Delhi District Court
Satish Kumar Sharma vs Meena on 26 February, 2011
CC No.207/A/10
Satish Kumar Sharma Vs Meena
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE : DISTRICT-NORTH
TIS HAZARI COURTS, DELHI
SATISH KUMAR SHARMA Date of institution of case : 13.07.2004
VS Date of decision of case : 26.02.2011
MEENA
Unique ID No.02401RO103462004
CC.NO.207/A/10
P.S.-PATEL NAGAR
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 24.06.2004
2. Name & address of the complainant : SATISH KUMAR SHARMA S/o Late Sh. Jagdish Chader Sharma R/o. T-708, Faiz Road, Karol Bagh, New Delhi.
3. Name & address of the accused : Meena W/o Sh. Ashok Kumar R/o. House No.392 Joshi Road, Gali no.13 Karol Bagh, New Delhi.
4. Offence complained of : U/s.138 of Negotiable Instruments Act
5. Plea of accused & examination if any: Pleaded not guilty.
Examination u/s.313 Cr.PC Defence Evidence was led.
6. Final order : Acquitted
7. Date of such order : 26.02.2011 1/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court proposes to decide the complaint case under section 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant Sh. Satish Kumar Sharma against the accused Ms. Meena.
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
The complainant was having relations with the accused and her family from the last so many years. It is submitted that on several times the accused and her husband namely Sh. Ashok Kumar used to take loan from the complainant and returned the same as promised by them. On 20th September, 2003 the accused along with her husband came to the house of the complainant and requested for a loan of Rs.60,000/- and on the request of the accused and her husband, the complainant gave loan of Rs.60,000/-. In lieu of that loan, accused issued a cheque bearing no.409352 dated 26.12.2003 drawn on Indian Overseas Bank, Defence Colony, New Delhi and assured the complainant for encashment of the cheque on its due date. However, on presentation of the same, the cheque was dishonoured vide cheque returning memo dated 26.05.2004 with remarks "Exceeds arrangements". The complainant has thereafter sent legal notice of demand dated 04.06.2004 to the accused by Registered post and UPC dated 07.06.2004 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. As a result of which the 2/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena complainant filed the instant complaint for prosecution of the accused u/s 138 of the Negotiable Instruments Act, 1881.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused vide order dated 13.07.2004 for the offence u/s 138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice u/s.251 of the Code of Criminal Procedure, 1973 dated 07.06.2005 was given to the accused to which accused pleaded not guilty and claimed trial.
4. In order to prove the case, Sh.Satish Kumar Sharma, complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He got the original cheque exhibited as exh.CW1/A, cheque returning memo as exh.CW1/B, the legal demand notice dated 04.06.2004 as exh.CW1/C, postal receipts of registered post and UPC as exh.CW1/D & CW1/E and AD card as CW1/F. Sh. Satish Kumar Sharma, complainant was cross examined by Ld. counsel for the accused. Thereafter, the complainant evidence was closed at request.
5. After that the statement of accused was recorded u/s 313 r/w. 281 Code of Criminal Procedure, 1973 in which all the incriminating evidence along with exhibited documents were put to the accused which were denied by the accused and the accused stated the cheque was not issued by her nor it bears her signature. The accused further said that she is not the account holder of the account from which the disputed cheque has been issued. She has not taken 3/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena any loan from the complainant.
6. Opportunity for leading the defence evidence was given to the accused.
6a. The accused got her husband examined as DW1 who told that cheque in dispute was given to Mr. Gulshan Kumar who is the brother of the complainant which was without signature along with two other signed cheques in lieu of loan taken from him which were not returned to DW-1 despite repayment of loan. The cheque in dispute pertains to his account maintained with Indian Overseas Bank, Defence Colony, Delhi. The account is only in his individual name and not in the name of his wife Meena, who is accused in the present case. It was further stated in his evidence that the complainant has misused the cheque after the death of Gulshan Kumar by filling the name and signatures of his wife. It was stated in his cross examination that the signature on the cheque exh.CW1/A is neither done by him nor his wife. The said cheque was blank.
6b. Accused also examined a witness from the Indian Overseas Bank, Defence Colony, Delhi as DW2 who brought the record of savings bank account no.19288 in the name of Sh. Ashok Kumar, R/o. H.No.392, Gali No.13, Joshi Road, Karol Bagh, New Delhi which is exh.DW2/1. It was stated by the said witness in his cross examination that the cheque bearing no.409352 bearing account no.19288 exh.CW1/A is issued from their branch.
7. The court heard learned counsels and perused the entire record of 4/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena the case file as well as evidence on record. In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of.
8. The complaint case at all relevant point of time being tried as summons trial, deserves a judgment to be pronounced under section 355 of the Code of Criminal Procedure, 1973.
9. It would be appropriate to quote the Hon'ble Supreme Court in Rangappa Vs. S.Mohan arising out of SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010.
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act."
10. Before proceeding further, let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act, 1881 are as follows:
a) The accused issued cheque on an account maintained by him with a bank.
b) The said cheque has been issued in discharge of any legal debt or other liability.
c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
d) When the aforesaid cheques were presented for 5/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena encashment, the same were returned unpaid/ dishonoured.
e) The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
f) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s. 138 of the Negotiable Instruments Act, 1881.
11. Now let us deal with the each ingredient of the section 138 of the Negotiable Instruments Act, 1881 to see whether the case against the accused has been proved or not.
a) WHETHER THE CHEQUE WAS ISSUED BY THE ACCUSED ON AN ACCOUNT MAINTAINED BY HIM : In the statement recorded u/s 313 read with 281 Cr.PC, the accused stated that the cheque was not issued by her nor it bears her signature. She is not the account holder of the account from which the disputed cheque has been issued. The accused got her husband examined as DW1 who said that cheque in dispute was given by him to Mr. Gulshan Kumar who is the brother of the complainant, which was without signature along with two other signed cheques in lieu of loan taken from him which were not returned to DW-1 despite repayment of loan and the same pertains to his account maintained with Indian Overseas Bank, Defence Colony, Delhi. The account is 6/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena only in his individual name and not in the name of his wife Meena who is accused in the present case. It was further stated in his evidence that the complainant has misused the cheque after death of Gulshan Kumar by filling the name and signatures of his wife. It was stated in his cross examination that the signature on the cheque exh.CW1/A is neither done by him nor his wife. The said cheque was blank.
Accused also examined a witness from the bank Indian Overseas Bank, Defence Colony, Delhi as DW2 who brought the record of savings bank account no.19288 in the name of Sh. Ashok Kumar, R/o. H.No.392, Gali No.13, Joshi Road, Karol Bagh, New Delhi which is exh.DW2/1. It was stated by the said witness in his cross examination that the cheque bearing no.409352 bearing account no.19288 exh.CW1/A is issued from their branch thereby proving that the cheque was issued from an account not maintained by the accused but from the account of Ashok Kumar, the husband of the accused. Even the complainant admitted during cross examination that he did not know whether the cheque bears the signatures of the accused and whether the same pertains to the account of the accused or her husband. However, complainant amitted that the cheque was already filled up when the accused issued it in lieu of loan.
The accused successfully proved that the cheque was not issued from her own account. But so far as issuance of cheque is concerned, the complainant has successfully proved that the cheque was issued to him by the accused. The defence that the cheque in dispute was given by the husband of the accused to Mr. Gulshan Kumar who is the brother of the complainant which was without signature, appears to be farce as no person would ever accept an unsigned cheque. Further, not lodging of any complaint regarding refusal to 7/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena return the cheques including the cheque in dispute despite repayment of loan against which the same were issued falsifies the version of the witness as such conduct is not expected of an ordinary person in such circumstances. This version of accused is only an afterthought, which is further evident from the reply dated exh.CW1/D1 (put to complainant during his cross examination} sent by the accused in response to the legal notice wherein the factum of issuing the present unsigned cheque in favour of Sh. Gulshan Kumar is not at all mentioned.
In view of the aforesaid discussion and the evidence on record, it stands proved that the cheque in question was issued by the accused but the same has not been issued from an account maintained by the accused.
b) WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY : Perusal of the record reveals that the cheque in question exhibited as CW1/A dated 26.12.2003 got dishonoured vide separate cheque returning memo exhibited as CW1/B dated 24.05.2004 and the same is not disputed by the accused clearly showing that the cheque has been presented within a period of its validity i.e. within six months from the date of issuance of the cheque.
c) DISHONOUR OF CHEQUE IN QUESTION: In the present case, the complainant, who appeared as complainant witness got the cheque returning memo exhibited as CW1/B. The dishonor of the cheque in question has not been disputed by the accused, as even a suggestion was not given by accused in this regard nor the cheque returning memo has been challenged by the accused.
Hence, cheque returning memo and dishonour of cheque for insufficient funds has to be treated as proved u/s.146 Negotiable Instruments 8/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena Act, 1881. Moreover accused has done nothing to rebut the mandatory presumption of law arising in favour of complainant in this respect.
Therefore, considering the entire evidence on record, it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 24.05.2004 which is exh.CW1/B with the reason "Funds Insufficient".
d) SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED: In the persent case, the complainant, who appeared as complainant witness has specifically stated in his examination in chief that the he has issued the legal notice of demand dated 04.06.2004 which is exh.CW1/C and the same was sent to the accused on 07.06.2004 vide registered post & UPC. Receipts of the same are exh.CW1/D & CW1/E respectively. Legal notice of demand was received by accused as the accused admittedly sent reply dated 15.06.2004 to that notice which is exh.CW1/D1.
In view of the sending of reply exh. CW1/D1 in response to the legal notice of demand, it stands proved that the legal notice of demand was served upon the accused.
e) WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY : Before deciding this issue let us go through the relevant provision of law.
Section 46 of the of Negotiable Instrument Act, 1881 speaks of the delivery. It reads as follows:
"The making, acceptance or endorsement of a promissory notice, bill of exchange or cheque is completed by delivery actual or constructive." 9/14
CC No.207/A/10 Satish Kumar Sharma Vs Meena Section 118 (b) of Negotiable Instrument Act, 1881 provides that until the contrary is proved, the following presumption shall be made.
(b) as to date that every Negotiable Instrument bearing a date was made or drawn on such date.
Moreover, there is a presumption in favor of the complainant u/s. 118 (a) Negotiable Instruments Act, 1881 that until the contrary is proved. It will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instrument Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the section 138 for the discharge in whole or in part of his debt or liability.
Further in view of section 118 and 139 of Negotiable Instrument Act, 1881 and recent judgment of Hon'ble Supreme Court in Rangappa Vs. S.Mohan decided on 07.05.2010, there is no burden on complainant to establish legal liability. It is settled law that offence of dishonour of cheques is a technical offence involving a reverse onus clause. It is not the complainant who has to establish liability but the accused who has to rebut the same.
Now it will have to be examined whether the accused has rebutted the presumption as contemplated by section 118(b) and section 139 of Negotiable Instrument Act, 1881.
In the case in hand, Sh. Satish Kumar Sharma, the complainant specifically stated in his examination in chief that the accused took loan from the complainant and the cheque in question was issued by accused in discharge of 10/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena her legal liability towards the repayment of the loan amount. The complainant consistently affirmed the same during his cross examination. The complainant even established his paying capacity by disclosing the source of loan through his replies to questions put in cross examination. The accused failed to impeach the creditibility and veracity of the complainant's version.
The complainant admitted that he did not know whether the cheque bears the signatures of the accused and whether the same pertains to the account of the accused or her husband. However, complainant amitted that the cheque was already filled up when the accused issued it in lieu of loan.
By way of suggestions which were denied by the complainant and in statement u/s. 313 Cr.PC r/w. 281 Cr.PC, the accused took the defence that the cheque was not issued by her nor it bears her signature. The accused further said that she is not the account holder of the account of which the disputed cheque has been issued. She has not taken any loan from the complainant.
The accused got her husband examined as DW1 who said that cheque in dispute was given by him to Mr. Gulshan Kumar who is the brother of the complainant which was without signature along with two other signed cheques in lieu of loan taken from him which were not returned to DW-1 despite repayment of loan and the same pertains to his account maintained with Indian Overseas Bank, Defence Colony, Delhi. It was further stated in his evidence that the complainant has misused the cheque after death of Gulshan Kumar by filling the name and signatures of his wife. It was stated in his cross examination that the signature on exh.CW1/A is neither done by him nor his wife. The said cheque was blank. The defence that the cheque in dispute was given by the husband of the accused to Mr. Gulshan Kumar who is the brother of the complainant which 11/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena was without signature appears to be farce as no person would ever accept an unsigned cheque. Further, not lodging of any complaint regarding refusal to return the cheques including the cheque in dispute despite repayment of loan against which the same were issued as admitted by DW-1 in his cross examination falsifies the version of the witness as such conduct is not expected from an ordinary person in such circumstances. This version of accused is only an afterthought which is further evident from the reply dated 15.06.2004 ex.CW1/D1 (put to complainant during his cross examination} sent by the accused in response to the legal notice wherein the factum of issuing the present unsigned cheque in favour of Sh. Gulshan Kumar is not at all mentioned.
In this case accused has failed to prove his version taken in his defence regarding the taking of loan. Mere bald pleas not supported by the accused's own document ex.CW1/D1 (put to complainant during his cross examination) sent by the accused in response to the legal notice, cannot be accepted in the light of presumption u/s. 118 (a), (b) and Section 139 of Negotiable Instrument Act, 1881.
Considering the entire evidence on record, it stands duly proved that the cheque in question exh.CW1/1 was issued in discharge of legal liability of the accused and for consideration.
f) THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE: It is on record that the legal notice of demand was sent to the accused by registered post as well as UPC to which accused admittedly sent reply which is exh.CW1/D1 in which the accused has denied any liability towards the cheque in question. Instead of making the payment to the complainant within 15 days of 12/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena the receipt of the legal notice, sending of reply exh.CW1/D1 is enough to infer that accused did not make the payment of cheque amount within 15 days of receipt of the legal demand notice.
12. In view of the aforesaid discussion, it is clear that that the complainant has proved that the accused issued the cheque against the loan advanced by the complainant. However, the complainant failed to prove that cheque was issued from an account maintained by the accused and the accused cogently established that the cheque pertains to the account of her husband and not her own bank account. In Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (3) CC Cases (SC) 2004-The Hon'ble Supreme Court noted that the cheque alleged to have been issued by the petitioner to the complainant was issued from an account pertaining to some other person. The Hon'ble Court also noted that one of the essential ingredients of the offence punishable u/s.138 of the Negotiable Instruments Act is that the cheque must have been drawn on an account maintained by the accused. Since the cheque in the case before the Hon'ble Supreme Court was not issued from the account maintained by the petitioner, it was held that one essential ingredient of offence u/s.138 of the Negotiable Instruments Act was not satisfied and proceedings were quashed.
13. So, in the present facts and considering the aforestated observation of Hon'ble Supreme Court as the basic ingredient of Section 138 of Negotiable Instrument Act, 1881, that the cheque pertains to an account maintained by the accused, has been duly disproved on record, 13/14 CC No.207/A/10 Satish Kumar Sharma Vs Meena accordingly the complaint is hereby dismissed.
14. This court accordingly returns a finding of not guilty.
15. The accused is hereby acquitted. Surety is discharged. Bail Bond/Surety Bond is cancelled. Endorsement be cancelled and FDR be returned, if any. Original documents, if any be returned after retaining its photocopy on record. File be consigned to Record Room.
Announced in the open court
today i.e. 26.02.2011 VIPLAV DABAS
MM/North/Delhi
26.02.2011
14/14