Delhi District Court
Shiv Narayan vs . B.N. Nagar 1/14 on 21 April, 2014
IN THE COURT OF MS MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
ROHINI: DELHI
Unique ID No. 02404R0490482006
CC No. 1300/1/06
Shiv Narayan S/o Sh. Om Prakash
R/o F13,14, Madipur, Colony
New Delhi. ............Complainant
V/s
B.N. Nagar S/o Sh. Hari Ram
R/o WZ78, Khayla Village,
New Delhi. ................Accused
JUDGMENT
(1) Name of complainant Shiv Narayan S/o Sh. Om Prakash
and parentage address R/o F13,14, Madipur, Colony
New Delhi.
(2) Name of accused B.N. Nagar S/o Sh. Hari Ram
and Parentage address R/o WZ78, Khayla Village,
New Delhi.
(3) Offence of complained of or proved: 138 N. I Act
(4)Plea of accused: Pleaded not guilty
(5) Date of institution of case: 14.08.2006
(6)Date of reserve of order: 28.03.2014
(7)Date of Final Order: 21.04.2014
(8) Final Order: Acquittal
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Shiv Narayan Vs. B.N. Nagar 1/14
2. Brief facts relevant for the decision of the case are as under: That accused has approached the complainant and requested for friendly loan of Rs. 1,70,000/ on credit base. As the complainant and accused are well known to each other, complainant had paid the sum of Rs. 1,70,000/ to the accused with the promise that the same shall be returned within 6 month. On non payment of loan amount to the complainant by accused, complainant approached and requested the accused to make the payment. Then accused issued a cheque bearing no. 463643 dated 15.06.2006 of Rs. 1,70,000/ drawn on Punjab and Singh Bank, Rajouri Garden, New Delhi, to the complainant. When the complainant presented the said cheque, the same was dishonored with remarks "Account closed" vide cheque returning memo dated 24.06.2006. After dishonoring the cheque, the complainant sent a legal notice dated 28.06.2006 to the accused but accused has failed to make the payment of dishonoured cheque despite service of legal notice. Thereafter complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished accordingly to law.
3. In his pre summoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record the original cheque bearing no. 463643 dated 15.06.2006 of Rs.1,70,000/ drawn on Punjab and Singh Bank, Rajouri Garden, New Delhi, as Ex.CW1/1, Cheque returning memo dated 20.06.2006 as Ex.CW1/2, copy of Legal demand notice dated 28.06.2006 as Ex. CW1/3, photocopy of Regd. AD receipt as Ex.CW1/4, receipt of UPC as Ex.CW1/5 and receipt of courier as Ex.CW1/6.
4. Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was framed upon him to which he pleaded not guilty and claimed trial. He further stated that:
"The brother of the complainant namely Manoj Kumar had started a chit fund / committee and various person of the area became the member of the said chit fund. I also became the member of the said chit fund / committee started by the brother of Shiv Narayan Vs. B.N. Nagar 2/14 the complainant namely Manoj Kumar. The said chit fund / committee had terminated in February, 2004 and I had taken the said chit fund / committee about 2 3 months prior to the termination of the said fund / committee. The said Manoj Kumar asked me to give blank signed cheques as a security in case if I failed to pay the installments of the remaining installment of the said chit fund / committee in that event Manoj Kumar would use those cheques. I had given those blank signed cheques to Sh. Manoj Kumar in good faith and after the termination of the said chit fund / committee in February, 2004 I asked the said Manoj Kumar to return the said cheques, Manoj Kumar told me that the said cheques were not traceable and as and when the cheques would be traced, he would return the same to me. I closed my account. Thereafter, the said Manoj Kumar and complainant have misused those cheques and said Manoj Kumar filled up the cheque bearing no. 463642 dated 10.06.06 to the tune of Rs. 2,50,000/ which was presented for encashment and the same was dishonored by the same bank with the remarks account closed and Manoj Kumar on the basis of said cheque has falsely filed a complaint case against this cheque. The said complaint cases pending in the court of Ms. Smita Garg, Ld. MM, Rohini Courts, Delhi and the said case is pending for 05.05.2011. and the present complainant by misusing and abusing the blank signed security cheques of the accused has filed the present false fabricated case in connivance with his brother Manoj Kumar. The complainant along with his brother Manoj Kumar have committed the fraud upon me by misusing the blank signed security cheques and to this effect I have made the complaint to DCP, Economic Offences Cell, Qutub Hotel, Delhi, DCP Crime Branch, Police Head Quarter and Ministry of Home Affairs".
5. In his post notice evidence, complainant adopted his pre summoning evidence and during cross examination he deposed that he cannot tell the exact date when accused approached him for the purpose of taking loan. He voluntarily said that it was in the month of January, 2006. He further submitted that he advanced loan to the accused at his shop and he does not remember the exact date when he advanced loan to the accused. He further submitted that he advanced loan to the accused out of his own savings and funds of his family members. He further Shiv Narayan Vs. B.N. Nagar 3/14 submitted that he cannot tell how much money he took from his family members for the purpose of advancing loan to the accused. He further submitted that accused handed over cheque in question to him after he advanced him above said loan. He further submitted that he does not remember the date and place when the cheque in question was handed over by the accused to him. He acceptted the suggestion that Sh. Manoj Kumar is his real brother.
6. Thereafter statement of accused under section 281 r/w 313 Cr.P.C. was recorded in which all the incriminating evidence were put to the accused to which he stated that:
"The cheque in question was not issued to the complainant. I had given two cheques to Sh. Manoj Kumar, brother of complainant in December, 2003. Mr. Manoj Kumar was running a committee / chit fund which was to be completed in February, 2004. I took that committee / chit fund in December, 2003 and at that time, Sh. Manoj Kumar has taken two blank signed cheques bearing no. 463642 and 463643 from me in the month of December, 2003. I have paid the amount of the remaining two committee / chit fund to Sh. Manoj Kumar. Thereafter, I requested Manoj Kumar to return my above said two cheques but he did not return the same on the pretext that the same have been misplaced and as soon as the same are find out, he shall return the same to me but he failed to return the same. Thereafter, in the month of July 2005, I close my account with my banker. Complainant and his brother has misused both the said cheques including cheque in question. I have closed my bank account in July, 2005 because I had full apprehension that Sh. Manoj Kumar shall misuse the above said cheques. I have received the legal notice and also gave its reply. It is a false case and without liability against me. After receiving the notice, I made a complaint to the SHO, PS Tilak Nagar, DCP(West District), DCP (Crime Branch) and LG of the Delhi etc. regarding the cheating upon me committed by Manoj Kumar and the complainant".
7. Accused has examined four defence witnesses including himself in his defence as DW1, DW2, DW3 & DW4.
Shiv Narayan Vs. B.N. Nagar 4/14
8. DW1 Bir Narain Nagar has deposed that Manoj Kumar was running the chit fund/ committee in the year 2002 and he was also member along with other persons. He further submitted that the said committee was to be completed in the year 2004 and he took the said committee in the month of December, 2003 and at there time, there were two chits remaining and Manoj Kumar took two cheques bearing number 463642 and 463643 as a security amount for the month of January and February 2004. He further submitted that he had given the remaining amount and he had nothing to pay to Manoj Kumar after February 2004 and thereafter in the first week of March 2004, he requested Manoj Kumar to return the said cheques to which Manoj Kumar replied that the said cheques had been misplaced and whenever the same will be traced by him, Manoj Kumar shall hand over the said cheques to him. He further submitted that he believed him and requested Manoj Kumar so many times to return the above said cheques and everytime, Manoj Kumar promised him that he shall not misuse above said cheques and he shall hand over the same to him whenever the same were traced. He further submitted that thereafter, after taking into consideration the behaviour of Manoj Kumar he closed his account from Punjab and Sindh Bank, Rajouri Garden on May 2005 and he had deposited his cheque book with the bank. He further submitted that thereafter Manoj Kumar misused both above said cheques, one was used by Manoj Kumar for a sum of Rs. 2.5 Lacs and another cheque was used by the present complainant for a sum of Rs. 1.7 Lacs and the present complainant is a real brother of Manoj Kumar. He further submitted that he received a legal notice sent by Manoj Kumar to which he replied the same on 24.06.2006 which is Ex.DW1/5 through his counsel and on 24.06.2006, he sent the complaint through UPC receipt Ex. DW1/2, Ex.DW1/3 & Ex.DW1/4 and registered AD to DCP crime branch , Delhi and DCP Economic offences at Kutab Hotel, Mehrauli, Delhi Ex.DW1/1 and to Hon'ble Lt. Governer, Raj Niwas Delhi and the hon'ble Home Minister, Govt. of India. He further submitted that Manoj Kumar has misused one of the cheque of Rs. 2.5 lacs and filled the date 10.06.2006 and present complainant misused the cheque bearing no. 463643 and filled the date as 15.06.2006. The case which was filed U/S 138 NI Act against him by Shiv Narayan Vs. B.N. Nagar 5/14 Manoj Kumar was dismissed by the hon'ble court of Sh. Sanjay Jindal A. SCJ. Rohini Courts on 27.03.12. He further submitted that he has not taken any loan from the present complainant at any point of time and he has also not taken any loan from his real brother Manoj Kumar. He further submitted that he is a rich man and has a lot of agricultural land and he also receive rent from his tenants and being a man of means, there was no occasion for him to take a loan from the present complainant. He further submitted that the complainant has filed the present complaint by misusing and abusing the process of law on the false grounds.
He has deposed in his cross examination that the cheque in question was issued by him to the brother of complainant Sh. Manoj and it was drawn on Punjab & Sindh Bank. He further submitted that Manoj Kumar, brother of complainant used to run a chit fund committee but he has no documentary proof regarding the same. He further submitted that the cheque in question bears his signature. He accepted the suggestion that cheque was returned dishonoured due to account closed. He voluntarily said that he closed his account in May 2005.
9. DW2 Sh. Manoj S/o Sh. Lakhpat has deposed that he had a committee / chit fund along with Bir Narain in the chit fund of Manoj Kumar and if any member took the chit fund / committee before the maturity date of chit fund, then Manoj Kumar used to take security cheques from that member. He further submitted that Bir Narain had also took his chit fund / committee in the month of December 2003 and he had given two security cheques to Manoj Kumar in his presence.
He has deposed in his cross examination that it is wrong to suggest that two cheques were given to Manoj Kumar by Sh. B.N. Nagar in his presence at the time when he has taken the chit fund amount and he do not have any documentary proof regarding the chit fund, as no chit fund was in existence. He further submitted that he also had a chit fund with Manoj Kumar and as a general practice, whenever they used to get committee amount, Manoj Kumar used to get their blank singed cheque as security and was to return the same after the whole committee has completed.
Shiv Narayan Vs. B.N. Nagar 6/14
10. DW3 Kanwar Singh S/o Sh. Khillu Singh has deposed that he had a committee / chit fund in the chit fund of Manoj Kumar and Bir Narain was also the member of the same and if any member take the chit fund / committee before the maturity date of chit fund, then Manoj Kumar used to take security cheques from that member. He further submitted that Bir Narain had also took his chit fund / committee in the month of December 2003 and he had given two security cheques to Manoj Kumar in his presence.
He has deposed in his cross examination that he know B.N.Nagar through Manoj as both of them had chit funds with Manoj. He further submitted that B.N. Nagar told him about this complaint before 45 years ago i.e, approximately in the year 2007 and he told him that the cheque which was given to Manoj Kumar in his presence has been presented by him (Manoj) in the bank which has been dishonored. He voluntary said that two cheques were given in his presence by B.N. Nagar to Manoj Kumar and the cheques were not signed in his presence, so he cannot say that who had signed the cheques. He further submitted that he do not know the complainant in the present matter.
11. DW4 Ct. Jitender Kumar has deposed that their office had received a complaint which was sent by Sh. Bir Narain Nagar and the said complaint was sent to DCP West District for necessary action through dispatch no. 2583.
12. After closing defence evidence, oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
13. It is submitted by Ld. counsel for complainant that:
1. Accused issued the cheque in question in 06.06.2006 for repayment of the loan taken from the complainant for a total sum of Rs. 1,70,000/.
2. It was further submitted that the cheque was dishonored due to the account being closed. The accused admitted the receipt of the legal notice. It is the contention of the Ld. counsel of the complainant that the accused knew that the account was closed, despite the same he issued the cheque in question, thereby Shiv Narayan Vs. B.N. Nagar 7/14 committing the offence under Sec 138, NI Act.
3. DW 2 and 3 have submitted in their cross examination that no documentary proof of evidence is available for the chit fund and cheques in question were not given in their presence.
14. Per contra Ld. counsel for accused has submitted that:
1. The present complaint is filed on the basis of cheque bearing nimber 463643 dated 15.06.2006drawn on Punjab and Sindh Bank for sum of Rs.1,70,000/.
2. The complainant even does not know the name of the father of the accused which is cleared from the compalint itself.
3. During cross examination the complainant said that he know accused since the year 200203, however he ahs said that he cannot tell the number of the said shops of the accused which were near his house and he cannot tell the exact date when the accused approached him fot the loan and he does not remember the exact date when he advanced the loan to the accused.
4. the complainant has further submitted in his cross that he does not remember the exact date and place when the cheque in question was handed over by the accused to him.
5. The complainant has accepted that Sh Manoj is his real brother.
6. The Defense Witness 1 has submitted that Manoj Kumar was running the chit fund/ committee in the year 2002 and he was also member along with other persons. He further submitted that the said committess was to be completed in the year 2004 and he took the said committee in the month of December, 2003 and at there time, there were two chits remaining and Manoj Kumar took two cheques bearing number 463642 and 463643 as a security amount for the month of January and February 2004. He further submitted that he had given the remaining amount and he had nothing to pay to manoj Kumar after February 2004 and thereafter in the first week of March 2004, he requested Manoj Kumar ro return the said cheques to which Manoj Kumar replied that the said cheques had been misplaced and whenever the same will be traced by him, Manoj Kumar shall hand over the said cheques to him.
7. He further submitted that he received a legal notice sent by Manoj Kumar to Shiv Narayan Vs. B.N. Nagar 8/14 which he replied the same on 24.06.2006 which is Ex.DW1/5 through his counsel and on 24.06.2006, he sent the complaint through UPC receipt Ex. DW1/2, Ex.DW1/3 & Ex.DW1/4 and registered AD to DCP crime branch , Delhi and DCP Economic offences at Kutab Hotel, Mehrauli, Delhi Ex.DW1/1 and to Hon'ble Lt. Governer, Raj tNiwas Delhi and the hon'ble Home Minister, Govt. of India.
8. DW 2 and 3 have submitted that they had a committee / chit fund along with Bir Narain in the chit fund of Manoj Kumar and if any member took the chit fund / committee before the maturity date of chit fund, then Manoj Kumar used to take security cheques from that member and Bir Narain had also took his chit fund / committee in the month of December 2003 and he had given two security cheques to Manoj Kumar in their presence.
9. DW 4 has submitted that their office had received a complaint which was sent by Sh. Bir Narain Nagar and the said complaint was sent to DCP West District for necessary action through dispatch no. 2583.
15. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first: As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the Hon,ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325.
Section 138 of the Act three ingredients, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
16. Above said three ingredients have been proved by complainant in the present Shiv Narayan Vs. B.N. Nagar 9/14 case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
17. For the offence under sec. 138 N.I.Act, the presumptions under section 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under section 118 and 138 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
18. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
19. Hon'ble Supreme Court in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172 held that standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Court also held that prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of accused is 'prepondrance of probabilities'. Inference of preponderance of possibilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
Shiv Narayan Vs. B.N. Nagar 10/14
20. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case it is stated on behalf of the accused that the cheques in question were given as blank security cheques.
21. The law regarding the blank signed cheque is very clear. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: Section 20 of N.I. Act declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability.
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475.
22. Accused has also admitted in his notice U/S 251 Cr.P.C. that the cheque in question bears his signatures. Reference has been made to Judgment of Apex Court in Rangappa v. Sri Mohan, AIR 2010 SC 1898 that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
23. It means that in the present case the onus is upon the accused to rebutt the presumption raised under section 118(a) and 139 of the said Act and merely saying that the cheque in question was given by him to the complainant as a blank security cheque is not sufficient to rebutt the presumption.
24. In the present case to dislodged the presumption in favour of complainant a plausible explanation furnished by the accused wherein he states that he was a member of a chit fund/committee where he was contributing an amount and the petitioner used to take two duly signed cheques from each of the member. These Shiv Narayan Vs. B.N. Nagar 11/14 facts get verified from the testimony of two other independent witnesses DW2, Manoj and DW3, Kanwar Singh who have stated themselves to be members of the same chit fund/committee alongwith the accused and have stated that the cheques were handed over by the accused to Manoj Kumar in their presence. So this establishes that Manoj Kumar, the brother of the complainant was running some kind of chit fund/committee and was taking security blank cheques duly signed by the member as per general practice. In support of his version, the accused has also placed on record the complaints filed by him with the office of the DCP (Economic Offences Cell), DCP (Crime Branch) etc. pertaining to the misuse of the cheque in question by the brother of the complainant, Manoj Kumar. However, the Ld. Counsel for the complainant has contended that the fact of the chit fund committee has not been proved as no documentary proof has been brought on record by the accused.
25. Ld. Counsel for the accused has relied on the following judgments
(a) M/s Pine Product Industries & Anr. Vs. M/s R.P Gupta & Sons & Anr. [AIR 2007 (NOC) 1987 Del]
(b) Dilwarsinh Modunha Zala Vs. State of Gujarat & Ors. [Criminal Appeal No. 2086/2010]
(c) M.S. Narayana Menon Vs. State of Kerala & Anr. [2006(3) Crimes 117 (SC)]
(d) I. Parveen Kumar & Anr. Vs. Sri Balaji Onion Co. & Ors. [Criminl Petition Nos. 4821 and 4822 of 2003]
(e) A.S Bafakkithangal Vs. Purushothaman & Anr. [Criminal Appeal No. 194/2002] Judgments have been perused and taken on record.
26. The Ld. Counsel for the complainant has relied and placed on record the judgment passed by the Hon'ble High Court of Delhi in the case of V.S. Yadav Vs. Reena [Crl. A. No. 1136 of 2010] wherein the Hon'ble Court set aside the judgment of the Trial Court in which the complainant has not specified the date of giving of the loan and passed an order of conviction against the accused. It is pertinent to note here, that the aforesaid judgment pertains to a case where no defence evidence was Shiv Narayan Vs. B.N. Nagar 12/14 led by the accused and the Trial Court has relied on the statement of the accused under section 313, Cr.P.C. while passing the order of acquittal. Hence, the judgment would not be relevant in the present case, where the defendant has not only examined himself as defence witness but has also examined other independent witnesses; and their testimony has been tested on the touchstone of cross examination. In addition to it the accused in the present case given reply to the legal notice wherein he has narrated the same version as has been stated by him in his testimony and has also lodged the complaints regarding the misusing of the cheques in question with the office of the DCP (Economic Offences Cell), DCP (Crime Branch) etc.
27. It is the version of the accused that he was a member of a chit fund/committee where he was contributing an amount and the petitioner used to take two duly signed cheques from each of the member. He has examined two witnesses DW2, Manoj and DW3, Kanwar Singh to corroborate his testimony, who have stated themselves to be members of the same chit fund/committee alongwith the accused and have stated that the cheques were handed over by the accused to Manoj Kumar in their presence. Further, the accused has also placed on record the complaints filed by him with the office of the DCP (Economic Offences Cell), DCP (Crime Branch) etc. pertaining to the misuse of the cheque in question by the brother of the complainant, Manoj Kumar. This seems to be fairly possible and creates a doubt in the case of the petitioner. In addition to this complainant could not tell the exact date when accused approached him for the purpose of taking loan and the exact date when he advanced loan to the accused. He further submitted that he advanced loan to the accused out of his own savings and funds of his family members however he could not tell how much money he took from funds of his family members for the purpose of advancing loan to the accused. Complainant has also submitted during cross examination that accused handed over cheque in question to him after he advanced him above said loan however this is contrary to contents of complaint wherein it is written that the cheque in question was issued for the purpose of repayment of loan.
Shiv Narayan Vs. B.N. Nagar 13/14
28. Hence in the light of above discussion it comes out that the complainant has failed to prove his case beyond all the reasonable doubts and accused has successfully rebut the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'prepondrance of probabilities' and inference of preponderance of possibilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies as same was held by the Hon'ble Supreme Court in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172. Accordingly accused is acquitted for the offence under section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety if any be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
st
TODAY i.e, 21 day of April, 2014 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Shiv Narayan Vs. B.N. Nagar 14/14
Shiv Narayan Vs. B.N. Nagar 15/14