. Per con- tra, Ld. counsel for complainant submitted that the complaint has sufficiently proved the source of his funds and his financial ca- pacity.
20. Perusal of the cross examination of complainant shows that the complainant had stated that his earning is through rent from his rented houses which is Rs. 90,000/- per month. He further submitted that he files his ITR and same income is shown in his ITR for the relevant year. The complainant further submitted that he can produce his ITR.
21. Thus, in the considered view of this court, since the com- plainant was earning Rs. 90,000/- monthly rental income during relevant time when loan in question was given, which is not dis- puted by the accused and he has also shown the same in his ITR and further, he stated that he can produce his ITR, however the accused didn't ask him to produce his ITR. Thus, the com- plainant has been able to show the source of sum of money and the complainant has proved his financial capacity to give the loan of Rs. 5,00,000/-. Thus, this defence of accused fails.
Defence of no legally enforceable liability of accused
22. It is the consistent defence of the accused that he never took any friendly loan of Rs. 5 Lakh from the complainant and CC No: 171/2020 Page 8 of 15 his cheque was stolen by complainant from his office. It is stated by accused in his examination in chief that he use to keep his blank signed cheques at his office. He further stated that he had gone to his village when his father got ill and when he came back, he didn't care about his signed cheque left in drawer of his office. He further stated in his cross examination that he has kept 3-4 blank signed cheques in his office as construction of his house was going on.
23. In the considered view of this court, no reasonable prudent person would keep signed blank cheques in the drawer of his of- fice table, without locking it, since there are chances of it being misused.
24. Further, the accused stated that he didn't make any police complaint regarding theft of his cheque and he stated that no stop payment instructions were given by him to his bank. He further stated that he got to know about his cheque being stolen in 2017 and he has not lodged any FIR till date regarding the same till date. It is inconceivable, that a person whose cheque is stolen since 2017, would not make any complaint to police. Further, it is also relevant to mention that in his cross examination dated 07.12.2021 it was stated by accused that when he got a call from his bank regarding dishonor of cheque, the name of person who presented it was not told to him and he didn't even inquire from the bank about the same. In the considered view of this court, when the complainant got a call from his bank for clearance of cheque in question, which was allegedly stolen, he ought to have made an inquiry as to who the alleged thief/ presenter of cheque is. Such callous attitude of the accused, dents his own case and CC No: 171/2020 Page 9 of 15 casts a doubt on the version put forth by him regarding cheque being stolen.
25. In order to fully appreciate this defence of the accused, ref- erence must now be made to Section 103 of Indian Evidence Act, which is quoted below for ready reference:
103. Burden of proof as to particular fact- The burden of proof as to any par-
ticular fact lies on that person who wishes the Court to believe in its exis-
tence, unless it is provided by any law that the proof of that fact shall lie on any particular person
26. In the present scenario, the burden to prove the above said fact, that his cheque was stolen by complainant was on the ac- cused. However, the accused has not brought forward any facts or circumstances which would enable this Court to rely upon the contention of the accused.
27. In the considered view of this court, any reasonable pru- dent person, whose valuable security i.e cheque is stolen/mis- placed ought to make a police complaint or take legal recourse, whereas the same has not been done by the accused in the present case. It is relevant to mention that during cross examination of complainant he stated that, "It is correct that I never visited the house of accused nor his office". Thus, if the complainant never visited the house/office of accused, it is highly improbable that he stole the cheque from the office of accused.
28. Further, the relevant cross examination of accused is repro- duced here for ready reference:
I have not made any police complaint or any stop payment instructions to CC No: 171/2020 Page 10 of 15 my bank. (Vol. since the complainant is my family member therefore, I didn't take any steps.) Thus, there is discrepancy in the testimony of accused, as he stated that he didn't issue any stop payment instructions to his bank, whereas the cheque in question was dishonored twice for the reason "payment stopped by drawer" vide cheque return memo Ex. PW-1/3 and Ex. PW-1/4.
29. It is further apposite to mention that the accused has stated in his cross examination that he didn't receive the legal demand notice whereas in his notice framed u/s 251 CrPC and statement recorded u/s 313 CrPC he has stated that he had received the le- gal demand notice and he had replied to the same. Thus, it is crystal clear that the accused has not brought coherent set of facts before the court, making his version doubtful and not worthy of credence. Moreover, the accused has not furnished any proof in order to justify his defence. It has also been held in V.S. Yadav Vs Reena 2010 SCC Online Del 3294, that mere suggestions on behalf of the accused do not prove any fact and the accused will have to independently prove the facts alleged in his suggestions. The accused has not produced any evidence to further his de- fence. Therefore, this defence of accused that his cheque was stolen does not hold water.
30. It is contended by the accused during final arguments that there are some discrepancies in the case of complainant i.e. in the complaint it is mentioned that Rs. 1,00,000/- was given to accused in May 2019, Rs. 2,00,000/- in July 2019 and Rs. 2,00,000/- in August 2019, whereas in his examination in chief, the complainant stated that the accused demanded Rs. 2 lakhs in CC No: 171/2020 Page 11 of 15 first meeting, the Rs. 2 Lakh after two months and he doesn't remember when the accused demanded Rs. 1 lakh. Counsel for accused submitted that the complainant doesn't remember the date, month and year of giving the loan. It is also contended by accused that there is no loan agreement, receipt, witness of the alleged loan transaction. In the considered view of this court, the mere fact that there is minor discrepancy in testimony of complainant regarding the order of giving three amounts of loan, will not overthrow the case of complainant in entirety.
31. It is apposite to refer to the decision of the Hon'ble High Court of Delhi cited as Sanjay Arora v. Monika Singh; 2017 SCC Online Del 8897 wherein it was held in paragraph 24 of the said decision that "Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
32. It is already established above that the accused has failed to prove the defence taken by him that the cheque in question was stolen by complainant and it was not issued for discharge of any legally enforceable debt. Consequently, it is held that the reasons cited by the accused to contest the existence of loan/ CC No: 171/2020 Page 12 of 15 liability involving non-disclosure of loan in complainant's ITR, no written agreement/promissory note of loan in question, non- examination of any witness to loan transaction, are all inconsequential and do not come to the rescue of the accused in light of the mandatory presumptions.
33. It is pertinent to note that no proof has been furnished by the accused to establish his defence. It is settled law that the pre- sumption under section 139 of NI Act cannot be rebutted upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence. The same was held by the Hon'ble Supreme Court of India in the decision of cited as K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458. Thus, on the mere averment of the accused unsubstantiated by any cogent evi- dence, it is not proved that the cheque in question was stolen and not issued for any legally enforceable debt/liability.
34. On a consideration of the totality of factors pleaded by the accused persons in defence, it becomes clear that the accused persons has merely paid lip service to their defence and did not led any cogent evidence to establish it or draw any circumstance against the case of the Complainant which probabilizes their defence. Mere bald denial of the absence of consideration or pleading that the cheques in question were stolen, in absence of proof, would not operate to absolve the accused of his liability.
35. Therefore, in light of the above reasoning, it is the consid- ered opinion of this court that the accused persons have miser- ably failed to rebut the presumption u/s 118 and 139 of NI Act which has arisen in favour of the complainant and has failed to show that their defence is probable. Therefore, accused Sunil Ku-
CC No: 171/2020 Page 13 of 15mar is convicted for commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881.
36. Arguments heard on the point of sentence.
37. The cheque in question pertains to 20.09.2019 and the complainant has been deprived of his dues from last 2.5 years. The total amount of the cheque is Rs. 5,00,000/-.
38. As such, considering the totality of facts and circum- stances and considering the fact that BWs were issued on 26.08.2021 and thereafter, NBWs were issued on 29.10.2021 and again NBWs were issued on 29.03.2022 to secure the presence of the accused, the convict Accused Sunil Kumar deserves no le- niency and accordingly, he is sentenced to imprisonment of Six months and a fine of Rs. 8,00,000/- (Rupees Eight Lakhs only), keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss and a reasonable amount of the litigation costs suffered for prosecuting the matter for six years.
39. This court is of the view that the complainant is enti- tled to receive the entire amount as compensation. In default of payment of this compensation, the convict shall undergo a further sentence of 6 months simple imprisonment. Further, it is clarified that the aforesaid fine amount shall be recoverable as fine under section 421 of Cr.P.C. irrespective of the default sim- ple imprisonment.
40 At this stage, an application u/s 389(3) Cr.PC has been moved by the convict seeking suspension of sentence in or- der to file an appeal before appellate court and for releasing the CC No: 171/2020 Page 14 of 15 convict on bail. Heard. Considering the fact that the offence is bailable in nature and the convict has remained on bail during the entire trial, the convict is admitted to bail on furnishing of fresh bail bonds in the sum of Rs. 1,00,000/- along with one surety in the like amount. Same are furnished, accepted and taken on record. RC retained. Robkar be issued. These bail bonds shall be valid for a period of 30 days from today. In case the convict fails to prefer an appeal or to obtain an order suspending the sentence from the Appellate Court within the period of 30 days from to- day, he shall surrender before the Court. Complete set of judg- ment be given dasti to the convict free of cost.
Re-notify on 30.04.2022.
(Sahil Khurmi) Metropolitan Magistrate (NI Act)-02 Room No. 403, 4th Floor, Rouse Avenue Court Complex New Delhi District/ND/30.03.2022 Note: This judgment contains 15 pages and each page has been signed by me.
(Sahil Khurmi) Metropolitan Magistrate (NI Act)-02 Room No. 403, 4th Floor, Rouse Avenue Court Complex New Delhi District/ND/30.03.2022 CC No: 171/2020 Page 15 of 15