Delhi District Court
Court, In Case Titled As Rajesh Aggarwal vs State & Anr. 2010, Vii Ad, (Delhi) 576. on 22 February, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. 02404R0076812010
CC No. 13791/1/10
Mrs. Dropdi
W/o Sh. Chander Kumar
R/o AF72A, Janta Flats
Shalimar Bagh, New Delhi88. ............Complainant
V/s
Ms. Ram Dulari
W/o Late Sh. Arjun Prasad
R/o AF108B, Janta Flats,
Shalimar Bagh, New Delhi88 ...............Accused No. 1
Sh. Raj Kumar
S/o Sh. Arjun Prasad
R/o AF108B, Janta Flats,
Shalimar Bagh, New Delhi88 ...............Accused No. 2
JUDGMENT
(1)Name of complainant Mrs. Dropdi
and address W/o Sh. Chander Kumar
R/o AF72A, Janta Flats
Shalimar Bagh, New Delhi88
(2) Name of accused no. 1, Ms. Ram Dulari
parentage and address W/o Late Sh. Arjun Prasad,
R/o AF108B, Janta Flats,
Shalimar Bagh, New Delhi88
Name of accused no. 2, Sh. Raj Kumar
parentage and address S/o Sh. Arjun Prasad
R/o AF108B, Janta Flats,
Shalimar Bagh, New Delhi88
(3) Offence complained of or proved: Under Section 138 Negotiable
Instrument Act
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(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 05.04.2010
(6) Date of reserve of order: 16.02.2013
(7) Final order: Conviction
8) Date of Final Order 22.02.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
The present complaint is filed Under Section 138 of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act').
Brief facts of the complaint that accused persons are well known to the complainant. Both the accused borrowed a friendly loan of Rs. 70,000/ without interest, from the complainant on 5th May 2009 as they were in need of money for their personal use and promised to repay the same to the complainant within a period of six months but the accused failed to make the repayment of the said loan amount to the complainant within time. Complainant again and again approached the accused persons and requested them to make the payment of the loan amount and thereafter admitting their liability, accused persons issued a cheque bearing no. 287895 dated 03.03.2010 for Rs. 70,000/ drawn on Oriental Bank of Commerce, E/C, Prabhu Dayal Public School, Shalimar Bagh, Delhi, but when the complainant presented the said cheque for encashment, the same was returned back as unpaid with remarks "Account Closed" vide cheque return memo dated 04.03.2010. Thereafter complainant sent a legal notice on 15.03.2010 to the accused persons for demanding cheque amount and despite receipt of the said legal notice, they did not pay the cheque amount and finally, complainant has filed the present complaint with the submission that accused be summoned, trial and punished according to law.
2/9In his pre summoning evidence complainant has examined himself on affidavit as Ex. CW1/A. Complainant reiterated the contents of his complaint and placed on record original cheque bearing no. 287895 dated 03.03.2010 amounting to Rs. 70,000/ Ex.CW1/1, drawn on Oriental Bank of Commerce, Delhi, original cheque returning memo dated 04.03.2010 Ex.CW1/2, wherein it has been stated that cheque in question was dishonoured due to "Account Closed", legal demand notice dated 15.03.2010 Ex.CW1/3, postal receipt Ex.CW1/4, reply to the legal notice dated 22.03.2010 Ex.CW1/5.
Thereafter, accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon her to which the accused pleaded not guilty and claimed trial. Accused has stated in his Notice that:
"The cheque in question pertains to our joint bank account. It bears our signatures. The particulars i.e, name of the complainant, date and amount has not been filled in by us. We have lost the cheque in question and had lodged a complaint in this regard with PS Shalimar Bagh and thereafter, I instructed my banker to close our bank account. The cheque in question is being misused by the complainant".
Presummoning evidence of the complainant was treated as post notice complainant evidence as per the guidelines laid down by Hon'ble Delhi High Court, in case titled as Rajesh Aggarwal vs State & Anr. 2010, VII AD, (Delhi) 576.
Pursuant to allowance of application u/s 145 (2) NI Act, the complainant was recalled for crossexamination. Accused could not demolish the stand of the complainant in his cross examination.
Complainant has also examined CW2 Sh. Sushil and CW3 Ms. Sarita Motiyani in his complainant evidence.
3/9CW2 Sh. Sushil, Peon, Oriental Bank of commerce, has placed on record the document pertaining to saving account no. 004971 of accused Ram Dulari which is Ex.CW2/1 and letter written by accused no. 1 & 2 for closing the said account which is Ex.CW2/2.
CW3 Ms. Sarita Motiyani D/o Sh. Chander Kumar has deposed that she is the daughter of complainant Dropdi and accused persons approached her mother for taking a friendly loan of Rs. 70,000/. When they approached the accused persons for repayment of said loan amount, the daughter in law of accused no. 1 Indu started to argue with her and her mother. Then she called at no. 100 and police came but no action has been taken by the police. Copy of DD no. 18A & 21 A is placed on record which is Ex.CW3/1. She further deposed that both the accused issued a cheque of Rs. 70,000/ to the complainant and when the cheque was presented for encashment, the same was dishonoured with the remarks that the bank account has already been closed.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.4/9
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118
(a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] " Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such 5/9 evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating circumstances were put to the accused wherein accused persons have stated that:
"We have not taken any loan. We have not issued any cheque. Our cheques were misplaced and a complaint was made to PS Shalimar Bagh. We do not know anything about it as our cheque was misplaced. We have received the legal notice and replied".
Accused persons have not examined any witness in their defence evidence.
6/9Hence, DE was closed.
Oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
Ld. counsel for accused has also relied upon the judgment of Bombay High court titled as Santosh Manikrao Gundale Vs. Rameshwar Wamanroa Tak & Another.
Ld. counsel for complainant has stated in the oral arguments that complainant and accused persons are the neighbours and complainant gave a loan of Rs. 70,000/ to the accused persons wherein Ld. counsel for accused persons has stated that complainant does not have capacity to give loan and there is no requirement of loan as accused persons are financially sound.
The only defence taken by accused persons is that they were carrying cheque book containing blank signed cheques for buying vehicle from financial company and they had lost their cheque book. Regarding this, they have lodged a complaint in the PS Shalimar Bagh which is Ex.DW1/2. It is pertinent to mention here that the complaint regarding lost of cheque book in PS Shalimar Bagh has lodged on 29.01.2010 but accused persons have already got closed their account on 21.01.2010 as per the statement of bank witness CW2 Sh. Sushil. Furthermore, CW2 Sh. Suhil has also placed on record the request letter Ex.CW2/2 for closing their joint account given by accused persons to the bank and on the said letter, it has been mentioned that no cheque book is lying with them as all are being exhausted. As per the letter written to the bank as no cheque book was with the accused persons, no question of cheque book being misplaced arises.
Accused persons have aldo admitted in their notice U/S 251 Cr.P.C. that the cheque in question bears their signatures. Reference has been made to Judgment of Apex Court in Rangappa vs Sri Mohan, AIR 2010 SC 1898 that, "Once the cheque relates to the account of the accused and he accepts and 7/9 admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a 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 way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act".
After perusal of entire record and in view of the above, this court of the considered opinion that both the accused persons have not rebutted the presumption in favour of complainant. Therefore, complainant has proved his case beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
As the complainant has proved its case beyond reasonable doubt, therefore, 8/9 accused is being covicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
Announced in the open court (SHEFALI BARNALA TANDON) today on 22.02.2013 MM / ROHINI COURTS / DELHI 9/9 IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI. Unique ID No. 02404R0240542010 CC No. 13791/1/10 Smt. Dropadi Vs. Ram Dulari & another U/s. 138 Negotiable Instrument Act 25.02.13 ORDER ON SENTENCE Present: Complainant with Ld. counsel Sh. Vikrant Arora. Convict with Ld. counsel Sh. Manoj Kumar Nigam.
Arguments heard on the point on sentence. It is stated by the counsel for the convicts that convict no. 1 is in old age lady of 70 years and she has never been previously involved in any criminal matter and she is first time offender. Therefore lenient view may be taken. Submissions on behalf of convict no. 2 has been laid that he has family consisting of his wife and three children and he is also first time offender. Therefore lenient view may be taken.
Ld. Counsel for complainant has submitted that the matter pertains to the year 2010 and relates to loan transacton of Rs. 70,000/ was involved in the matter and the accused has defrauded the complainant as a complainant is a female of 58 years of age and there is no male member in the family of complainant, therefore maximum punishment may be given to both the convicts.
I have heard the submissions and carefully perused the record. Complainant regarding present cheques in question is pending since 2010 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2010 and cheque bouncing cases are on high rises in the society. Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of 10/9 Rs. 1,00,000/ (Rs. One Lakh Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 3 months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of both the convicts for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convicts to file an appeal against the order and till then convicts are admitted on bail on furnishing of personal bond of Rs. 10,000/ with surety of like amount. Fresh bail bonds furnished on behalf of both the convicts and accepted till 25.03.13.
Copy of this order be given to the convicts free of cost.
Bail bonds be put up on 25.03.2013.
File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon)
court on 25.02.13 MM (N/W)/Rohini Courts, Delhi.
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