Delhi District Court
Cc No.93/11 Inder Raj Grover vs . Satish Changra Page No. 1 Of Pages 18 on 14 January, 2013
CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 1 of Pages 18
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 93/11
Unique ID No. 02402R0220842011
PS. Anand Vihar
Sh. Inder Raj Grover,
S/o Late Sh. Malik Chand,
R/o 1039, Sector16,
Faridabad (Haryana) ......... Complainant.
Versus
Sh. Satish Chand Changra,
S/o Late Sh. Ami Chand,
R/o 108A, PocketA2,
Mayur Vihar Phase3,
Delhi96. ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 21.07.2011
Plea of Accused : Not guilty
Complaint filed on : 26.07.2011
Final Arguments heard & Concluded on : 18.12.2012
Date of decision of the case : 14.01.2013
Final order : Convicted
CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 2 of Pages 18
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Sh. Inder Raj Grover, against the accused Satish Changra.
2. The facts in brief necessary for the disposal of the present case are that the accused borrowed a personal loan of Rs. 3,00,000/ from the complainant. Towards discharge of the said loan, the accused issued a cheque bearing no. 228846 dated 15.05.2011 for the sum of Rs. 3,00,000/ drawn on Vijaya Bank, Vigyan Vihar, Delhi branch to the complainant but on presentation the said cheque was returned back dishonored with the remark "ACCOUNT INOPERATED" vide dishonour memo dated 21.06.2011. Thereafter a legal notice was sent to the accused on 27.06.2011 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit 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 05.08.2011 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 19.12.2011 was framed upon the accused to which he pleaded not guilty and claimed CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 3 of Pages 18 trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited original cheque bearing No. 228846 as Ex. CW1/1, the cheque returning memo is Ex. CW1/2, the legal notice of demand dated 27.06.2011 is exhibited as Ex. CW1/3, The original receipts of registered post is Ex. CW1/4 and AD card as Ex. CW1/5. During cross examination CW1 also exhibited his passbook as Ex. CW1/X1. CW1 again reexamined himself U/s 311 Cr. PC and had exhibited postal receipt of the legal notice as Ex. CW1/7 and the speed post delivery report of postal receipt dated 04.07.2011 as Ex.CW1/8 (collectively for 03 pages), Sh. Kishan Pal, Clerk from Vijaya Bank, Vigyan Vihar examined himself as CW2. He has brought the Statement of account of the accused for the period from 10.03.2006 to 04.08.2007 as Ex. CW2/1. Thereafter, the complainant evidence was closed at request.
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 his statement accused stated that he had never taken any loan from the complainant, Infact he did not know the complainant prior to his appearance in the present case. It is further stated by him that CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 4 of Pages 18 the cheque in question was given by him to one Mr. Sahab Singh in year 2006 in blank signed condition for getting some loan arranged to him. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1. During his cross examination he exhibited a letter written by the accused to Maa Jhandewali Cooperative Society for return of LIC bond and NOC as Ex. DW1/1 and a letter written by Administrative office CPCB to the accused as Ex. DW1/2. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a 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 cheque was presented for encashment, CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 5 of Pages 18 the same was 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 Negotiable Instruments Act.
8. 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.
WHETHER THE CHEQUE WAS ISSUED OR NOT:
9. CW1 has stated in his examine in chief that cheque in question was issued by the accused. In his statement under section 313 Cr.P.C, it was accepted by the accused that the cheque in question bears his signature, however he denied the issuance of the cheque in favour of the complainant. It was submitted by the accused that the cheque in question was given by him to his friend Late Sh. Sahab Singh for getting a loan in blank signed condition. However, the accused failed to prove on record the fact that the cheque in question was given by him to Mr. Sahab Singh as Mr. Sahab Singh had already expired and no document has been produced by the accused to shown that the CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 6 of Pages 18 cheque in question was given by him to Mr. Sahab Singh. Further the legal position in respect to the blank signed cheques is as under:
10. In Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the name of payee there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date.
11. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only. "
12. In Ravi Chopra v. State & another (2008 (2) LRC 118 del) it was held by the Hon'ble high court that "it is possible for drawer of a cheque to give a blank cheque signed by him to the payee and consent either implidely or expressly to the said cheque being filed by the payee at a subsequent point of time".
13. Similarly it was held by the Kerala High Court in lillykutty v. lawrence (2004 (1) JCC (NI) 14), that there is no rule in banking business that payee's name and the amount should be written by drawer himself. Further the burden is on the accused to establish that the date, amount and payee's name are written by somebody else without the knowledge and consent of the drawer. Further in Vijender Singh V. Eicher Motors Ltd. CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 7 of Pages 18 & Anr decided on 05.05.2011 it was held by High Court of Delhi that a person issuing a blank cheque is supposed to understand the consequences of doing so. He can not escape his liability only on the ground that blank cheques had been issued.
14. From the above stated cases it is clear that in a case where cheque is handed over without filling the name of the payee or other particulars, it is upon accused to prove by positive evidence that he/she did not give implied or express consent to the complainant to fill in the name of the payee and the other particulars. However in the present case no such cogent evidence have been adduced by the accused.
15. In view of the aforesaid discussion and the evidence on record it stands proved that the cheque in question was issued by the accused.
WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
16. It is submitted by the CW1 that at the request of the accused he gave a personal loan of Rs.3,00,000/ to the accused. Towards discharge of the said loan, the accused issued a cheque bearing no. 228846 dated 15.05.2011 for the sum of Rs. 3,00,000/ drawn on Vijaya Bank, Vigyan Vihar, Delhi branch which is Ex. CW1/1 for the repayment of the loan.
17. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 8 of Pages 18 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.
18. 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 of his debt or liability.
19. 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 Instruments Act.
20. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 9 of Pages 18 under which the cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
21. Similarly in the present case it was for the accused to prove why he did not write a letter to the complainant or the said Mr. Sahab Singh for return of the cheque in question. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a transaction he could not have rebutted the presumption u/s 139 NI Act. It was for the accused to have protested and asked the complainant or Mr. Sahab Singh to return the cheque and if still cheque was not returned he would have served a notice as complainant.
22. Therefore after the establishment of the fact that the cheque was issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence and not by mere plea taken in the statement of CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 10 of Pages 18 the accused recorded under section 313 r.w section 281 of Cr.P.C. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in Birender Singh V. state (NCT of Delhi) 2008(1)JCC (NI) 15).
23. In a similar case, Jose Vs. P.C. Joy 2008 (4) RCR (Crl) 251( Kerala HC), it was submitted by the accused that the cheque in question was given by the accused to the complainant as a security. Though the liability was settled as evidenced by Ex. D1 & Ex. D1(a) the cheque was not returned, inspite of requests. Therefore a stop memo was issued to the bank by the accused. He also gave a criminal complaint against the complainant which was taken on file as C.M.P 281/01 ( Ex. D2).
24. On these cogent evidences and the fact of issuing stop memo to the bank and filling a criminal complaint against the complainant the presumption under NI Act stood rebutted. However in the present case there is no cogent evidence whatsoever has been adduced by the accused to support his plea that the cheque in question was given in blank signed condition to said Late Mr. Sahab Singh. No letter has been written by the accused to his banker. He has not taken any other legal remedy against complainant or said Late Mr. Sahab Singh. Infact the defence of the accused is not reliable as in his application U/s 145(2) NI Act it was submitted on behalf of the accused that the cheque in question was given as security to Late Sh. Sahab Singh in the year 2009, however, during the cross examination of CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 11 of Pages 18 the complainant suggestion was given to him that the cheque in question was given by the accused to Late Sh. Sahab Singh in the year 2007, and again in the statement of accused U/s 313 & 315 Cr. PC it was submitted that the cheque in question was given in blank signed condition to Late Sh. Sahab Singh in the year 2006. due to above stated shifting stands the defence of the accused does not inspire confidence as he himself not confirmed as to whether the cheque in question was given to said Late Sh. Sahab Singh in the year 2009 or 2007 or year 2006. Furthermore in his statement U/s 315 Cr. PC it was submitted by the accused that even after taking the blank signed cheque when Mr. Sahab Singh could not arranged the loan I requested him to return my cheque but he postponed the same on one pretext to another, however, later on it is submitted by the accused that in the year 2007 Mr. Sahab Singh had got arranged a loan for him from Maa Jhandewalan Cooperative Society. From these facts it appears that the defence of the accused has no legs as at one hand he says that Sahab Singh failed to got arranged the loan and on the other hand he says that after handingover the blank signed cheque & affidavit in the year 2006, Late Mr. Sahab Singh had arranged a loan in the year 2007. In either situation whether after taking that cheque as security Mr. Sahab Singh had failed to arranged any loan or even if he got arranged the loan from Maa Jhandewalan Cooperative Society what was the need for the accused to left his blank signed security cheque with Mr. Sahab Singh till the mid of year CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 12 of Pages 18 2011 when said Mr. Sahab Singh expired. Thus this bald plea of the accused having not been substantiated by any cogent, convincing and clear evidence would not be sufficient to rebut the presumption of law.
25. The Ld. Defence counsel had argued that in the complaint the complainant did not mentioned the date on which he gave the loan to the accused or when the cheque was handed over to him by the accused and its only at the stage of cross examination it was submitted by the complainant that the loan was given in the month of May or June 2009. It is also argued that complainant has not shown the loan given to the accused in his Income tax return. It is also argued that complainant has not brought his son to be examine to prove that any money was taken by him from his son to be given to the accused. These contentions are not significant enough to rebut the statutory presumption arisen in favor of the complainant. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favor of the complainant and the same can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. A fact is said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. With respect to contention of the counsel for the accused that the complainant has not shown the CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 13 of Pages 18 loan advanced in his Income Tax Return, following observation of the Hon'ble Calcutta High Court in a case cited as 2006(4)CCC 521 (cal) are relevant, that it is income tax authority who may take action against the complainant, if the complainant did not furnish return properly before the income tax authorities showing correct income and expenditure. Merely for the failure to produce income tax papers by the complainant in the trial, the right of complainant to initiate a proceeding under section 138 NI Act for dishonoure of cheque cannot be curtailed.
26. The counsel for the accused cited the decision of the Supreme court in his favour titled as Krishna Janardhan Bhat v. Dattataraya G. Hegde (2008) 4 SCC 54, however the ratio of this case that existence of legally recoverable debt is not a matter of presumption under section 139 of the NI Act, has been overruled by the Hon'ble Supreme Court itself in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench Judgement) where in it was held:
We are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.
27. Thus from the above stated discussion it is clear that the CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 14 of Pages 18 accused has failed to rebut the presumptions U/s 118 (b) and 139 of Negotiable Instruments Act.
28. Considering the entire evidence on record, it stands duly proved that the cheque in question which is CW1/1 was issued and drawn in discharge of legal liability of the accused and for consideration.
WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY AND DISHONOR OF THE SAME DUE TO PAYMENT STOPPED:
29. Perusal of the record reveals that the cheque in question which is Ex. CW1/1 is dated 15.05.2011, was got dishonoured due to the reason "Account Inoperative" vide cheque returning memo which is Ex. CW1/2 dated 21.06.2011 which clearly shows that the cheque has been presented and dishonored due to the reason "Account Inoperative" within period of its validity i.e. within six months from the date of the cheque. The accused has not objected to or denied these facts.
SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
30. CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 27.06.2011 which is Ex. CW1/3 and it was sent to the accused on the same day (within 30 days of knowledge of dishonour of cheque) vide Registered Post by postal slip bearing no. ED303824985IN dated 05.07.2011 which is Ex. CW1/4 issued CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 15 of Pages 18 from Karkardooma Courts and postal slip bearing no. EH293970059IN issued from Sector 16A, Faridabad as Ex. CW1/7 dated 04.07.2011. Delivery report with respect to postal slip EH293970059IN is exhibited as Ex. CW1/8 as per which the letter was delivered on 06.07.2011. The legal notice was sent to the accused at his address i.e. Central Pollution Control Board, Near Karkardooma Courts, Delhi32.
31. The accused has denied the receipt of legal notice. However the address mentioned on the postal receipts and legal notice is the same on which the summons was sent consequent to which accused marked his appearance before the Court and admittedly this is the address on which the accused is employed. Thus it stands proved that the notice was sent at the correct address of the accused.
32. In K.Bhaskaran v. Sankaran Vaidhyan Balan AIR 1999 SC 3762, it was held by the Apex court that:
33. "No doubt Section 138 of the Act require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can be profitably be imported in a case whee the sender has dispatched the notice by post with the correct address written on it then can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position, as the drawer of the cheque who is liable to pay the CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 16 of Pages 18 amount would resort to the strategy of subterfuge by successfully avoiding the notice".
34. The above stated position was again reiterated by the Apex court in C.C. Alavi Haji v. Palapetty Muhammed's case where apex court further held:
35. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt 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 within 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.
36. In the present case the legal notice was dispatched at the correct address. Further the delivery report duly attested by up Prabhandhak of Customer Services, Speed Post Centre shows that the legal notice was duly delivered. It was argued on behalf CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 17 of Pages 18 of the accused that the enrolment number of the Counsel from whom the legal notice was got issued by the complainant is not mentioned on the legal notice, hence, this legal notice is fake. It is to be made clear that a legal notice U/s 138 NI Act is to be sent by the complainant to the accused for demanding his money and its not compulsory that the same has to be issued by any Advocate. Therefore it can be safely deemed that legal notice was duly served upon the accused.
THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE:
37. CW1 has deposed in his examination in chief that despite service of legal notice of demand accused has failed to pay the cheque amount to the complainant. Accused has submitted in his statement under Section 313 Cr.P.C that he did not received the legal notice and there was no question of making any payment to the complainant in respect of the cheque in question as he was not legally liable to pay in respect of the cheque in question. Therefore this fact also stands proved.
38. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Satish Chand Changra, S/o Late Sh. Ami Chand, R/o 108A, PocketA2, Mayur Vihar CC No.93/11 INDER RAJ GROVER Vs. SATISH CHANGRA page no. 18 of Pages 18 Phase3, Delhi96 stands Convicted of the offence u/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the open court today i.e. 14.01.2013 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:14.01.2013 Containing 18 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:14.01.2013