Delhi District Court
Reliance Capital Ltd vs . on 7 November, 2013
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
Reliance Capital Ltd.
Vs.
Usha Khanna
C.C. No. 3340/12
P.S.: Friends Colony U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 29.05.2009
b) Name of Complainant Reliance Capital Ltd. through
Authorized Representative Sh.
Vineet Sahdev subsequently
substituted by Sh. Rohit Nijhawan.
c) Name of the accused and Usha Khanna W/o Sh. V.S. Khanna,
Address: R/o A39/F2, Rampuri, Near Surya
Nagar, Ghaziabad, U.P.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: Convicted
g) Date of order: 07.11.2013
h) Date of institution of case: 04.06.2009
i) Date of decision of case: 07.11.2013
CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 1 of 10 2 Brief facts and reasons for decision of the case:
1. The present case has been instituted upon a complaint made by Reliance Capital Ltd. through its authorized representative Sh. Vineet Sahdev (hereinafter referred as 'the complainant') against Usha Khanna (hereinafter referred as 'the accused) alleging that accused approached the complainant company with a request of financial assistance in form of a personal loan. Her request was considered by the complainant and a loan in sum of Rs.3,00,000/ was sanctioned and disbursed to her under the loan agreement no. 'RLPLTEL000062015'. However, accused began to default in repayment of installments. Therefore, her loan was recalled and accordingly accused became liable for the payment of foreclosure amount. In order to discharge her liability, accused issued a cheque bearing no.'478389' dated 20.03.2009 for sum of Rs.33,000/ drawn on Canara Bank. On presentation, the cheque was returned unpaid due to 'insufficient funds' vide bank memo dated 23.03.2009. The cheque amount was demanded by the complainant via a legal demand notice dated 13.04.2009, dispatched to the accused on 15.04.2009. It is further alleged that accused failed to make the payment within the statutory period of 15 days despite service of legal demand notice. Hence, the present complaint has been filed u/s. 138 N.I. Act.
CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 2 of 10 3
2. On appearance, a notice u/s.251 CrPC was served upon the accused, to which she pleaded not guilty and claim trial.
3. During the complainant's evidence, Sh. Rohit Nijhawan, authorized representative was examined as sole complainant witness. He filed his evidence by way of affidavit Ex.CW1/2. The other documents filed and relied upon by the complainant are: ● Power of Attorney (Ex.CW1/A), ● Impugned cheque (Ex.CW1/B), ● Cheque Returning Memo (Ex.CW1/C), ● Legal demand notice (Ex.CW1/D) and its postal receipt (Ex.CW1/F), ● Loan document {Mark 'X' colly.)}.
CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 3 of 10 4
4. The complainant witness was cross examined by Sh. P.S. Jha, Ld. Counsel for the accused appointed by The Delhi Legal Service Authority, Dwarka.
5. The complainant evidence was followed by statement of accused u/s. 313 CrPC, wherein the entire incriminating evidence against the accused was put to her. During the statement, accused denied the case of complainant in entirety. Further, she expressed her willingness to lead defence evidence.
6. During the defence evidence, accused examined herself as defence witness u/s.315 CrPC and she was cross examined by Sh. Sudhir Sharma, ld. Counsel for the complainant.
7. During the course of arguments, both the counsels for the parties advanced their useful and pertinent arguments for assistance of this court.
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8. I have heard the arguments and now proceed with the judgment.
9. The existence of legally enforceable debt or liability is the first ingredient of offence u/s.138 N.I. Act. Section 118(a) and 139 of N.I. Act provides the presumptions that unless the contrary is proved the presumptions shall be made that every negotiable instrument was made or drawn for consideration and same was received by the holder in discharge of debt or liability. No doubt, the presumptions are rebuttable presumptions and the burden to rebut lies upon the drawer of the cheque. Accordingly, in the present case, this burden is for the accused to discharge.
10. As per the case of the complainant, the legally enforceable debt or liability against the accused arose from a loan availed by her from the complainant. However, accused has denied of having availed any loan from the complainant during her statement u/s. 313 CrPC and she repeated the same story during the statement u/s.315 CrPC. To prove the existence of alleged loan, the complainant has filed the certified copy of loan agreement Mark 'X' (Colly.). As per the document, the loan in sum of CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 5 of 10 6 Rs.3,00,000/ was granted to the accused. The certified copy of promissory note executed by the accused, wherein she undertook to repay the loan of Rs.3,00,000/ to the complainant is also annexed with loan agreement. Both of these documents, i.e., loan agreement and promissory note allegedly bear the signatures of the accused. But, the accused has denied her signatures upon these documents during her cross examination.
11. Now, if the accused had not executed these documents, the defence could have moved a proper application for referring these documents for obtaining opinion of the handwriting expert but no such steps were taken. Moreover, not even a single suggestion or question was put to the CW1 regarding the forgery of signatures of the accused upon the loan agreement and promissory note during his cross examination, on the date of filing of these documents. Surprisingly, the photograph of the accused is also affixed on loan agreement, which shows that either the accused or someone on her behalf had approached the complainant for some financial assistance. Otherwise, how on earth, the photograph of the accused came into possession of the complainant. The justification CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 6 of 10 7 given by the accused that same was handed over to her husband is neither corroborated nor convincing.
12. In view of the above discussions, I find no reason to doubt the authenticity and genuineness of loan agreement and promissory note. These documents have further strengthened the statutory presumptions u/s.118(a) and 139 N.I. Act. Hence, the defence of the accused that no loan facility was availed by her from the complainant is not convincing and same is accordingly not tenable.
13. Further, the issuance of the impugned cheque. The accused has not disputed her signatures on the impugned cheque. Infact she has admitted her signatures during the service of notice u/s.251 CrPC and statement u/s.315 CrPC. However, the contention of the defence is that impugned cheque was never issued to the complainant and same was handed over by the accused to her husband as blank signed. CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 7 of 10 8
14. The legal preposition is clear on the point of a blank signed cheque. Once the signatures upon a cheque are admitted by drawer, the subsequent filling up of the details doesn't affect its validity. I may place reliance upon the judgment passed by Hon'ble High Court of Delhi in "Jaipal Singh Rana Vs. Swaraj Pal 149(2008) ELT 682". It was held that putting the amount and the name "there is no material alteration on the cheque u/s 87 NI Act." In fact there is no alteration but only adding the amount and the date. It was further observed in the aforesaid judgment that;
"there is no rule of the banking business that the name of the payee as well as the amount should be written by drawer himself. No law provide that in case of cheque the entire body has to be written by the drawer only."
15. The next contention of the accused that the impugned cheque was handed over to her husband is not supported or corroborated by any evidence. The presumption u/s.118(g) N.I. Act is also in favour of the CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 8 of 10 9 complainant. In absence of any evidence, this presumption also gone unrebutted.
16. The dishonour of the impugned cheque is proved by return memo dated 23.03.2009 Ex.CW1/C. As per which the impugned cheque was returned unpaid due to 'Insufficient Funds'. The dishonour of the impugned cheque is apparently not disputed as no question was put to the CW1 disputing the dishonour of the impugned cheque and the return memo.
17. The legal demand notice dated 13.04.2009 has been filed on record as Ex.CW1/D and postal receipt Ex.CW1/E proves that it was dispatched to the accused on 15.04.2009. The correctness of the address mentioned on he legal demand notice has been admitted by the accused during her cross examination. Therefore, delivery of the legal demand notice upon the accused can safely be presumed under the mandate of section 27 of General Clauses Act. No evidence was led to rebut this presumption. CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 9 of 10 10
18. With the afore noted discussions, I am of the considered opinion that all the ingredients of offence u/s.138 N.I. Act are proved beyond all reasonable doubt. Accused failed to raise any plausible defence in her favour. She stands convicted accordingly for the offence u/s.138 N.I. Act. (Announced in the open court on 07.11.2013) This Judgment contains 10 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No. 3340/12 ; Reliance Capital Ltd. Vs. Usha Khanna Page 10 of 10