Delhi District Court
Shiv Kumar Vashisht vs . Govind Singh Soun & Anr. on 18 February, 2014
IN THE COURT OF SH. DHEERAJ MITTAL, MM03 / PHC/NEW DELHI
Shiv Kumar Vashisht Vs. Govind Singh Soun & Anr.
CC No. 118/1/13
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification Number of : 02403R0650762007
the case
2. Name of the complainant : Shiv Kumar Vshisth,
S/o Sh. R.C. Sharma,
R/o CB42, Ring Road, Naraina,
New Delhi - 110028.
3. Name of the accused parentage & : 1. Govind Singh Soun,
residential address S/o Sh. Madan Lal,
R/o A104A, 2nd Floor,
Asha Park, Jail Road, New Delhi
Expired and therefore proceedings
stand abated qua this accused.
2. Anita Soun,
W/o Sh. Govind Singh Soun,
Acquitted.
4. Offence complained of or proved : U/s 138 of Negotiable Instruments
Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final order : Accused Anita Soun is acquitted
7. Date of order : 18.02.2014
Date of Institution : 26.06.2007
Date of Reserving Judgment/Order : 24.01.2014
Date of Pronouncement of Judgment/Order : 18.02.2014
JUDGMENT
Brief reasons for the decision are:
1. This is a complaint filed u/s 138 of Negotiable Instruments Act, 1881 r/w Sec. 142 Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act in short) by the complainant Shiv Kumar Vashisht against the accused no. 1 Govind Singh Soun and accused no. 2 Anita Soun (wife of accused no. 1).
2. Briefly stated facts of the case are that the complainant has alleged that the accused persons took a friendly loan of Rs.5,20,000/ from the complainant and the same was due and payable as on the date as well. The complainant further stated for the discharge of the aforesaid legal liability of the returning of loan amount, the accused persons issued three cheques. All the three cheques got bounced when presented in the bank for encashment. The cheque in question is cheque number 027355 amount of Rs. 1,90,000/ dated 22.02.2007 drawn on Centurion Bank of Punjab Ltd., New Delhi. The complainant served the legal notice upon the accused persons demanding the cheque amount. However, when the accused persons did not pay the same within the stipulated period, the complainant filed the present case against the accused persons.
3. The accused persons were summoned for the offence u/s 138 N.I. Act by the Court vide order dated 07.07.2007. Notice u/s 251 Cr.P.C. was served upon the accused persons, wherein they pleaded not guilty and claimed trial. It is noteworthy that on 25.01.2010, accused no. 1 Govind Singh Soun was examined u/s 294 Cr.P.C, wherein he admitted his signatures on the cheque and also admitted the filling of the amount in that cheque. He further admitted the receiving of legal notice. However, as noted above, since the accused Govind Singh Soun got expired on 16.02.2013 and therefore the proceedings qua this accused stand abated.
The accused no. 2 namely Anita Soun who is the wife of the accused no. 1 Goving Singh Soun was examined u/s 294 Cr.P.C on 25.09.2010, wherein she denied her signatures on the cheque in question. She also denied the receiving of legal notice. It is noteworthy that this accused has taken the defence through out the trial that the cheque in question does not bear her signatures and she did not receive the legal demand notice.
4. The complainant has examined two witnesses i.e complainant himself as CW1 and Sh. Raj Kumar Sharma as CW2. The complainant / CW1 has tendered his evidence by way of affidavit Ex.CW1/1 and relied upon the following documents:
(i) Cheque bearing no. 027355 dated 22.02.2007 amounting Rs. 1,90,000/ drawn on Centurion Bank of Punjab Limited, New Delhi Ex.CW1/A (Cheque in question).
(ii) The counterfoil of the bank deposit slip of the said cheque is Ex.CW1/B.
(iii) Bank returning memo is Ex.CW1/C.
(iv) Copy of legal notice is Ex CW1/D.
(v) Postal dispatch receipts and AD Cards are Ex. CW1/E1, Ex.CW1/E2, Ex.CW1/E3, Ex.CW1/E4, Ex.CW1/F, Ex.CW1/G1 and Ex.CW1/G2.
CW2 Sh. Raj Kumar Sharma deposed that he is the brother of the complainant and in the year 2006, complainant requested to help him by giving Rs. 1,50,000/ as the complainant told him that one of his known person is in the need of money. He further deposed that the complainant returned that money within one or two years. He further deposed that he do not know to whom the complainant has delivered that money and for what purpose. Therefore, from the examinationinchief of this witness, it is clear that CW2 has not deposed anything incriminating against the accused persons.
5. The accused no. 2 Anita Soun did not lead any defence evidence and therefore the matter was fixed for final arguments. I have heard final arguments from both the sides and have carefully gone through the written submissions (including additional arguments / submissions filed by the complainant) and citations filed by the complainant as well as accused. The Counsel for the complainant Sh. D. Hasija submitted that the cheque in question bears two signatures and legal notice was also served upon both the accused persons. He further submitted that debt / liability is not time barred. He further submitted that the accused Anita Soun did not take any steps to prove that the cheque does not bear her signatures. Per contra, Ld. Counsel for the accused Sh. Harish Kumar Mehra submitted that the cheque in question bears only the signatures of the accused no. 1 Govind Singh Soun, who has already been expired and the accused no. 2 Anita Soun is not the signatory of the cheque in question.
Ld. Counsel for the complainant has relied upon the following judgments C.C. Alavi Haji Vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555, Prakash Jewelers Vs. A.K. Jewelers 2002 (99) DLT 244, Rangappa Vs. Sri Mohan (2010) 11 SCC 441, Johnson Scaria Vs. State of Kerala II (2007) BC 450, P. V Constructions Vs. K. J. Augusty 2007 CRI LJ 154, Ajit Vs. Smt. Kirti & Anr. I (2005) BC 315, M. C. Credit Vs. Sreenivassana 2006 (4) KLT 543, Francis Vs. Pradeep 2004 CriLJ 3827 Ramakrishnan Vs. Parthasaradhy, III (2003) BC 241, 2003 (2) KLT 613, A.R.M. Nizmathuallah Vs. Vaduganathan 2008 CriLJ 880, Suresh Kumar Joon Vs. Mool Chand Motors & Ors. CS (OS) 389/2009, A.V Murthy Vs. B.S Nagabasavanna, (2002) 2 SCC 642.
Ld. Counsel for the accused relied upon the following judgments Kumar Exports Vs. Sharma Carpets 2009 II AD (S.C) 117, Punj Lioyd Limited Vs. Corporate Risks India Pvt. Ltd. 2009 II AD (S.C) 124, Devi Vs. Hari Dass 2004 CriLJ 4710 (Kerala High Court), M/s Vijay Polymers Pvt. Ltd. & Anr. Vs. M/s Vinnay Aggarwal DoD 21.04.2009 Delhi High Court, Sama Dharman Vs. S. Natarajan DoD 25.07.2012 Madras High Court.
6. It is settled proposition of law that the presumption u/s 139 N.I. Act raises only when the signatures on the cheque are admitted by the accused. If the accused disputes his signatures on the cheque, the burden lies upon the complainant to prove the same that the cheque was signed by the accused ( see judgment of Hon'ble Supreme Court in Rangappa Vs. Sri Mohan (2010) 11 SCC 441). To prove the offence punishable u/s 138 N.I. Act, the first ingredient which has to be proved is that the cheque in question bears the signatures of the accused or the accused is the drawer of the cheque in question. When the accused disputes his signatures on the cheque, it becomes the duty of the complainant to prove that the accused is the drawer of the cheque. It is a matter of record that in this case, the complainant has failed to bring on record any such evidence which could show that the cheque in question bears the signatures of accused Anita Soun. The complainant did not bother to examine any witness / he did not bring on record any evidence on record to prove the fact that the cheque also bears the signatures of accused Anita Soun. The complainant voluntarily closed his evidence by his separate statement on 03.06.2013. Statement of the accused Anita Soun u/s 313 Cr.P.C was recorded, wherein all the incriminating evidence was put to her. In that statement also, the accused took the defence that the cheque does not bear her signature.
7. It is very important to note that even during his crossexamination as CW1, the complainant has stated that he does not know whether the cheque in question is signed by the accused Anita Soun or not. This was answer of the witness to a specific question put to the witness by the Counsel for the accused to the effect that the cheque is not signed by the accused no. 2 Anita Soun. Therefore, this reply of the witness shows that he himself is not clear about the fact that if the cheque was signed by the accused Anita Soun or not.
8. In view of the aforesaid discussion, it is clear that the complainant has failed to prove that the cheque in question bears the signatures of the accused no. 2 Anita Soun. Therefore, it may be said that the complainant has failed to prove the first ingredient of the offence of section 138 N.I. Act which says that the accused should be the drawer of the cheque. Hence, the complainant has failed to prove that the cheque was signed by the accused Anita Soun and therefore, he has failed to prove the commission of offence of section 138 N.I. Act by this accused. In view of the aforesaid, the accused no. 2 Anita Soun is acquitted of the offence of section 138 N.I. Act. For the sake of clarifications, it is mentioned that the proceedings against the accused no. 1 Govind Singh Soun have already been abated due to his death.
Pronounced in the open court (Dheeraj Mittal) on 18.02.2014 MM03/ PHC/ NDD/ New Delhi