Delhi District Court
Reported As M/S Prem Chand Vijay Kumar vs . Yashpal Singh on 29 June, 2007
1
IN THE COURT OF MS. ANU GROVER BALIGA
MM, NEW DELHI
CC No. 1519/1
Bimla Devi
W/o Sh. L. R. Verma
Proprietor of M/s. Verma Jwellers
59-60, Ram Puri, Kalkaji, New Delhi
Vs
Raj Kumar Misra
S/o Sh. Mawa Ram,
Prop. Kalpana Kaj Centre,
1153/15, Govind Puri, New Delhi
JUDGEMENT
1. ) Briefly stated the averments on the basis of which the present complaint has been filed are as follows :
i) It is averred that the complainant is the sole proprietor of a jewellry shop and that she is assisted in her business by her husband and her brother in day to day affair in the said shop.
According to the averments made accused No. 2, Shiv Kumar Misra had purchased five gold chains for himself valued at Rs. 31,930/- from the shop of the complainant and had promised to pay the said amount by 06.12.94. It is averred by the complainant that on 06.12.94 both accused persons alongwith 2-3 other persons came to her shop at about 2.30 PM and threatened the complainant by pointing a revolver at the husband of the complainant. On the raising of alarm accused persons ran away and later on a case u/s 452/506/34 IPC was registered against 2 accused No. 2 vide FIR No. 548/97.
ii) It is further the case of the complainant that after this incident both accused came to the house of the complainant several time and finally on 01.03.95 both of them agreed to clear account of the gold chains. In pursuance thereof accused No. 1 issued a cheque bearing No. 213384 for a sum of Rs. 29,999.40 to clear debt of accused No. 2.
iii) According to the averments made in the complaint the said cheque on presentation was dishonoured with remakrs "insufficient funds vide bank memo dt. 23.3.95. It is further averred by the complainant that she and her husband informed the accused persons regarding the bouncing of cheque and on request of accused no. 1, complainant again represented the cheque on 01.09.95 and it was again dishonoured with remarks " account closed". The legal notice dt. 15.05.95 was issued to the accused persons but since no payment was received and the present complaint u/s 138 NI Act r/w 420/37 IPC has been filed.
2) In support of its case in the pre-summoning evidence the complainant produced three witnesses. Vide order dated 18.02.97 cognizance was taken only for the offence U/s. 138 of N.I. Act and since the cognizance was taken only U/s. 138 of N.I. Act, only the drawer of the cheque i.e. accused no. 1 has been proceeded against.
3) After the appearance of accused no. 1, notice was framed 3 against him to which he pleaded not guilty and claimed trial.
4) In support of its case, the complainant herself stepped into the witness box as CW 1. In her examination in chief she has more or less reiterated the contents of the complaint. As per her statement the cheque in dispute has been exhibited as Ex. PW1/A, the bank return memos have been exhibited as Ex. PW1/B and C, legal notice has been exhibited as Ex. PW1/D and the postal receipt of sending the legal notice have been exhibited as Ex. PW1/E and F. The complainant was duly cross examined by the Ld. Defence Counsel.
5) The entire incriminating evidence was put to the accused and his statement was recorded U/s. 313 Cr.PC. In the said statement the accused stated that he had not taken any gold chain from the complainant nor he had issued any cheque against any liability. According to him there was a dispute between his brother and the complainant and his brother was got arrested at the instance of the complainant in a criminal case. He has further stated that during the arrest of his brother he lost the cheque in dispute and after receiving the first legal notice he contacted the complainant and told her not to present the cheque but since she was adamant, he got his account closed. He has stated that he has been false implicated and complaint filed is false.
6) In support of his defence the accused summoned the counsel of the complainant Shri Sudhir Batra as DW1 and husband of the complainant as DW2. DW 1 the Counsel for the 4 complainant in his examination in chief admitted that a legal notice dated 31.03.95 had also been issued to the complainant on behalf of Shri L.R. Verma, husband of the complainant and that the said notice is Ex. DW1/A. This Counsel also clarified in his examination in chief that when it was realized that the husband of the complainant is not proprietor of M/s. Verma Jewellers a fresh notice Ex. PW2/B was issued to the accused.
7) DW 2 L.R. Verma, husband of the complainant stated that he has no concern with M/s. Verma Jewellers and that his wife is the sole proprietor of this concern.
8) I have heard the Ld. Counsel for both the parties and have perused the entire record.
9) The first contention of the Ld. counsel for the accused is that the present complaint is not maintainable since it has been filed beyond the stipulated period of Limitation. His contention is that prior to the sending of the legal notice Ex.PW1/D dated 15.05.95, the complainant had earlier also sent a notice to the accused on 31.03.95. The submission is, therefore, that the Limitation period will commence from 31.03.95. and that the complainant could not have given the accused a second legal notice for the purposes of creating another cause of action . Ld. counsel has relied upon a judgment of the Hon'ble Supreme Court reported as M/s Prem Chand Vijay Kumar Vs. Yashpal Singh and another 2005 (2) SC. In the said Judgment the Hon'ble Supreme Court has held that once a notice u/s 138 (b) of the Act 5 was received by the drawer of the cheque , payee or holder of the cheque forfeits his rights to present the cheque again and it is not permissible. by payee to create another cause of action with the same cheque by sending another legal notice. Thus on the basis of this judgment it has been contended that since the ld. counsel for the complainant DW1 has admitted that a legal notice Ex.DW1/A was also sent to the accused, on 31.03.95 the complainant had no legal right to sent another legal notice to the accused on 15.05.95. In rebuttal to this argument it is contended by the Ld. counsel for the complainant that though a legal notice was sent to the accused on 31.03.95 on behalf of the husband of the complainant wherein it was mentioned that the husband of the complainant is the proprietor of M/s Verma Jewellers but thereafter when the Ld. counsel realised after examination of documents that it is the complainant who is the proprietor of M/s Verma Jewellers , another notice had to be sent to the accused, since admittedly the first notice was defective. Ld. counsel for the complainant has relied upon two judgments namely :-
1. Aniyan Thomas Chacko Vs. The Varverli Bankers and another 2007 (1) CC 262 Kerala
2. Raghubir Goswami Vs. Nirmal Thakur 2005 (2) DCR 365
10) In the said judgments the Hon'ble Courts have held that a cause of action begun to run not on the issuance of a defective notice, but it starts to run on issuance of notice on dishonour of 6 cheque for the second time. It has also been held by the Hon'ble Delhi High Court that any notice which is not in conformity with the requirement of Section 138 of N.I. Act is not a valid notice for the purposes of putting into motion the purpose of Law and can not be used to count Limitation. Ld. counsel for the complainant has also contended that this issue has already been decided by the Ld. Sessions Court vide order dated 25.02.2003 and, therefore, it is not now open to the accused to raise this issue again. In the said order the Ld. Sessions Court ( which was then the trial court for the complaints u/s 138 N.I. Act ) has held that since the first notice was given by the husband of the complainant and not by the complainant herself , there was no bar upon the complainant to sent the Second notice on 15.05.95. Ld. counsel for the accused on the other hand had submitted that the order of the Ld. Sessions court dated 25.02.2003 did not finally decide, the issue between the parties as it proceeded on the premise that Bimla Devi, the complainant is the proprietor of M/s Verma Jewellers. He contends that during the evidence it has come on record that M/s Verma Jewellers were not a proprietorship firm but was a partnership firm and according to him the husband of the complainant was a partner in the said firm and , therefore, the first legal notice was not defective. Ld. counsel has pointed out that CW1 Kuldeep Gupta official from State Bank of Patiala , who was summoned by the complainant during pre summoning evidence has categorically deposed that the account no. 22/1, wherein the cheque in dispute was presented in their bank by Bimla Devi, was being operated in her capacity as a partner of M/s Verma Jewellers. He has further pointed out that in the cross-examination 7 of the complainant, the complainant has also admitted that infact M/s Verma Jewellers was earlier a partnership firm and her brother was a partner therein. He has thus contended that the averments of the complainant made in the complaint that she is the sole proprietor of M/s Verma Jewellers is incorrect and it is to be held that her husband was also a partner in the said firm and was equally entitled to sent the legal notice on behalf of M/s Verma Jewellers.
11) Though there is much force in the contention of the Ld. Defence Counsel, that since the complainant has not brought any documentary proof on record to show that she is the sole proprietor of M/s. Verma Jewellers, her assertion that she is the sole proprietor of M/s. Verma Jewellers should not be believed, however in my considered opinion it is being rightly contended by the Ld. Counsel for complainant that this issue has already been decided finally by the Ld. Sessions Court in its order dt. 25.02.03 and therefore this issue is not open to this court to decide afresh. The order of the Ld. Session Court dt. 25.03.03 has clearly given a finding that the complainant is the sole proprietor of M/s. Verma Jewellers and according to me the Ld. Session Judge did not leave this issue open for evidence. In such circumstances, now that the accused has not preferred any appeal against the said order he can not be allowed to re-open this issue before me. Thus the contention of the defence that the complaint be dismissed as non maintainable can not be upheld.
12) The second contention of the Ld. Defence Counsel is that 8 the complainant has miserably failed to prove that the cheque in dispute was issued for any consideration. He contends that the various discrepancies in the statements of the complainant given by her in this court and that given by her during the proceedings in case FIR No. 548/97 clearly show that the complainant has taken false stands and has filed this complaint only to harass the accused. Ld. Defence Counsel has submitted that the defence of the accused as narrated by him in his statement recorded u/s 313 Cr. P. C. should be believed in the facts and circumstances of the case. Ld. Defence Counsel has relied upon the judgment of the Hon'ble Supreme Court reported as M/s. Narayana Menon vs State of Kerala and Anothers, 2006 (2) Bankmann 199. In this judgment after discussing the various aspects of the provisions of Section 138 NI Act and Section 118 NI Act it has been held that "Once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence".
It has been further held in the said judgment that:
"the standard of proof evidently is pre-ponderance of probabalities. Inference of pre-ponderance of probabilities can be drawn not only from the material on records but also by reference to the circumstances upon which he relies."
13. The circumstances that are being relied upon by the 9 defence in support of its assertion that the cheque in dispute was not issued for any consideration and infact was stolen by the husband of the complainant from the factory of the accused are as follows:
i) Ld. Defence Counsel has submitted that there are, on record three different statements given by the complainant in support of her version and it is being rightly contended that a comparison thereof clearly brings out the falsity of her stand. First of these statements was given by the complainant on 20.10.95 during the proceedings of FIR 548/97 . The complainant was duly confronted with the statement given during defence evidence - in this statement the complainant has categorically deposed that the brother of the accused namely Shiv Kumar had purchased only one gold chain from her - this statement is totally contrary to the two statements that she has given in this court. Both in the pre-
summoning evidence and post summoning evidence the complainant has deposed before this court that brother of accused had purchased five gold chains from her. In my opinion the complainant has failed to clear this discrepancy. Infact during her cross examination that was conducted on 24.12.04, the complainant had stated before the court that she can produce the receipt of the chains that were purchased from her by the brother of the accused - pursuant to this statement Ld. Predecessor of this court had directed her vide order dt. 24.12.04 that she can produce this receipt on the next date of hearing. However a perusal of record shows that when the complainant was again cross examined on 05.08.05, she failed to produce this receipt. Clearly therefore 10 the accused has been able to raise a valid doubt over the assertion of the complainant that cheque in dispute was issued for consideration.
ii) Second very material discrepancy which appears on record is the date on which, according to the complainant the accused issued cheque in dispute. According to the averments made in the complaint and in the pre-summoning evidence recorded in court on 22.11.96 the complainant has stated that it was on 01.03.95 the accused had come to her house and had settled her account by giving her cheque in dispute. If this averment of the complainant is taken to be correct, then it is to be taken that after the incident of 06.12.94, on the basis of which the FIR No. 548/97 was registered against the brother of accused, the accused persons had approached the complainant for settlement. However in the cross examination the complainant categorically states that after the incident of 06.12.94 she had no talks at all with the accused. The categorical admission of the complainant in her cross examination clearly falsifies the averments made by the complainant that cheque was handed over to her on 01.03.95.
14. It is even otherwise also not in the natural course of human conduct that the accused and his brother would approach the complainant and settle her account when the complainant was actively pursing with the criminal complaint and prosecuting the brother of accused for criminal trespass and criminal intimidation.
15. In view of the above discrepancies in the evidence of the 11 complainant the accused has been able to prove by the preponderance of probabilities that he did not issue the cheque in dispute to the complainant against any consideration and thus inview of the circumstance of the present case it is to be held that the defence raised by the accused is much more probable. I therefore hold that the accused is not guilty of the offence u/s 138 NI Act. Accordingly he stands acquitted. His bail bond stand cancelled, surety stands discharged, endorsement if any on the documents be cancelled as per rules. File be consigned to Record Room.
Announced in the open court
on 29.06.2007 (Anu Grover Baliga)
Metropolitan Magistrate
New Delhi