Delhi District Court
Cc No.3986/1 Ashwani Dutta vs Pankaj Adlakha 1/ 15 on 16 September, 2015
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.3986/1
Sh. Ashwani Dutta
S/o Late Sh. Subhash Dutta,
R/o A-5, Second Floor Om Vihar,
Uttam Nagar, Delhi. .....Complainant
Versus
Pankaj Adlakha
R/o 30/2, Single Storey,
Ashok Nagar, Near Tilak Nagar,
Delhi. .........Accused
Date of Institution : 11.11.2011
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 01.09.2015
Date of Decision : 11.09.2015
Final Order : Convicted / Held
guilty.
CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 1/ 15
Judgment
1.The complainant has prosecuted the accused under section 138 of the Negotiable Instruments Act 1881 (hereinafter referred to as the NI Act) for dishonor of cheque bearing no. 160916 (hereinafter referred to as the impugned cheque) on the ground of insufficiency of funds. The facts of the case portray the situation of a friendly relationship gone awry. The complainant and the accused are known to each other for many years. The complainant has alleged that he advanced a loan of 2,00,000/- to the accused against which the accused issued the cheque in question dated 22.7.2011. However upon presentation, the same was dishonored vide returning memo dated 11.10.2011. Consequently the accused took recourse to the procedure envisaged under section 138 of the NI Act and sent demand notice dated 18.10.2011 to the accused demanding payment of the cheque amount. However as no payment was made, the present complaint was filed by the complainant through his wife Mrs. Meenakshi Datta by executing a power of attorney in her favour (Ex. CW1/1).
2. Plea of defence of the accused was recorded under section 251 CrPC and he admitted that the cheque in question bears his signatures and was also filled up in his handwriting. However his case is that he had issued the cheque in question to the complainant for the purpose of payment of premium of an insurance policy that he wanted to obtain through the complainant, the complainant being an insurance agent from whom he had taken various policies on earlier occasions as well. However subsequently he did not take any insurance policy from the complainant and therefore the cheque was without consideration. He CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 2/ 15 denied having taken the alleged loan from the complainant or having issued the same for repayment of any loan amount. The accused also denied the receipt of legal demand notice.
3. Before adverting to the merits of the case, I shall first deal with the preliminary objection raised by the Ld. Counsel for the accused. It was contended by the Ld. counsel for the accused that in view of the deposition of the AR of the complainant, her affidavit Ex. CW1/1 was inadmissible in evidence and could not be acted upon. The relevant portion of the deposition is reproduced below:
"The present case was filed by my husband and not by me. In March, 2012 my husband went abroad. Before leaving my husband executed POA in my favour to prosecute the present complaint. The said POA was signed by my husband before he left. The POA was prepared in Tis Hazari. I was not there so I cannot say if the document was entered in any register or notarised. I have signed the POA when it was already attested. I have not signed any register with respect to the POA. The witness has been shown Ex.CW1/I and she has admitted the document. It is wrong to suggest that the POA is false and fabricated."
4. It was pointed out by the Ld. counsel that as per the testimony of the AR of the complainant, the power of attorney Ex. CW1/1 was attested after she had already signed the same. Consequently the same could not be said to have been properly attested and was of no force in the eyes of law. It was argued that as the power of attorney CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 3/ 15 whereby the AR of the complainant had been authorized to depose in the shoes of the complainant was itself of no force, her affidavit in evidence Ex. CW1/A1 could also not be acted upon. The complainant had not stepped into the witness box himself and it was his AR who had led evidence in support of his case. As the testimony of the AR could not be acted upon, the entire case of the complainant fell through and hence the present complaint itself was liable to be dismissed on this ground alone.
5. I am unable to agree with the submissions of the Ld. counsel for the accused. A power of attorney is an instrument whereby one person authorizes another to act in his/her name. Neither the Indian Evidence Act 1872 nor the Notaries Act 1952 or rules thereunder nor the Contract Act, 1872 requires that a power of attorney be signed by the power of attorney holder or attested and what is of significance is the signatures of the executant. The executant of the power of attorney in this case i.e. the complainant has not disputed his signatures. It is also not the case that the Ld. counsel for the accused has challenged the signatures of the complainant on the power of attorney. In these circumstances, the challenge raised by the Ld. counsel for the accused to the validity of the power of attorney does not hold water.
6. Culpability for the offence of dishonor of cheque under section 138 of the NI Act requires that the accused should have drawn the cheque on a bank account maintained by him and issued the same to the complainant in discharge of a debt or other legal liability. It further enjoins the payee to send a notice to the drawer demanding payment CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 4/ 15 of the cheque amount within 30 days of the dishonor of the cheque. It is only upon non payment of the cheque amount within 15 days of the receipt of demand notice that the complainant is at liberty to file a criminal complaint against the drawer for dishonor of the cheque.
7. It was contended by the Ld. counsel for the accused that the returning memo Ex. CW1/B is merely a copy which does not bear the signatures of concerned bank official. It was therefore argued by the Ld. counsel that the dishonor of the cheque in question had not been proved. In support of this submission, the Ld. counsel placed reliance upon section 146 of the Negotiable Instruments Act. Section 146 is reproduced below:
"The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
8. In order to bring home the offence of section 138 of the Negotiable Instrument Act, section 138 requires that the cheque issued by the accused must have been dishonored for specified reasons. The dishonor of the cheque can be proved like any other fact i.e. through oral or documentary evidence. Admissions and presumptions are evidentiary aids in as much as where a fact is admitted by the other party or a presumption operates in respect of a particular fact, there is no need to bring proof in respect thereof unless the admission or the presumption is impinged. Section 146 merely establishes a CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 5/ 15 presumption pertaining to the factum of dishonor of the cheque stating that where 'bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured' is produced, the court shall presume the fact of such dishonor. The language of Section 146 does not require any official seal of the bank or signatures of any concerned official. The complainant has placed on record the returning memo Ex. CW1/B. This returning memo bears the stamp of the concerned branch albeit it does not bear the signatures of any bank official. I do not find any reason to doubt the veracity of Ex. CW1/B. Further, the accused has in any event not disputed the dishonor of the impugned cheque. No suggestion to the contrary has been given to CW1. On the contrary during cross examination, the accused has admitted that on the day on which the cheque in question was dishonored, there were not sufficient funds in his account due to which the cheque bounced. Therefore the dishonor of the cheque stands proved and the mere fact that the returning memo does not bear the signatures of a bank official is of no consequence.
9. Next, I shall address the issue of receipt of demand notice by the accused. The demand notice has been sent to the accused at 30/2, Single Storey, Ashok Nagar, Near Tilak Nagar, Delhi and also at C-16, IIIrd Floor Chander Nagar, Behind Janak Puri, West Metro Station, New Delhi. The accused denied having received the demand notice sent at this address. During cross examination, the accused deposed that the address "30/2, Single Storey, Ashok Nagar, Near Tilak Nagar, Delhi"
was his parental address which was also his permanent address and while most of the times he receives communication sent at this CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 6/ 15 address, sometimes he does not receive the same. He also stated that his bank records also continue to reflect the same address.
10. It is settled law that if the demand notice is properly and correctly addressed, there is presumption of service thereof. It is then for the accused to prove that he did not receive the demand notice and this cannot be accomplished by a mere denial. For this proposition, reliance is placed upon the pronouncements of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammad 2007 Cri.L.J. 3214 reiterated in Ajeet Seeds Ltd. v. K. Gopala Krishnaiah VI (2014) SLT 524.
11. In the present case, the accused has not led any evidence to suggest that he actually did not or could not have received the demand notice at the given address. On the contrary he has himself deposed that the address on which the demand notice was sent was his permanent address and he has in the past received communication sent at this address. Even assuming that he no more resides at this address, the accused has not stated during his deposition the address at which he actually resides or filed any document reflecting the same. In view of the fact that the address on which the demand notice has been sent is the correct address of the accused, the denial of the accused is mere ipse dixit. Therefore the service of demand notice stands proved.
12. Like any other offence, fastening of criminal liability upon the drawer of a dishonored cheque demands a strict adherence to the CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 7/ 15 ingredients of section 138. However in so far as the burden of proof in regard to the existence of legal liability is concerned, there is a significant deviation as section 139 and section 118 of the NI Act create a presumption in favour of the complainant. This burden can be however discharged by the accused by creating a reasonable doubt in the case of the complainant. Various judicial pronouncements on this aspect have thrown light on how the same can be accomplished by the accused. In one of the more recent judgments namely M/S Kumar Exports v. M/S Sharma Carpets [Criminal Appeal No. 2045 OF 2008, dated 16 December, 2008], the court has articulated the position thus:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.... At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. .......Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant.....The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 8/ 15 complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial."
It was also held in this case that it is not necessary for the accused to step into the witness box in every case.
13. The evidence led has to be assessed in the light of legal yardstick as enunciated above. In the present case the issuance of cheque by the accused to the complainant is not denied. The accused has also admittedly filled up the cheque in question. However it is the case of the accused that the impugned cheque was issued to the complainant for the purpose of payment of premium of an insurance policy as the complainant was the insurance agent of the accused. It is therefore pertinent to examine the examination in chief of the accused. The relevant portion is reproduced below:
"On 09.07.2011 my daughter Radha was born and I called the complainant for the purchase of new policy in the name of my daughter. He suggested me for a single premium policy of around Rs. 2 lacs, I agreed on the proposal of the complainant as I was having Rs. 1.25 lacs in cash as collected in SHAGAN. The complainant told me that his wife has recently taken an agency of Aviva Life Insurance and he will finalize most suitable policy for Radha after comparing the available policies of Max and Aviva and then will finally tell the premium amount. As I was used to give him cash for deposit of premium on my behalf, I handed him the cheque in question in his name he also got a plain blank paper signed by me for which the complainant said that he will prepare the authority letter authorising him to deposit CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 9/ 15 cash on my behalf. After few days as he was having some programme to go out of India, we could not finalize about the policy and I asked him to wait for some months for the purchase of the policy. I also requested him to return my cheque but later on I was surprised to know that he has presented the cheque after 3-4 months and later on filed the present false case."
14. The deposition of the accused itself casts doubts upon the veracity of his story. The accused first states that the complainant suggested to him to take a single premium insurance policy and told him that he would tell him the exact premium amount after comparing the policies offered by Max Life Insurance and Aviva Life insurance. The accused also states that he had not filled any proposal form. In the ordinary course of nature, it would be difficult to believe that a person seeking to avail an insurance policy would give a cheque for the premium amount without having first decided which policy to obtain and without even filling a proposal form. Further the accused has himself stated that the complainant was to tell him the premium amount after comparing the available policies. If that was the case, it is circumspect as to why the accused handed over the impugned cheque in the sum of 2 lacs. The accused goes on to state that he gave the cheque to the complainant in July 2011 and after a few days the complainant had to go abroad and as no decision could be arrived at with respect to the policy to be taken, he asked the complainant to wait for a few months and return the cheque. It is important to note than the cheque in question has been presented in October 2011 and the accused never CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 10/ 15 issued any instructions to his bank to stop the payment of the impugned cheque if no decision had been arrived at with respect to the policy to be taken. As per the version of the accused himself, the policy to be taken could not be decided upon. In these circumstances, the conduct of the accused in not taking any steps for return of his cheque for 3-4 months from the complainant or issuing stop payment instructions to his bank for preventing the misuse of the cheque is questionable and is not becoming of a prudent man.
15. The accused has placed on record the receipts pertaining to the deposit of premium of insurance policy. Same is Ex. DW1/X2 (colly). Some of these receipts mention the name of the complainant as the agent advisor. However these receipts pertain to the deposit of premium in another policy. The policy sought to be obtained from the complainant for which the accused has allegedly issued the cheque in question was never taken. Ex. DW1/X2 merely proves that the complainant has been an agent advisor of the accused and this fact alone does not support the defence of the accused.
16. The Ld. counsel for the accused also argued that the complainant did not have sufficient source of income to advance the loan amount in question. He invited the attention of the court to the following portion of the deposition of the AR of the complainant:
"At the time of the transaction in question my husband used to earn approx. Rs.50,000/- per month through the insurance agency. In the year 2011 my husband did not file any ITR and I cannot say whether my husband filed ITR's before 2011. it is CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 11/ 15 wrong to suggest that my husband did not earn Rs.50,000/- per month through the insurance agency or any other source and due to the same ITR's were not filed by my husband. It is wrong to suggest that my husband's income was less than Rs. 1,50,000/- at the time of transaction in question. At the time of transaction in question we used to save approx. Rs.2.5 to 3 Lacs annually. I have been saving the said amount in our bank accounts. I have not filed statement of account on record. It is wrong to suggest that we were not able to save the above stated amount and thats why we have not filed statement of account. The loan of Rs.2 Lacs were given to the accused in cash out of the money kept with us at home and in the bank account approx. Rs.1 Lac from the bank and Rs.1 Lac from the money kept at the house. Again said, the entire loan amount was given from the money kept in our house. It is wrong to suggest that no amount was ever given to the accused and thats why I am changing my statement time and again."
17. However upon a consideration of the deposition of the AR of the complainant, I do not find that the ability of the complainant to advance the loan amount has been impeached. The AR of the complainant has categorically stated during her deposition that at the relevant time, they used to save 2.5-3 lacs annually. Therefore on this count also, the accused has not been able to create a reasonable doubt.
Conclusion:
CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 12/ 15
18. Therefore after evaluating the evidence on record, I find that the accused has been unable to raise a probable defence. Consequently the case of the complainant stands proved beyond reasonable doubt. Accused is accordingly convicted for the commission of the offence under section 138 of the NI Act.
Announced today in the (AAKANKSHA VYAS)
open court on 11.09.2015 MM NI ACT (WEST)/DELHI/11.09.2015
CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 13/ 15
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.3986/1
Ashwani Dutta
S/o Late Sh. Subhash Dutta,
R/o A-5, Second Floor Om Vihar,
Uttam Nagar, Delhi. .....Complainant
Versus
Pankaj Adlakha
R/o 30/2, Singal Storey,
Ashok Nagar, Near Tilak Nagar,
Delhi. .........Accused
16.09.2015
Order on Sentence:-
Ld. counsel for the accused has submitted that the accused is the sole bread earner of his family consisting of his wife and two daughters aged 04 years and 11 months respectively. It is further submitted that there is no previous criminal case pending against the accused. Further, the accused has participated in the court proceedings regularly. Thus, the accused has prayed for a lenient view.
On the other hand ld. counsel for the complainant has submitted that the accused is a man of means and he has deliberately evaded payment CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 14/ 15 of the cheque amount to the complainant which shows his malafides. It is thus prayed by the ld. Counsel for the complainant that the accused be punished stringently with the maximum sentence of imprisonment permissible and heavy compensation be awarded to the complainant.
It is necessary to be mentioned here that the offences u/s 138 of N.I. Act are on high rise and in order to keep the spirit of the legislation, the accused cannot be released on probation as these offences have massive effect on the economic condition of the persons.
I have heard the arguments led by both the counsels on behalf of the parties. Keeping in view, the points put forth by both the parties and considering the submissions of the accused and sufferings of the complainant, I feel the ends of justice will meet if the accused is sentenced to undergo simple imprisonment of three months and is ordered to pay the compensation of Rs.2,50,000/- to the complainant and in case of failure to pay the amount, the accused shall undergo further simple imprisonment of one month. Accordingly, sentence stands passed.
AAKANKSHA VYAS MM NI ACT (WEST),DELHI 16.09.2015 CC No.3986/1 Ashwani Dutta vs Pankaj Adlakha 15/ 15