Delhi District Court
Neeraj Kumar. ... Complainant vs . on 9 October, 2014
IN THE COURT OF SH VIPIN KHARB
METROPOLITAN MAGISTRATEI (NORTH WEST)
ROHINI COURTS, DELHI
Case No. : 277/1
Neeraj Kumar. ... Complainant.
S/o Sh. Raj Kumar
R/o G310, Gali No. 1,
Adhyapak Nagar, Nangloi, Delhi 110041
Vs.
Gulab Singh.
S/o Sh. Tilak Dhari Singh
R/o Village Darna,
P.O. Bhagmalpur,
Distt. Jaunpur, Uttar Pradesh,
Also at:
B3/145, Sultan Puri,
Delhi110041. ... Accused.
Date of Institution : 23.03.2009
Date of Reserving Judgment : 09.10.2014
Date of Judgment : 09.10.2014
CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 1 to 15
:: JUDGMENT ::
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1.By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant Sh. Neeraj Kumar against the accused Sh. Gulab Singh.
2.The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, accused had availed financial assistance of Rs. 2,00,000/ from the complainant as friendly loan, which accused promised to repay before 31.01.2005. Accused issued cheque bearing nos. 6140002, 6140003, 6140004 and 6140005 dated 01.02.2005, 04.02.2005, 07.02.2005 and 09.02.2005 respectively each amounting to Rs. 50,000/ drawn on SBI, Sultan Puri in favour of the complainant in discharge of his liability. However, on presentation all cheques got dishonored vide cheque returning memo dated 09.02.2005 with remarks "Funds Insufficient". The complainant thereafter send a legal notice of CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 2 to 15 demand dated 14.02.2005 to the accused which was sent by RLAD and UPC on 14.02.2005 thereby calling upon the accused to make the payment of the cheques amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
3.After the complaint was filed, the complainant led his 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 16.08.2005 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 04.12.2012 was given to the accused to which he pleaded not guilty and claimed trial and the matter was fixed for defence evidence as per judgment of Hon'ble High Court of Delhi in case titled as Rajesh Aggarwal Vs. State and Ors. 171 (2010) DLT
51. On 04.12.2012, Ld. counsel for accused moved an application U/s 145 (2) of Negotiable Instruments Act and the same was allowed by CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 3 to 15 the Court and the case was listed for cross examination of Complainant.
4.In order to prove the case, the complainant got himself examined on oath and filed his evidence by way of affidavit. He got exhibited original cheques before the court as Ex. CW1/1 to Ex. CW1/4, the cheque returning memo as Ex. CW1/5 to Ex. CW1/8, the legal notice of demand dated 14.02.2005 as Ex. CW1/9 and RLAD receipt as Ex. CW1/10 and Ex. CW1/11 and UPC receipt as Ex. CW1/12 vide which the aforesaid notice was sent. Complainant was cross examined by Ld. Counsel for the accused. In cross examination complainant deposed that accused approach him for loan in October 2004. He used to give private tuitions. He received Rs. 1.5 lacs from his Nani. Rs. 50,000/ were arranged by him from his pocket money and his tuitions. Thereafter, the complaint evidence was closed at request.
5.After that statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 4 to 15 were put to the accused in which he admitted that undated cheques were handed over by him to the father of the complainant. He had only taken Rs. 50,000/ from the father of the complainant at interest of 5 % per month. Father of the complainant had taken cheques in question as guarantee. For 2 year he paid the interest but after that he failed to make the payment. Father of the complainant forcefully obtained his signatures on some blank papers and under fear he ran away from Delhi. He further submitted that he had not received the legal notice of demand and he has no liability towards complainant. Thereafter the case was fixed for defence evidence.
6.Accused examined HC Megh Raj as DW1 who exhibited the DD No. 55 B dated 11.10.2004 as DW1/1 vide which wife of accused filed a missing report about her husband. Accused examined Sh. Raj Kumar, father of the complainant as DW2. DW2 deposed that complainant is his son and his son used to manage his own expenses by giving tuitions. He knew accused since 1999 as accused used to supply newspaper at their house. Accused used to borrow money from him and repay them. His son had advanced money without CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 5 to 15 informing him. In 2002 his mother in law gave some money to the complainant. He denied the suggestion that cheques in question were obtained by him after beating the accused and he misused the cheque by filing the name of his son in payee column. Thereafter, the case was fixed for Final Arguments.
7.Final arguments were addressed on behalf of both parties.
I have heard Ld. counsels for both parties and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
8.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.
CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 6 to 15 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, 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.
9.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.
10.WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheques in question CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 7 to 15 which are Exhibit CW1/1 to CW1/4 are dt. 01.02.2005, 04.02.2005, 07.02.2005 and 09.02.2005 respectively which got dishonoured vide cheque returning memos which are Exhibit CW1/5 to CW1/8 all dated 09.02.2005 which is not disputed by the accused clearly shows that the cheques has been presented within period of its validity i.e. within six months from the date of issuance of the cheques.
11.DISHONOUR OF CHEQUE IN QUESTION In the instant case complainant got exhibited the cheques returning memo which are Ex. CW1/5 to Ex. CW1/8. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused.
Therefore considering the entire evidence on record it stands duly proved that the cheques in question were dishonored vide cheques returning memos dated 09.02.2005 which is Ex.CW1/5 to Ex. CW//8 with the reason " Funds Insufficient".
12.SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 8 to 15 In the instant case complainant as CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 14.02.2005 which is Ex.CW1/9 and it was sent to the accused vide RLAD and UPC and receipt of which are Ex.CW1/10 to Ex. CW1/12. The accused has denied the receipt of legal notice of demand in his statement U/s 313 Cr.PC.
"There is presumption U/s 27 of General Clauses Act in favour of the complainant that properly addressed documents sent by the registered post is deemed to have been delivered if not returned back."
I have perused the legal notice of demand and RLAD acknowledgment card. They bears the same address of the accused as mentioned on the complaint. RLAD receipts issued by the postal authorities is also on record. The address furnished by the accused on his personal bond is the same address which is mentioned on the legal notice of demand sent to the accused. Considering the evidence on record, Court is of the considered opinion that the legal notice of demand was served upon the accused.
CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 9 to 15
13. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, complainant as CW1 has specifically stated in his examination in chief by way of affidavit that the accused issued the cheques in question in discharge of his legal liability towards the repayment of the loan amount. The accused has however stated in his statement U/s 313 Cr.PC r.w 281 Cr.PC that undated cheques including the cheques in question were handed over by him to the father of the complainant byway of guarantee as he had taken Rs. 50,000/ from the father of the complainant at interest of 5 % per month. For 2 years, he paid the interest but after that he failed to make the payment. Father of the complainant forcefully obtained his signatures on some blank papers and under fear he ran away from Delhi. He denied that he received the legal notice of demand.
Before deciding this issue let us go through the relevant provisions of law.
Section 46 of the Negotiable Instruments Act speaks of the CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 10 to 15 delivery, it reads as follows: "The making, acceptance or endorsement of a promisory notice, bill of exchange or cheque is completed by delivery, actual or constructive."
Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made.
(b) As to date that every Negotiable Instrument bearing a a date was made or drawn on such date.
Moreover, there is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is 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.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 11 to 15 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.
Section 139 NI Act draws the presumption in favour of complainant that he received the cheques for the discharge of legal liability. So, in the case under consideration the onus is not on the complainant to show that cheques in question were received for consideration rather onus is on the accused to show that cheques in question were not given for consideration.
Defence of accused is that he took loan from father of complainant and gave him undated cheques as guarantee but the father of complainant misused them. Accused examined father of complainant in his defence as DW2 but the evidence of DW2 doesn't support the version of accused instead it corroborates the case of complainant that complainant got some money from his nani, which he gave to accused as loan.
Accused also examined DW1 who exhibited missing report of accused filed by his wife as DW1/1 but same is not a relevant piece of evidence in this case as it doesn't throw any light to prove the fact that accused had no legal liability towards complainant to the tune of CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 12 to 15 cheque amount or that cheques in question were not issued for any consideration.
Except these two witnesses, accused didn't examine any other witness and failed to bring anything on record to substantiate his defence. He even failed to examine himself. In "V.S. Yadav Vs. Reena." Crl. A. No. 1136 of 2010 passed by Hon'ble High Court of Delhi, Hon'ble Court observed at para 5 that "in the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross- examination. His explanation that he handed the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused U/s 281 Cr.PC that the cheques were issued as security does not amount to proof".
In the present case, facts are similar to facts in above mentioned case. Accused has only given an explanation in his statement u/s 313 CrPC r/w 313 CrPC but he neither appeared in the witness box to CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 13 to 15 testify nor got himself subjected to cross examination.
Considering the evidence on record, I am of the opinion that the accused has failed to discharge his onus and has not been successful to rebut the presumptions U/s 118 (a), (b) and section 139 of Negotiable Instruments Act.
On the contrary, the allegations of the complainant that he lent Rs. 2,00,000/ to the accused has been duly substantiated by the deposition of DW2 and it is proved that the accused had legal liability towards the complainant.
Therefore, it stands duly proved that the cheques in question which is Ex. CW1/1 to Ex. CW1/4 were issued and drawn in discharge of legal liability of the accused and for consideration.
14. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case complainant has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount and no question CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 14 to 15 was put to him during cross examination as far as the payment of cheque amount by the accused is concerned. Further the accused has also admitted in his statement U/s 313 Cr.PC that he had not paid the cheque amount to the complainant.
Considering the evidence on record it stands proved that the accused have failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand.
15.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 Sh. Gulab Singh stands convicted for the offence u/s 138 Negotiable Instruments Act.
Let the copy of this judgment be supplied to the accused.
Announced in the open court ( VIPIN KHARB) on 09.10.2014 MMI/NW/DELHI CC No 277/1 Neeraj Kumar Vs Gulab Singh Page 15 to 15