Delhi District Court
In The Case Titled Goa Plast Pvt. Ltd. vs . Chico Ursula D'Souza 2003 on 21 August, 2013
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IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
Amit Kumar
VS
Anil Kumar Gill
CC NO. 1081/12
PS:Palam Village
U/S: 138 N.I. Act
Date of Institution: 25.10.2012
Name of the Complainant Amit Kumar s/o Sh. Bhoop
Singh, r/o RZF 760/44, Gali No.
3, Raj Nagar PartII, Palam
Colony, New Delhi110045.
Name and address of accused Anil Kumar Gill s/o Sh. Chander
Bhan, r/o RZF 762/33 B, Gali
No. 5, Raj Nagar PartII, Palam
Colony, New Delhi110045.
Also at: Proprietor of M/s Gill
Glass House, r/o RZF 763/31 B,
Raj Nagar PartII, Near N.R.
Public School, Palam Colony,
New Delhi110045.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 21.08.2013
Date of Institution of case: 25.10.2012
Date of hearing final arguments: 18.07.2013
Date of decision of the case: 21.08.2013
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BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgement, I shall decide the complaint case u/s 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant.
2. The facts in brief necessary for the disposal of the present case are that the complainant had visiting terms with the accused as a friend. The accused has been maintaining family relations with the complainant since last so many years and the accused approached the complainant for temporarily financial assistance in the month of February, 2012 for a short term and the complainant considering old family relations paid a sum of Rs. 3,00,000/ in the month of April, 2012 and the accused promised to repay the same within six to seven months on demand and the complainant believing upon the accused and his promise made the payment in cash to the accused. The complainant after a period of six months made the demand for repayment of the amount of Rs. 3 lakh for which the accused issued a cheque no. 963431 dated 19.09.2012 of Rs. 3,00,000/ drawn on Syndicate Bank, Palam Village, New Delhi110045 as a payment of the total amount in favour of the complainant with assurance that the said cheque will be honoured on its presentation. The cheque in question when presented for clearance by the complainant was dishonoured with remarks "STOP PAYMENT" vide returning memo dated 22.09.2012. The complainant through his counsel served a legal notice of demand dt. 27.09.2012 through courier/speed post at the address of the accused demanding payment of the dishonoured cheque within 15 days of the receipt of the notice. The legal notice was duly served upon the accused The said notice sufficiently stamped was sent at the last known correct address of the accused.
3 Despite the service of the legal notice, the accused has not made the payment of the cheque in question to the complainant till date. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 NI Act.
3. After the complaint was filed the complainant led presummoning evidence who tendered his affidavit in evidence and after hearing the Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 26.10.2012 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. Dated 17.01.2013 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove his case the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before the court. He got exhibited the original cheque bearing no. 963431for a sum of Rs. 3,00,000/ dt. 19.09.2012 drawn on Syndicate Bank, Palam Village, New Delhi110045 as Ex. CW1/1 and the cheque returning memo dt. 22.09.2012 as Ex. CW1/2 ,the legal notice of demand dated 27.09.2012 as Ex. CW1/3 and the postal and courier receipt vide which the aforesaid notice was sent as Ex. CW1/4, Ex. CW1/5, Ex. CW1/6 and Ex. CW1/7. In his cross examination the complainant stated that he joined Combata Aviation Pvt. Ltd in the year 2007 as a trainee and remained employed with it till January, 2012 and the Combata Aviation Pvt. Ltd used to file his income tax on his behalf. He cannot tell whether he used to pay income tax or not. He has taken loan once through Kishan Credit Card.
4 Before taking loan he executed some documents on the instance of bank for purchasing tractor. But they could not purchase the said tractor and the said loan was used in some other work. The loan amount was Rs. 4 lac applied by two persons i.e him as well as his cousin. The loan was applied in March, 2012 by him in OBC Bank through Credit Card. He knows the accused since last 20 years. In his cross examination he further stated that no agreement was entered between him and accused at any point of time regarding the loan. There is no witness qua the loan mentioned by him either in his complaint or affidavit or legal demand notice. His father is working in Delhi Police. His father is also having friendly relation with the accused and he used to visit to the accused. He had no knowledge if any financial dealing is having between the accused and his father. He further stated that he does not know if accused has run any chit(monthly committee). He does not know if accused took any monetary assistance from his father at any point of time or not. He further stated that neither he nor his father ever took any monetary assistance from the accused or his family members. The amount was not arranged from any other person and same was managed by him from his savings. There was no guarantee towards the loan furnished by the accused. In his cross examination CW1 further stated that the loan was advanced at RZF 756/48 A1 Raj Nagar, PartII, Palam Colony, New Delhi. The loan was advanced in the first week of April. He voluntarily stated that in para 14 and para 15 of the complaint the month February may be written due to typographical error, however, he still maintain that he gave loan to the accused in the month of April, 2012. CW1 stated that he obtained loan from bank in the month of March, 2012 due to some urgent agriculture work. CW1 denied the suggestion that as he had no money with him till March, 2012 hence, he 5 could not advance the loan to the accused in the month of April, 2012. He stated that he does not not know who had filled up the contents of the cheque Ex. CW1/1. He stated that the ink of signature and ink of contents of the cheque are different. He stated that the accused had not signed the cheque in his presence. CW1 stated that he demanded his loan back when he again felt requirement of money hence, he demanded his money before expiry of loan period and he went to the brother of the accused and stated them that he was in need of money and accused had taken loan and is not returning the same. The brother of the accused told that as he had not advanced the loan to the accused with knowledge to them hence they cannot tell the accused to repay the same. The brother of the accused refused to intervene in the matter. When he used pressure upon the accused, he issued the said cheque. He does not know if the blank signed cheque was being kept by the accused in his drawer for making the payment to the dealers from where he purchased raw materials. He had no knowledge if the cheque in question was misplaced/taken away from the drawer of the accused and he stopped the payment against the said cheque leaf. He denied the suggestion that the accused never took loan from him at any point of time and he himself was facing financial hardship at the relevant period. He denied the suggestion that the cheque in question was misused by him by mentioning his name and amount in the cheque and tendering the same in the bank in his favour for illegal game and wrongful loss to the accused. He denied the suggestion that nothing was received by the accused hence no documentary proof/agreement was executed between them at any point of time. He further denied that suggestion that accused is not liable to pay the cheque amount in question or he is not entitled to receive the cheque amount from the accused as no loan 6 transactions was held between them. He denied the suggestion that no notice was received by the accused. Thereafter, the Complainant's Evidence was closed.
5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to the accused in which he stated that the cheque was misplaced from his drawer. In his defence he stated that he did not receive any legal demand notice, however, the said addresses are correct and he has been living the given address. No defence evidence was lead by the accused. Thereafter the matter was fixed for final arguments.
6. It is submitted by the counsel for the complainant that accused has misused the relations with the complainant and after availing a friendly loan issued a cheque which later got dishonoured. Ld. Counsel for the complainant has further submitted that accused has admitted to have signed the cheque in question.
7. On the other hand, it is submitted by Ld. Counsel for the accused that the present complaint case is a false case filed by the complainant and stated that complainant could not produce any evidence relating to the amount of Rs. 3 lakh which he alleged to have been paid to the accused as friendly loan. It is submitted by the counsel for the accused that accused has not produce any evidence to show the source of Rs. 3 lakh which he had alleged having paid to the accused as friendly loan. It is further submitted by Ld. Counsel for the accused that complainant in his cross examination stated that he never entered into any agreement regarding the loan with the accused and further no evidence qua this 7 transaction has been mentioned. It is submitted by Ld. Counsel for the accused that there is a contradiction in the statement of the complainant that in his affidavit he has stated that loan was given in February, however, before court he has submitted that the loan was advanced to the accused in the first week of April. It is further submitted by the counsel for the accused that complainant has admitted in his cross examination that he had obtained a loan in March, 2012 and when a person who is himself applying a loan, he cannot give a loan to some other person. It is submitted by Ld. Counsel for the accused that the present cheque as stated by the complainant himself was issued by the accused when he used pressure on the accused and also stated that his father is in Delhi Police goes to show that cheque in question has been obtained by illegal means. Ld. Counsel for the accused further submitted that complainant has admitted in his deposition that cheque was having two different handwritings.
8. In order to bring home the conviction of the accused, the complainant has to show not only an unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
9. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Act are as follows:
(i) The accused issued a cheque on an account maintained by him with a bank.
(ii) The said cheque has been issued in discharge of any legal debt or other liability.
(iii) The cheque has been presented to the bank within the period of six 8 months from the date of the cheque or within the period of its validity.
(iv) When the aforesaid cheque was presented for encasement, the same were returned unpaid/dishonoured.
(v) 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.
(vi) 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 committed an offence punishable u/s 138 Negotiable Instruments Act.
Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
10. WHETHER THE ACCUSED HAS ISSUED A CHEQUE ON ACCOUNT MAINTAINED BY HIM WITH THE BANK.
From the facts on record and after due admission of the accused that he issued the cheques to the complainant duly signed by him during the trial, the present fact stands proved.
11. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
There is a presumption in favour of the complainant u/s 118 Indian Evidence Act 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 9 negotiation.
Further Section 139 of the Negotiable Instruments 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 or in debt or liability. Further Section 139 NI Act is kind of reverse onus clause which puts burden on the accused to prove its case.
Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated u/s 139 NI Act has to be raised by court in favour of the complainant. This presumption is mandatory presumption and not a general presumption but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by the accused must be probable and capable of being accepted. Merely submitting before the court without putting any evidence that cheques given were lost cheques for which intimation had been given to police would be of no use to the complainant.
In the case titled Goa Plast Pvt. Ltd. Vs. Chico Ursula D'souza 2003 (2).RCR.(CR.)131.SC. Hon'ble Supreme Court held "It is to be presumed that a cheque is issued in discharge of any debt or liability. The presumption can be rebutted by adducing evidence and the burden of proof is on person who wants to rebut the presumption.
In another case titled as Hiten P. Dalal Vs. B.
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Banerjee.SCC.Criminal.960 Hon'ble Supreme Court has observed "There is a presumption of consideration for issuing the cheque and the burden of proving that the cheque was issued without consideration is upon the accused."
Therefore, with the aforesaid discussion it stands duly proved that the accused has issued cheque bearing no. 963431for a sum of Rs. 3,00,000/ dt. 19.09.2012 drawn on Syndicate Bank, Palam Village, New Delhi110045 as Ex. CW1/1 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
12. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheque in question which is Ex. CW1/1 is dated 19.09.2012 which got dishonoured vide cheque returning memo which are CW1/2 dated 22.09.2012 which shows that the cheque has been presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
13. DISHONOUR OF CHEQUE IN QUESTION In the instant case, the cheque returning memo which is Ex. CW1/2 is lying with the record of the case file. On perusal of the same it is revealed that the cheque returning memo are dated 22.09.2013 and the same were issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'STOP PAYMENT'. Accordingly, it stands duly proved that when the cheque in question which is Ex. CW1/1 was presented for encashment, the same was dishonoured vide cheque returning memo which is Ex. CW1/2 with the remarks 'STOP PAYMENT'.
14. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, the the complainant has specifically stated in his 11 pre summoning evidence by way of affidavit which is Ex. CW1/A that he got issued the legal notice of demand dated 27.09.2012 through courier/speed post which are Ex. CW1/4 to Ex. CW1/7 through his counsel and the same has duly been served upon the accused. Legal notice bears the same address which was furnished by the complainant on the complaint and on which the summons were duly served to the accused.
Further there is a presumption u/s 27 General Clauses Act in favour of the complainant that a properly address document sent by Registered Post is deemed to have been delivered if not returned back.
In this case, cheque in question dated 19.09.2012 Ex. CW1/1 got dishonoured vide cheque returning memo dated 22.09.2012 Ex. CW1/2 and the legal notice of demand dated 27.09.2012 Ex. CW1/3 has been duly served upon the accused vide courier/speed post receipt which is Ex. CW1/4 to Ex. CW1/7. It shows that the legal notice of demand has been served upon the accused within the statutory period of 30 days from the receipt of information by the complainant regarding the dishonour of the cheque issued by the accused.
So, in view of the presumption raised u/s 27 General Clauses Act the legal notice Ex.CW1/3 stands served to the accused in view of the fact that in rebuttal no evidence was led by the accused. Further in view of judgment of the Hon'ble Supreme Court of India in case titled as "C.C. Alavi Haji Vs Palapetty Muhammed & Anr." Appeal (Crl.) 767 of 2007 wherein it is held that:
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of rceipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment 12 withing 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act."
15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID CHEQUE In the case in hand, the complainant has deposed in evidence that despite receipt of the legal notice of demand, the accused did not make the payment of the cheque amount in question within 15 days of receipt of legal notice of demand. From the facts on record it is evident that accused has failed to make payment within 15 days of receipt of said legal notice. The cause of action has well arisen in favour of the complainant u/s 138 Negotiable Instruments At when the accused has failed to pay the entire cheque amount within 15 days of the receipt of legal notice of demand.
16. After hearing the final arguments and carefully perusing the record the contention of Ld. Counsel of the accused are dealt below.
17. With respect to preliminary argument raised by Ld. Counsel for the accused that the complainant has not shown any source which could substantiate the fact that he was in possession of Rs. 3 lakh before lending loan to the accused, in response to this contention it is observed that complainant has himself stated that he applied for loan in the month of March, 2012 and further stated th at he advanced the laon to the accused in the month of April from which it can be inferred that 13 complainant was in possession of money at the time of advancing loan to the accused. The contradiction regarding loan given to the accused by the complainant with respect to the time as pointed out by Ld. Counsel for the accused is insignificant as it so happens some time that a person fails to memorize correctly the month in which he advanced loan to another person. On same analogy the contention of the counsel for the accused that the contradiction has arisen after going through the testimony of the complainant and his affidavit, is insignificant and immaterial.
18. With regard to the contention that cheque was filled with two different inks, the same contention is if no use of the accused as it does not matter whether two different inks have been used to fill the cheque. With respect to another contention that the complainant had used illegal means to take cheque from the accused to this effect accused has not brought single piece of evidence to rebut the same.
19. In this case accused did not show that in his account there was sufficient funds to clear the amount of cheque at the time of presentation of the cheque for encasement at the drawer bank and that the "stop payment" notice has been issued because of other valid cause including that there was no debt or liability at the time of presentation of cheque and case u/s 138 NI Act would not be made, however, accused could not show any valid cause for stopping payment. To sum up with in the present complaint, complainant has been successful in proving her case against the accused beyond reasonable doubt. Further accused could not produce any evidence regarding his claim that cheque was stolen from his office in the form of either police report or in any other way.
14 Conclusion
20. Considering the aforesaid discussion, in the light of the fact that accused twice admitted before court that he had signed the cheque and could not bring any evidence in support of his claim that cheque was stolen or misplaced except a bald statement that cheque was stolen or misplaced would be no use of the accused. Further in view of the aforesaid discussion this court is of the considered opinion that the complainant has proved its case against the accused beyond shadow of reasonable doubt. All the ingredients of Section 138 of Negotiable Instruments Act stands satisfied. Accordingly, accused stands convicted of the offence u/s 138 Negotiable Instruments Act.
Copy of this judgment be given to the convict free of cost.
Announced in the Open Court (PANKAJ SHARMA)
today on 21st day of August, 2013 MM : Dwarka : Delhi
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