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Delhi District Court

Mohini Bhandari & Another vs Vinod Chopra on 16 November, 2010

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   IN THE COURT OF SH  ASHUTSOH KUMAR: Sr. CIVIL 
JUDGE­cum­RENT CONTROLLER: NORTH WEST: ROHINI
                                                COURTS:DELHI.



CC no. 1246/09


Mohini Bhandari & Another vs Vinod Chopra


Judgment:


a) Sl no of the case                       :02404R0037881995
b) Name of the complainant                        : Mohini Bhandari
c) Name of accused person                  : Vinod Chopra
d) Offence complained of                   : U/s 138 N.I.Act
e) Plea of the accused                     :Pleaded not guilty
f) Date of Order                           :16.11.10
h) Final Order                             : Convicted.


THE BRIEF REASONS FOR THE JUDGMENT:            



   1.

Briefly stated the facts of the case are that both the complainants had filed a complaint u/s 200 Cr.P.C. for prosecuting the accused for the offence u/s 138 N.I. Act r/w Sec. 420 IPC.

con.............

2. The case of the complainants is that Sh. Krishan Bhandari, the husband of complainant no.1 and the father of complainant no.2, had given a loan of Rs.3,00,000/­ (Rs.Three Lacs only) to the accused. Out of the said amount the loan of Rs.One Lac was given in the name of Bharat Traders, of which the accused was a proprietor, vide cheque drawn on State Bank of Patiala, Surya Nagar, Gaziabad, bearing cheque no.279202 dated 13.05.1992. The second cheque was also of amount of Rs. 1,00,000/­, given by Sh. Krishan Bhandari, in the name of self, to the accused, bearing cheque no.279203 drawn on State Bank of Patiala dtd. 18.05.1993. The third cheque was issued by complainant no.1for a sum of Rs. 1,00,000/­ in favour of the accused, vide cheque bearing no.072042 dtd. 01.05.1995 and drawn on Bank of Maharashtra, Vivek Vihar, Delhi. The said three cheque were encashed by the accused on his banker Indian Bank, Rajouri Garden, Delhi. It is the case of the complainants that towards the repayment of the aforesaid loan, the accused had issued one cheque each in favour con.............

of complainant no.1 & complainant no.2 for an amount of Rs,1,50,000/­ each. The first cheque issued by the accused in favour of complainant no. 1 was drawn on "Punjab National Bank, Rajpouri Garden, New Delhi"

bearing cheque no.319287 dtd, 01.10.94 for a sum of Rs.1,50,000/­. The second cheque issued by the accused in favour of complainant no.2 was drawn on the same bank and was bearing cheque no.319289 dtd. 01.10.94 for an amount of Rs.1,50,000/­. It is further the case of the complainants that the aforementioned first cheque was presented by the complainant no.1 to her banker, the Bank of Maharashtra, Vivek Vihar, Delhi and the second cheque was presented by the complainant no.2 to his banker, Canara Bank, Rajouri Garden, Delhi and both the cheques were returned unpaid on 02.04.95 vide bank memos dtd.30.03.95 with the reasons "insufficient funds". Thereafter within 15 days of the dishonor of the cheques, ( as was the stipulated period then) a legal notice of demand dtd.14.04.95 was sent on 15.04.1995 by registered AD and an acknowledgement con.............

was received back on 23.04.95. It is further the case of the complainants that the accused neither replied to the said notice nor paid the amount of cheques.

3.Vide order dtd. 13.02.1998, the accused was summoned for the offence u/s 138 N.I.Act only.

4.Vide order dtd. 10.02.05, Sh. Bhupesh Kumar, the then Ld. MM served a notice u/s 251 Cr.P.C. upon the accused for the offence u/s 138 of the N.I.Act, to which the accused pleaded not guilty and claimed trial.

5.However, subsequently vide order dtd. 22.08.05 the said notice was amended and an amended notice u/s 251 Cr.P.C was served upon the accused pertaining to both the cheques in question, as the earlier notice U/s 251 Cr.PC pertained to only one cheque.

6. In support of its case the complainant has examined six witnesses.

PW­1 is complainant no. 2 Sh. Rohit Bhandari and has con.............

deposed on the lines of the complaint.

PW­2 is Smt. Mohini Bhandari the complainant no1 and has also deposed on the lines of the complaint. PW­3 Sh. V.R. Chima, PW­4 Sh. Ravi Verma and PW­5 Sh. O.P.Dhavan are summoned witnesses from respective banks and have deposed about the summoned bank records relating to the bouncing of the aforesaid two cheques.

PW­6 Sh. Aman Lekhi, Advocate has deposed about the legal notice of demand issued by him to the accused on the directions of the complainants.

7. Thereafter the statements of accused u/s 313 Cr.P.C. was recorded and the accused denied the incriminating circumstances put to him. The stand of the accused was that he made the payment towards bounced cheques, in cash vide Ex. PW­1/DA to EX. PW­1/DB. He further stated that the present case is a false case.

8. Thereafter, the accused examined three witnesses in his defence. DW­1 Sh. Vasudev Chopra, the brother of con.............

father of the accused and a purported witness to Ex. PW­1/DA to PW­1/DE and has deposed on the lines of the case of the accused. DW­2 Smt. Urmila Wason is the mother in law of the accused and Mami(maternal aunt) of the complainant and is also a purported witness to Ex. PW­1/DA to PW­1/DE and has also deposed on the lines of the case of the accused. DW­3 is Mr. Sunil Kumar the record clerk from the record room sessions and has deposed about the dismissal in default/non prosecution of the suit of the plaintiff (complainants herein) against the defendant(accused herein), vide order dated 27.01.99.

9. I have heard Sh. Pankaj Kotra, Ld. Counsel for the complaiants and Sh. Ramesh Madan, Ld. Counsel for the accused and have perused the record carefully.

10. For proving the case U/s 138 N.I. Act against both the accused persons, the complainants had to prove:

a)Both the cheques were issued by the accused in con.............

discharge of his debt and legal liability.

b) Both cheques were presented with the bankers of the complainants within the stipulated period and returned back unpaid due to insufficiency of funds.

c)Within 15 days of the receipts of the information about the bouncing of the said cheques, from the bank the complainants issued legal notice of demand to the accused which must have been served.

d). Even after the expiry of 15 days from the receipt of notice, accused did not make the payment and within 30 days thereafter the present case was filed.

11.The factum of issuance of said 02 cheques by the accused towards discharge of his debt/ legal liability does not appear to be in dispute, specially in view of the fact that no such plea has been taken by the accused either in reply to the notice U/s 251 Cr.PC or in his statement U/s 313 Cr.PC. Further no suggestion has been given to the prosecution witnesses PW­1 & 2 that the said cheques were not issued by the accused or were with out con.............

consideration. Also the case of the accused is that the payment in cash was made with respect to the aforesaid 02 cheques vide ExP­1/DA to ExPW1/DE executed by complainant no.2. In any case, the complainants have deposed on the lines of the case of the prosecution on those point and have categorically deposed that the cheuques were issued by the accused in discharge of his debt over liability. Hence the factum of issuance of 02 cheques by accused stands proved.

12. Further PW­1 & 2 have clearly deposed that they had presented the said cheques with their banker within stipulated period and that the said cheques were bounced with the remark "insufficient funds". Also from the testimony of PW­3 to PW­5, the factum of bouncing of said cheques due to insufficiency of funds stands proved as no suggestion was given on behalf of accused to these witnesses that the return memo ExPW1/A and ExPW1/B with respect to the bouncing of aforesaid cheques were forged or fabricated. Thus the factum of con.............

presentation of said cheques with the bankers of the complainants and return of said cheques unpaid due to insufficiency of funds by the bankers of the accused, stands duly proved. The accused were not able to rebut the presumption about the return memos a per N.I.Act.

13.Also both the complainants have categorically deposed that they were informed by their bankers through return memo about the bouncing of said cheques on 2.4.95. No contrary suggestion or evidence on the said point was lead on behalf of accused persons. Hence it stands proved that the complainant had received the information regarding bouncing of the said cheques on 2.4.95. Further it was open to the accused to get the concerned bank record summoned to prove that the said return memos were received by the complainants on 30.3.95 as alleged by him ( accused), which is not the case here.

14.Also both the complainants have categorically deposed that legal notice of demand ExPW6/A regarding bouncing con.............

of cheques was sent to the accused on 15.4.95 vide reg.AD receipt, which was served upon the accused and acknowledgment card duly signed, was received by the complainant. Although the accused has tried to make out the case that the said legal notice of demand was never served but no suggestion to this effect was given to the complainants. Also PW­6 has deposed that he had issued the legal notice of demand as Advocate on behalf of the complainants and has stated that the said legal notice of demand ExPW1/DE was issued by him by regd. AD receipt which is duly proved and of which the AD card duly signed was returned back and from which , it is clear that the accused was served with the legal notice of demand, as no contrary evidence from postal department was led or proved by accused.

15. Now what has left to be proved by the complainants was that even after the expiry of 15 days ( as it then was ) from the receipt of legal notice of demand, the accused did not make the payment of said cheques and that con.............

cause of action arose on the expiry of said 15 days and further that the complaint was filed within one month thereafter. Now the complainants have categorically deposed that even after the expiry of 15 days from the receipt of aforesaid legal notice of demand, the payment of aforesaid 02 cheques was not made by the accused and hence the cause of action arose in favour of the complainants and against the accused on the expiry of said 15 days period. The defence of the accused is that the accused had made the payment of said cheques in cash vide purported receipts ExPW1/DA to PW1/DE executed by complainant no.2 and witnessed by Mr. L.C.Chopra, father of accused and DW­2 Smt Urmilla Wason mother in law of accused. It is further the case of the accused that as per ExPW1/DA to PW1/DE the complainant no.2 had acknowledged the payment of said cheques on behalf of himself as well as on behalf of his mother the complainant no.1 and had stated that the said cheques have been misplaced and further that the legal notice dated 15.4.95 be treated as withdrawn.

con.............

Complainant no.2 has disputed the execution of said receipts in his testimony as PW­1 in the examination in chief. He has clearly deposed that the accused offered space in his lab M/s Bharat lab & Scan center at J­10, Rajouri Garden for making of chamber for practicing homepathy by complainant no.2 and that for this purpose, accused had obtained 4­5 numbers of signatures of complainant no.2 on the letter heads of Bharat Lab and Scan center. Ld counsel for the complainant has strongly contended that the said letter heads in blank and bearing the signatures of the complainant no.2 for above purpose were torned from top and are being misused.

It is not in dispute that the parties are close relatives. It also does not appear in dispute that in the past they had good relations. Perusal of ExPW1/DA to PW1/DE reveals that they are 05 different documents on half size paper to a normal paper used for executing documents and the same are purported to be showing receiving amount of Rs 50,000/­ , one lac on behalf of complainant no.1 and Rs 70,000/­ and Rs 80,000/­ on con.............

behalf of himself respectively by complainant no.2 and one revenue stamp crossed by pen with the signatures only of L.C.Chopra and Urmilla Wason as witnesses as claimed by accused. Further the said receipt ExPW1/DE is purported to be the acknowledgement regarding details about payment made in cash by accused vide ExPW1/DA to PW1/DE towards his aforesaid liability. Further perusal of said document reveals that they are half in size to normal document. It creates doubt as to why the said papers are half in size to normal document. Doubt increases more specifically in view of the stand of the complainant no.2 that he had given his signatures on 4­5 bank letter heads of "Bharat Lab and Scan Center" and the same have been torned from the top and misused as at the time the same were signed in blank the parties being close relatives were having good relations and the said signatures on blank paper were given for aforesaid purpose. Admittedly the revenue stamps are not bearing the signatures of complainant no.2 and it is merely crossed by pen and not signed by con.............

the executant as in the normal practice. The signatures of complainant no.2 are there on other side of the paper towards right side. Also admittedly neither the parentage nor address of said witnesses L.C.Chopra and Urmilla Wason have been mentioned on the said documents, which is contrary to normal practice. It further creates doubt as to why the same have not been mentioned. Also when the payment by cheque was given as a loan to the accused then inspite of making payment by means of the cheque or bank draft why the same was allegedly made in cash has not been explained by accused. The same is also contrary to provision of income tax Act as such amounts should have been paid by cheque. Also no source of arranging the said money has been explained or brought on record by the accused. Further admittedly the defence witness DW­1 & DW­2 showed ignorance about the source of money and they being close relatives were expected to know the source of money allegedly repaid by accused. Also the testimony of DW­2, does not appear to be natural and it appears that they have con.............

deposed in favour of accused as they are closely related to him and in order to save him as DW­2 admittedly was resident of outside of Delhi and was surprisingly present on the date of execution of alleged receipts at the home of the accused and further she was not aware about the important question about the source of money, which as close relative she must have known if the claims of the accused was true. Further all relevant suggestions regarding the said documents for not having been executed by complainant no.2 and being forged and misued have been given on behalf of the complainants. Further the accused neither replied to the legal notice of demand nor brought the factum of execution of the said receipt till very late stage even after his summoning and appearance in court. In the light of the same and from the material on record, the misuse of said purported signatures on documents ExPW1/DA to PW1/DE can not be ruled out, specially in view of fact that the said payment was not made by the accused through cheque or bank draft. Ld counsel for the accused has relied upon con.............

the Judgment in case of Ashok Chopra & ors vs. Syndicate Bank & anr, reported in 169 (2010) Delhi Law Times, 361 to argue that since the documentary evidence has been produced on record, therefore, verbal contrary testimony of the complainant can not be considered. However judgment cited by Ld counsel for the complainant is clearly distinguishable on facts and from the totality of circumstances, non execution of aforesaid 05 documents by complainant no.2 and the misuse of the same by accused can not be ruled out.

16.Also the judgment relied upon by the accused in case of kumar Exports vs Sharma Carpets , reported in (2009) 2 Supreme Court Cases 513 to argue that the liability of accused has not shown in his income tax return the loan given by him to the accused, goes against accused only as factum of issuance of cheque by accused has not been disputed by accused and as per section 139 N.I.Act, there is presumption in favour of accused that the said cheque were issued for debt or liability, by accused and con.............

rather the said judgment goes against the accused as the accused has failed to prove by not showing in his income tax return on record that the said payments were made by him vide purported receipts ExPW­/DA to PW1/DE to the complainants. Further if for arguments sake, it is presumed that ExPW1/DA to PW1/DE were executed by complainant no.2 still in the present case, the accused was being prosecuted for issuance of 02 cheques of Rs. 1,50,000/­ each in favour of complainant no.1 & 2. Admittedly no written authority in favour of complainant no.2 in receiving any amount on behalf of complainant no.1 has been produced or proved on record by accused. In the absence of the same, the liability of accused towards complainant no.1 does not stand discharged and the presumption U/s 139 N.I.Act does not stand rebutted against accused. Considering the facts and circumstances, specially in view of fact that the present case was filed within limitation, I am of the considered opinion that the complainants have proved their case U/s 138 N.I.Act beyond reasonable doubts against the con.............

accused. Consequently the accused is held guilty for the offence U/s 138 N.I.Act.

Announced in the open court (Ashutosh Kumar) today i.e on 16.11.10 SCJ­cum­RC:NW:Rohini Courts Delhi con.............