Delhi District Court
Complainant vs H M Singh on 30 October, 2007
-1- IN THE COURT OF Sh. DEVENDER KUMAR, M.M, KARKARDOMA COURT, DELHI COMPLAINT NO. 1539 OF 2004 IN THE MATTER OF:
M/S AMERICAN EXPRESS BANK LTD. A COMPANY INCORPORATED UNDER, THE LAW OF CONECTICUT UNITED STATES OF AMERICA, HAVING ITS PLACE OF BUSINESS INTERALIA HAVING ITS TRAVEL RELATED SERVICES OFFICE AT:
BLOCK A, HAMILTON HOUSE, CONNAUGHT PLACE, NEW DELHI -110 001 THROUGH ITS AUTHORISED SIGNATORY MR. DINESH BILANEY/SANDEEP NIGAM .....Complainant VERSUS H M SINGH B 406 KENDRIYA VIHAR SECTOR 51, NOIDA, .......Accused IN THE MATTER OF:-
A CRIMINAL COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT OF 1881 READ WITH PROVISIONS OF CHAPTER XV OF CRIMINAL PROCEDURE CODE, 1973 AND ALSO READ WITH SECTION 420 OF THE INDIAN PENAL CODE.-2-
JUDGEMENT Date of Institution : 14/09/2004
Date of Final Arguments : 30/10/2007
Date of Judgement :30/10/2007
Vide this judgement I shall dispose off a criminal complaint U/s 138 of Negotiable Instruments Act, filed by the complainant against accused. The brief facts of the case are as under:
That the complainant has alleged against the accused that the accused approached to the complainant bank for seeking credit card facility and the complainant advanced the facility to the accused in discharge of liability, the accused issued the cheque in favour of the complainant. It is further alleged that the cheque issued by the accused was dishonoured on presentation on account of insufficient funds and the complainant got served a legal notice thereby demanding the cheques amount, but the accused failed to make the payment within 15 days from the receipt of the legal notice hence present complaint.
Accused appeared before this court and notice u/s 251 CRPC against the offence under 138 NI Act was framed against the accused and the accused pleaded not guilty and claimed trial.
To prove the complaint, the complainant has examined CW1 Sh. Sandeep Nigam, who has proved his Power of Attorney as Ex. CW1/A. It is further deposed that the accused has availed a credit card facility from the complainant and in discharge of his liability issued cheuqe CW1/B, and the same was dishonoured vide memo Ex. CW1/C. It is further deposed that complainant got served a Legal Notice Ex. CW1/D through Postal receipts Ex. CW1/E, but the accused has failed to make the payment within stipulated period.
CW1 has been cross examined by the counsel for the accused and during examination, CW has admitted that the cheque is for Rs. 8000/- and the bank has received Rs. 12500/- vide various receipts. It is disputed by the CW that the amount included bounce cheque. It is further deposed that only one complaint against the dishonour of the cheque of Rs. 8000/- has been -3- filed by the complainant and the receipts by which the payment has been made by the accused are Ex. CW1/D1 to Ex CW1/D5 and letter is Ex. CW1/D6. It is further deposed that the bank does not mention cheque no. on any receipt, but the agency usually mention the cheque no. without the knowledge of the bank.
Statement of the accused has been recorded U/s 281 Cr. P.C and during statement of accused, the accused has claimed that he has cleared the dues including the cheque amount. The accused has pleaded that the agents of the complainant harassed him and used influence to get the amount in the odd hours. It is further pleaded that the cheque has been dishonoured being without account no. and the account number mentioned on the cheque is not the actual account number of the accused, due to, it is not a case U/s 138 NI Act. However, accused has admitted that he was not maintaining sufficient funds in his account on the date of presentation of cheuqe. Receipt of legal notice has been admitted by the accused.
The accused has examined himself as DW1 who has admitted that the cheque Ex. CW1/B pertains to him and bears his signature. It is further deposed that he does not know whether cheque Ex. CW1/B has been honoured or not. Legal notice Ex. CW1/D has been admitted by the accused and it is further admitted that he did not make the payment of cheque amount within 15 days from the receipt of legal notice. It is further deposed that the matter was settled with the agent of the complainant but there is no letter regarding settlement.
I have heard the arguments and perused the record. The perusal of the case shows that the accused has taken two fold defences. The first defence is that he has already made the payment of the cheque amount and the other one is that his cheque was never dishonoured. I am taking up the first defence raised by the accused that he has made the payment of the cheque amount. The cheque has been admittedly issued by the accused, but the accused has shown his ignorance about the dishonour of the cheque. Accused has not denied the dishonour of the cheque Ex. CW1/B. The accused has admitted during his evidence that the cheque Ex. CW1/B pertains to him and bears his signature, but he has disputed that he did not mention the account number and the cheque was presented with the wrong -4- account number. The plea taken by the accused is not sustainable as the cheque has been dishonoured with reason "insufficient funds" and the ground taken by the accused has not been mentioned in the bank memo. Though the bank memo is not bearing signature of any one and accused has shown his ignorance about dishonour of the cheque yet it had come into the knowledge of the accused that the cheque issued by him has been dishonoured, when he received the legal notice. But the accused has not taken any action against the bank and even paid amount of Rs. 5000/- in cash to the bank and further issued a cheque of Rs. 10,000/- which was again dishonoured on presentation. The plea taken by the accused is contradictory in itself as on the one hand, accused is claiming that the cheque was never dishonoured whereas, on the other hand, accused is making payment of the dishonoured cheque. The conduct of the accused clearly suggests that he was having full knowledge about the issuance and dishonour of the cheque.
So far the unsigned bank memo Ex. CW1/C is concerned, it is just a procedural irregularity otherwise, the cheque was dishonoured for insufficient funds and it has been admitted by the accused that he was not maintaining sufficient amount in his account when the cheque was dishonoured. The defence of the accused is not sustainable.
Even otherwise, the presumption U/s 146 NI Act is in favour of the complainant and burden to rebut the presumption was on the accused, but the accused has not examined any witness from any bank to prove that the wrong account number was mentioned on the cheque or the cheque was not dishonoured. The accused has failed to rebut the presumption accordingly, he has failed to prove that the cheque was not dishonoured.
So far the other defence regarding making of payment of the cheque amount by the accused is concerned, the accused has taken this plea that he has already made the payment of the cheque amount and despite making this plea, the accused has admitted during his evidence that he had not paid a sum of Rs. 8000/- within 15 days from the receipt of legal notice which is Ex. CW1/C. By this admission, it is clear that the accused did not make the payment of the cheque amount within stipulated period accordingly, this defence is not sustainable. Even otherwise, the accused has himself admitted that he has made the payment of Rs. 5000/- and issued a cheque of Rs. 10000/- against the outstanding amount, but the cheque was -5- dishonoured later on . It suggests that only payment of Rs. 5000/- was made by the accused after dishonour of the cheque and balance payment remained unpaid.
Keeping in view the facts and circumstances of the case, I am of the considered opinion that the accused has failed to prove its defence whereas, the complainant has proved that the accused had issued the cheque in discharge of his liability and the same was dishonoured for insufficient funds and accused has failed to make the payment within stipulated period despite receipt of legal notice. The accused is liable for the offence accordingly, he is convicted for the offence U/s 138 NI Act.
Announced in the open Court.
30/10/2007 (Devender Kumar) MM, KKD Delhi