Delhi District Court
Titled As "Hiten P Dalal vs . Bratindranath Banerjee 2001(3) C.C. ... on 1 April, 2008
1
IN THE COURT OF SH VIKAS DHULL, M.M., DELHI
a) Complaint case no. : 1009/7
b) Date of the commission of 5-1-04
the offence :
c) Name of the complainant : M/s Shiva Fabrics through its proprietor Mr.
Rakesh Bansal s/o Shri S.L. Bansal X/4000, Gali
No.14, Shanti Mohalla, Gandhi Nagar, Delhi-31.
d) Name of the accused, and his M/s Deep Enterprises 2. Shri Umesh Jain,
parentage & residence : authorized signatory M/s Deep Enterprises
X/3632, Main Road, Shanti Mohalla, Gandhi
Nagar, Delhi-31. 3. Smt. Rukmani Devi,
Proprietor, M/s Deep Enterprises, X/3632, Main
Road, Shanti Mohalla, Gandhi Nagar, Delhi-31
e) Offence complained
of or proved : U/s 138 of the Negotiable
Instruments Act 1881 and u/s 415/417 and 420
IPC.
f) Plea of the accused : Pleaded not guilty. Examined U/s 313 Cr.P.C.
wherein accused submitted that cheque in question
was lost.
(g) Date of Institution : 7-1-04
(h) The date on which : 3-3-08
judgment was reserved
(i) The final order : Convicted
(j) The date of such order : 01/04/08
JUDGME NT
1.The prosecution story in brief is that the accused No.2 and 3 purchased goods of Rs. 48,750/- from the complainant and issued a post dated cheque bearing No.757565 dt. 15-12-03 for the said amount. On presentation of cheque on 14-12-03, the same was 2 returned unpaid on 17-12-03. It is alleged that the complainant made demand of Rs. 48,750/- by giving legal/ demand notice dt. 18-12-03 but the accused failed to make the payment within the stipulated period of 15 days. Hence, the present complaint.
2. After considering the material on record my Ld. Predecessor has summoned the accused only U/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Act).
3. Accused was served and appeared in the court. Thereafter a notice U/s 251 Cr.P.C. was framed against the accused no.2 only to which accused pleaded not guilty and claimed trial. The accused no.3 was dropped from proceedings as she was not signatory of cheque in question.
4. Thereafter the matter was posted for Prosecution Evidence and the Prosecution has examined three witnesses.
5. CW1 Sh. Rakesh Bansal has deposed on oath by way of affidavit the facts as mentioned in the complaint and proved the bill no.415 dt. 28-11-03 for Rs. 48,750/- and cheque bearing no.757565 dt. 15-12-03 for Rs. 48,750/- as Ex.CW1/A and Ex.CW1/B respectively. He proved returning memo Ex.CW1/C and carbon copy of legal/demand notice Ex.CW1/D, AD Ex.CW1/E and F, UPC Ex.CW1/G, AD card Ex.CW1/H, copy of reply of accused persons as Ex.CW1/I. He deposed that accused failed to make payment within stipulated period of 15 days and on the other hand filed false complaint before police post after receipt of notice. However, CW1 approached the association the copy of the same is Ex.CW1/J and judgment by association is Ex.CW1/K.
6. In his cross-examination CW1 denied that he had misused the cheque Ex.CW1/B or that there was no liability of the cheque in question or that no goods were supplied by the accused to him.
7. CW2 Shri Pankaj Jain proved statement of account of the bank as Ex.CW2/A and 3 cheque returning record Ex.CW2/B.
8. In his cross examination, he stated that signature on Ex.CW2/A at point A was put by the bank manager in his presence.
9. CW3 Shri D.P. Gupta proved certified copy of statement of account Ex.CW3/A and cheque returning record in two pages Ex.CW3/B.
10.In his cross examination, he stated that he had not mentioned any date on the document and he had only put his signature.
11.No other witness has been examined by the Prosecution and accordingly the Prosecution Evidence was closed.
12.The accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record has been put to him.
13.In his examination the accused denied that cheque Ex.CW1/B was issued to the complainant to discharge the liability of bill Ex.CW1/A. However, accused submits that he has given a complaint regarding misplacement of cheque to chowki P.S Seelampur and he had also written a letter to his bank for stop payment on 18-12-03. Accused further submitted that he would lead defence evidence.
14.Thereafter, the matter was posted for Defence Evidence and accused has examined 02 witnesses.
15.DW1 Sh. Umesh Jain filed his evidence by way of affidavit Ex.DW1/A and deposed that cheque Ex.CW1/B was lost by his brother Neeraj Jain.
16.In his cross-examination DW1 denied that he had issued the cheque against the supply of goods by the complainant and the same was not lost by Neeraj Jain. DW1 further deposed that cheque was issued for a party which was unknown to him and with that 4
17.party there was no transaction.
18.DW2 Sh. Niraj Jain also tendered his examination in chief by way of affidavit Ex.DW1/X and deposed that cheque was lost by him and there was no liability towards complainant.
19.In his cross-examination DW2 denied that no cheque was lost by him and denied the same was issued by the accused to discharge his liability towards the complainant and denied that he was deposing falsely. He further deposed that cheque was issued for a party of Chandni Chowk against purchase of cloth.
20.No other witness was examined by defence and Defence Evidence was closed and the matter was posted for final arguments.
21.I have heard the counsel for complainant and the counsel for accused and have perused the material on record and the judgments relied upon by both the parties. For prosecution U/s 138 of the Act, the following ingredients has to be proved :
(a) That a cheque have been presented in a bank within a period of six (6) month from the date on which it is drawn or within a period of its validity.
(b) The said cheque should have been issued for discharge in whole or in part of debt or other liability.
(c) The cheque should have been returned by the bank unpaid due to reason of insufficient funds or that it exceed the amount arranged to be paid from that account.
(d) The payee or holder in due course makes the demand of payment of the said loan of money by giving a notice in writing to the drawer of cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque.
(e) The drawer of said cheque fails to make the payment to the payee or holder in 5 due course within 15 days of receipt of said notice.
22.In the present case, in the light of testimony of complainant CW1, original return memo Ex.CW1/C filed on record showing the reason for dishonouring of cheque as "exceeds arrangement/payment stopped by drawer", admission made by the accused u/s 313 Cr.P.C that the cheque in question Ex.CW1/B was dishonoured for reason of payment not arranged for/payment stopped by drawer and admission made by the accused u/s 313 Cr.P.C that he had received the legal notice dt. 18-12-03 Ex.CW1/C, the ingredients of Section 138 of the Act mentioned at srl.no. (a), (c), (d) and (e) in the preceding para stands proved by the prosecution beyond reasonable doubt.
23.After hearing both the parties and after perusing the evidence led on record, the only point which requires determination vide this judgment is whether cheque Ex.CW1/B has been issued by the accused to discharge his legal liability towards the complainant or not?
24.As far as the case of the prosecution goes, it is deposed to by the complainant as CW1 that cheque in question was issued by the accused to discharge the liability against the purchase of goods worth Rs. 48,750/- from the complainant. The complainant has filed on record carbon copy of the bill Ex.CW1/A. Original bill book containing the carbon copy of bill Ex.CW1/A was also produced by the complainant in this case. The cheque in question Ex.CW1/B is of the exact amount of the bill Ex.CW1/A i.e Rs. 48,750/-. Accused has admitted in his examination u/s 313 Cr.P.C that signature appearing on the cheque Ex.CW1/B and the amount in words and in figures and the date of the cheque are in his handwriting. Therefore, in the light of the above discussion, there is factual basis for raising the presumption u/s 139 of the Act that the cheque Ex. CW1/B was issued by the accused to discharge the liability of the goods purchased from the complainant vide bill Ex.CW1/A. However, the said presumption is rebutable and accused can rebut the same by proving to the contrary.
25.It is the settled principle of law that presumption u/s 139 of the Act can be rebutted only by proving to the contrary. Mere denial of liability is not enough. I am fortified 6 with my reasoning by the judgment passed by Hon'ble Supreme Court of India in case titled as "Hiten P Dalal Vs. Bratindranath Banerjee 2001(3) C.C. Cases SC 45"
wherein it was held in para 22 that "Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram Vs. Custodian Evacue Property, Bombay, AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised U/s 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantraj Balwantraj Desai Vs. State of Maharashtra, AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras Vs. Vaidyanath Iyer(Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised U/s 14 of the Evidence Act and cannot 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. The words 'unless the contrary is proved' which occur in this provisions make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man 7 would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted".
26.Now let us see whether in the present case accused has been able to rebut the presumption by provi
27.ng to the contrary or not?
28.The defence of the accused is that cheque Ex.CW1/B which had his signatures, amount in figures and words and date in his handwriting was misplaced by his younger brother namely Neereaj Jain and the cheque in question has been misused by the complainant by inserting his own name in the blank space meant for filling up the name of payee and there was no liability towards the complainant.
29.In order to prove his defence, accused has examined himself as DW1 and has also examined his brother Neeraj Jain as DW2. Both DW1 and DW2 have deposed on oath that cheque Ex.CW1/B was lost by DW2 Neeraj Jain on 14-12-03 at Shanti Mohalla, Gandhi Nagar, Delhi. It is also deposed to by DW1 that the cheque was duly signed and was having the amount of Rs.48,750/- mentioned in it but the name of the payee was kept blank. NCR regarding loss of cheque Ex.DW2/1 was also made by the accused to p.s Krishna Nagar. The accused has also brought on record certified copy of complaint case No.293/1 filed by him against the accused regarding the misuse of cheque in question which is Ex.DW1/A.
30.The defence taken by the accused has not been proved by him on record. The accused in his examination u/s 313 Cr.P.C has denied that complainant was doing the business of garments under the name and style of M/s Shiva Fabrics. However, the accused in his reply Ex.CW1/I dt. 20-12-03 to the legal notice issued by the complainant has admitted the fact that the complainant was doing the business of clothes by the name and style of M/s Shiva Fabrics. Further, the accused has admitted in complaint case no. 293/1 in para 2 of Ex.DW1/A that he is dealing in sale of clothes. Therefore, this fact has been proved beyond reasonable doubt on record that complainant was doing the 8 business of garments under the name and style of M/s Shiva Fabrics and accused was also in the business of sale of clothes. The complainant has filed on record carbon copy of the bill Ex.CW1/A of Rs. 48,750/- and the cheque in question Ex.CW1/B is of the exact amount. The accused has admitted that he has filled up the cheque amount in his own hand writing. The fact that both the parties are dealing in sale and purchase of clothes and the cheque amount being the exact amount of the bill Ex.CW1/A and no explanation has come on record from the accused as to for what purpose the cheque Ex.CW1/B was issued containing the exact bill amount, it can be safely concluded that the cheque was issued by the accused to discharge the liability towards the complainant for purchase of goods vide bill Ex.CW1/A.
31.The defence taken up by the accused that the signed cheque Ex.CW1/B was lost by his younger brother DW2 Neeraj Jain on 14-12-03 in Shanti Mohalla, Gandhi Nagar, Delhi is not believable as the said defence has been taken up for the first time at the stage of examination of accused u/s 313 Cr.P.C. The accused never put up this defence in the cross examination of complainant and further no such defence was taken up by the accused in his reply dt. 20-12-03 Ex.CW1/I. Further in complaint case no.293/1 Ex.DW1/A, no such defence was taken by the accused that the cheque Ex.CW1/B has been lost by his younger brother on 14-12-03 in the market. The taking up of this defence by the accused for the first time at the stage of his examination u/s 313 Cr.P.C is nothing but an after thought and is a sham defence.
32.Another reason for disbelieving the defence of the accused is the contradiction in the defence taken by the accused in his reply Ex.CW1/I and Ex.DW1/A and the evidence led on record. The defence taken by the accused in his reply dt. 20-12-03 Ex.CW1/I and in Ex.DW1/A is that the cheque was stolen by complainant from his shop and thereafter the same was misused but defence taken up by the accused in his examination u/s 313 Cr.P.C and in the defence evidence was that the cheque Ex.CW1/B was lost by his younger brother Neeraj Jain in the market. The defence of the accused is not consistent. On the contrary, it is contradictory and demolishes the defence of the accused.
933.Another reason for disbelieving the defence of accused is that accused has offered no reasonable explanation in this case as to why he had given a signed cheque to his brother which contained the exact amount of the bill amount Ex.CW1/A although DW1 Umesh Jain has deposed that the cheque Ex.CW1/B was kept for some party but in his cross examination he deposed that he cannot tell the name of the party for whom the cheque was to be issued. He further deposed that there was no transaction with the party to whom the cheuqe was to be given. This testimony made by DW1 Umesh Jain is not believable that he had kept duly signed cheque duly filled in with the amount for a party which was unknown to him and with whom he did not have any transaction. No sane person will issue a cheque to an unknown person with whom he has done no transaction. Further, the defence with regard to issuance of cheque where the name of payee was kept blank is also not consistent between the two defence witnesses. DW1 states that there was no transaction with the unknown party whereas DW2 who happens to be the brother of accused has deposed in his cross examination that cheque Ex.CW1/B was issued for purchase of certain clothes from a party which was based in Chandni Chowk. Both the defence witnesses are taking divergent and contrary defence with regard to the issuance of cheque. Therefore, the defence put forward by the accused cannot be believed.
34.Assuming that cheque Ex.CW1/B was to be given to a party for purchase of clothes based at Chandni Chowk, then also the defence of the accused cannot be believed as nothing is brought on record by the accused to show that the clothes were already purchased from the party at Chandni Chowk worth Rs. 48,750/- and secondly, if the same were not purchased and were yet to be purchased from Chandni Chowk, then how the accused came to know before hand that the amount of the bill will be Rs. 48,750/- is beyond the comprehension of this court.
35.In the light of above discussion, the accused has miserably failed to rebut the presumption u/s 139 of the Act.
36.All the ingredients of Section 138 of the Act have been proved by the prosecution 10 beyond reasonable d
37.oubt. Accordingly, accused is convicted u/s 138 of the Act.
ANNOUNCED IN THE OPEN COURT TODAY ON 1-4-08 (VIKAS DHULL) METROPOLITAN MAGISTRATE KARKARDUMA:DELHI 11 CC No.1009/07 Shiva Fabrics vs. M/s Deep Enterprises ORDER ON SENTENCE Present: Complainant in person with counsel Shri P.K. Khanna.
Convict in person with counsel Shri Momin Khan.
1. Arguments on the point of sentence heard and record perused. It is prayed by the counsel for complainant that convict be awarded maximum punishment provided under the Act and he has also made a prayer that complainant be adequately compensated for the loss of interest for more than 4½ years and expenses incurred in fighting this case for around more than 4 years.
2. On the other hand, counsel for convict has made a prayer for taking lenient view as he submits that this is the first offence of the convict and convict is a young man aged about 40 years and is a married person and has to take care of his two small children.
He further submits that convict is also required to take care of his old widow mother.
Accordingly, he has made a prayer for releasing the convict on probation.
3. In the light of galloping rise of cheque bouncing cases in the society and to provide a detterent to other potential offenders, I am not inclined to extend the benefit of probation to the convict.
4. In the facts and circumstances of the case, the convict is sentenced to SI of three months. He is further directed to pay a compensation of Rs. 80,000/- to the complainant 12 towards the principal amount of the cheque, loss of interest for more than 4 years and expenses incurred by the complainant in fighting this litigation. In case of non payment of compensation, convict shall further undergo 20 days SI.
5. At this stage, an application u/s 389 Cr.P.C seeking suspension of sentence passed today has been filed on record by the convict. Heard. Since the convict has been sentenced to 3 months SI only and he intends to file an appeal in the appellate court against the order of sentence passed today, the application filed is allowed subject to the convict filing on record a personal bond of Rs. 20,000/- with one surety of the like amount. Bailbonds filed. Same have been accepted till 7-5-08 by which time the convict is directed to obtain a confirmatory bail order from the appellate court. Copy of judgment and copy of order on sentence be supplied free of costs to the convict. Put up on 7-5-08.
ANNOUNCED IN THE OPEN COURT TODAY ON 7-4-08 (VIKAS DHULL) METROPOLITAN MAGISTRATE KARKARDUMA:DELHI