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Delhi District Court

Complaint Cases/1134/2005 on 19 May, 2011

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   IN THE COURT OF MS. SMITA GARG, ASCJ/MM(NW) ROHINI 
                       COURTS, DELHI
CC No. 1134/09/05   
ID No. 02404R1304322005 

JUDGMENT

1. Name of the complainant : Smt. Kamlesh Jain W/o Sh. Madal Lal Jain R/o C­12/323, Yamuna Vihar, Delhi­110053

2. Name & address of the accused: 1) Sham Sher Ali Proprietor of M/s Metro Fashions R/o WZ­17, Rawan Wali Gali, Tattar Pur, Delhi

2) M/s Metro Fashions E­11, Kalkaji, Krishna Market, Near Desh Bandhu Gupta College New Delhi

3. Offence complained of or proved : 138 NI Act

4. Plea of the accused : Pleaded not guilty

5. Date of institution of the case : 11.03.2005

6. Final Judgment : Convicted

7. Date of such Judgment : 19.05.2011 BRIEF REASONS FOR THE DECISION OF THE CASE:­

1. Accused Shamsher Ali, Proprietor of M/s Metro Fashions is facing trial for the commission of offence U/s 138 Negotiable Instruments Act, 1881.

2. The case of the complainant is that the accused, who is running the business under name and style of M/s Metro Fashions, is known to her for a long time through her husband Shri Madan Lal Jain. The accused borrowed a friendly loan of 2 Rs. 30,000/­from the complainant in March, 2002 for one month only. The loan amount was advanced by the complainant through cheque bearing no. 309901 dated 13.03.2002 for a sum of Rs. 30,000/­ drawn on Punjab National Bank, Chandni Chowk, Delhi. After the completion of one month, when the complainant asked for payment of the loan amount, the accused expressed his inability to repay the loan amount and agreed to pay interest @ 2 % per month on the loan amount and also handed over a cheque bearing no. 529416 dated 05.01.2005 for a sum of Rs. 30,000/­ drawn on Bank of India, Rajouri Garden, New Delhi to the complainant as security. When the complainant presented the said cheque for encashment, it was returned unpaid for the reason "

account closed" vide return memo dated 01.02.2005. The complainant sent a legal notice on 10.02.2005 through registered AD post and UPC to the accused with a request to pay the cheque amount. The accused sent a reply dated 21.02.2005 denying his liability. Thus the complainant was constrained to file the present complaint.
3. Notice for the commission of offence U/s 138 Negotiable Instruments Act was framed against the accused on 18.07.2009 to which he pleaded not guilty and claimed trial.
4. The complainant entered into the witness box as CW­1. She led evidence on affidavit and supported the averments of the complaint. She proved the cheque no. 529416 dated 05.01.2005 as Ex. CW­1/1, cheque return memo dated 3 01.02.2005 as Ex. CW­1/2, legal notice dated 10.02.2005 as Ex. CW­1/3, registered AD postal receipt as Ex. CW­1/4, UPC receipt as Ex. CW­1/5, and reply dated 21.02.2005 sent by the accused as Ex. CW­1/6.
5. Statement of the accused U/s 313 CrPC was recorded on 25.02.2010 wherein all the incriminating evidence and documents on record were put to him. He admitted his signature on the cheque in question but denied his liability towards the complainant. He stated that the husband of the complainant was employed as a salesman with him and that in a theft which took place in his shop all his belongings lying therein were taken away. He stated that he used to keep certain signed cheques for use in emergency in his shop and he did not know as to how the cheque in question came into the possession of the complainant and have been misused by her. According to the accused, there was a dispute between him and the husband of the complainant despite the fact that he had cleared all the employment dues of the husband of the complainant and had documents to show that the money transactions between him and the husband of the complainant had been cleared. He stated that he had also lodged a complaint with SHO P.S­ Kalkaji against the complainant and her husband for manhandling him and extending threats to him.
6. In his defence, the accused examined himself as DW­1. In his deposition, he reiterated the stand taken by him in his 4 statement under Section 313 CrPC. He deposed that the husband of the complainant worked as salesman in his shop at Connaught Palace for about 1 ½ months. He had taken a loan of Rs. 60, 000/­ from the husband of the complainant. The loan amount was returned by him vide Ex. DW­1/1. Even after returning the loan amount, the complainant and her husband visited his shop and asked him to pay more money since they had some documents signed by the accused in his possession and threatened to misuse the same. The husband of the complainant took him in a park near his shop at Kalkaji where 2­3 associates of the husband of the complainant were also present and all of them threatened the accused to pay Rs. 1 lac to the complainant or face dire consequences. The said persons also hit the accused in the face in respect of which a police complaint ( Ex. DW­1/2 ) was lodged. After the said complaint, the complainant and her husband apologized to him whereupon no action was taken by him. He deposed that in a theft in his shop at Connaught Place, all his belongings were stolen and he was not aware as to which of his belongings including the cheque in question were in possession of the complainant and her husband and that the cheque had been stolen in the theft committed at his shop.
7. I have heard the counsel for the parties and perused the record.
8. In order to bring home the guilt of the accused under section 138 of Negotiable Instruments Act, the complainant is required 5 to show:­
1) that the cheque in question was issued by accused towards discharge of either whole or part of a debt or liability,
2) that the cheque was presented within the period of validity
3) that the cheque so issued by the accused had been returned unpaid
4) that a legal notice was served upon the accused demanding the payment of cheque amount
5) that the accused failed to pay the cheque amount within statutory period despite the receipt of notice.

6. In the case on hand, admittedly, the parties are know to each other. Though in para no­3 of his reply dated 21.02.2005 ( Ex. CW. 1/7) to the legal notice, the accused has specifically denied that he had borrowed a friendly loan of Rs. 30,000/­ from the complainant but in his deposition, the accused has admitted that he had taken a loan of Rs. 60,000/­ from the complainant and her husband. It is pertinent to mention that a sum of Rs. 30,000/­ was advanced by the complainant and the remaining amount of Rs. 30,000/­ was advanced to the accused by the husband of the complainant. The husband of the complainant has also filed a complaint case under Section 138 Negotiable Instruments Act against the accused which is also pending in this court. Admittedly, the cheque in question bears the signature of the accused. According to the complainant, the cheque in question was issued to her by the accused towards the repayment of the loan amount of Rs. 30,000/­. The accused 6 has raised the defence that the cheque in question was not issued by him to the complainant since the entire loan amount of Rs. 60,000/­ had already been repaid by him. In support of his defence, the accused has placed on record a handwritten statement of account ( Ex. DW­1/1 colly ) stated to have been prepared by the husband of the complainant and Ex. DW­1/1A stated to have been prepared by one of his employee Sh. Shailender. In my considered opinion, the above documents do not help the case of the accused. In fact, Ex. DW­1/1 corroborates the case of the complainant to the effect that the accused had agreed to pay interest @ 2 % per month on the loan amount since the said document contains the entries w.e.f 10.01.2002. Further, as per the said document, a sum of Rs. 44,740/­ was due and outstanding against the accused as on 10.05.2004. The accused has admitted that in his cross examination, that he had not given any money to the complainant except that mentioned in Ex. DW­1/1. As far as EX. DW­1/1A is concerned, admittedly, it was prepared by the employee of the accused and that too after the institution of the present complaint. Hence, the above documents placed on record by the accused can not be relied upon.

The accused has raised a further defence that the cheque in question was signed in blank and kept by him in his shop for use in emergency in his absence but the said cheque alongwith some other belongings were stolen from the shop in a theft. Though the 7 accused has averred that he had lodged a complaint in respect of the said theft but neither the copy of the said complaint nor any witness from the concerned police station has been examined by him in support of his defence. In fact, in his cross examination, the accused has stated that he did not remember the date when the complaint in respect of the alleged theft was lodged by him with the police. It is hard to believe that a person in whose shop a theft had been committed would not even remember the date of lodging the complaint with police. According to the accused, the husband of the complainant had stolen the cheque in question from his shop and had also extended threats to misuse the same in respect of which a complaint was lodged in P.S­ Kalkaji in the year 2004. Besides the fact that the alleged theft had taken place in the shop of the accused in the year 2002, a perusal of the above complaint (Ex. DW­1/2 ) shows that the accused had merely alleged therein that some of his signed documents were in possession of the husband of the complainant. The cheque in question does not even find mention in the complaint. Further, had the cheque in question been actually stolen from his shop as alleged by the accused, he would have certainly instructed his banker to stop the payment of the cheque in question. But, in the present case, the cheque was returned unpaid on presentation for the reason " account closed". In the light of above discussion, it is evident that the defence raised by the accused is devoid of any substance and does not inspire confidence.

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7. Since the accused has failed to raise any probable defence to rebut the statutory presumptions in favour of the complainant, keeping in view the testimony of the complainant and the documents proved on record, the guilt of the accused stands proved beyond reasonable doubt and he is, accordingly, convicted for the commission of offence U/s 138 Negotiable Instruments Act, 1881.

Let he be heard on the point of sentence on 24.05.2011. 

Announced in the open court                                ( Smita Garg)
on 19.05.2011                                           JSCC/ASCJ(NW)
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CC No.   1134/09/05


19.05.2011
          Pr. Complainant in person.

Accused present on bail with proxy counsel Sh. Baljeet Singh.

Vide separate judgment announced in the open court, accused has been convicted for the commission of offence U/s 138 Negotiable Instruments Act, 1881.

Let he be heard on sentence on 24.05.2011.

ASCJ/MM(NW) Delhi:19.05.11