Delhi District Court
Sunil Kumar Tomar vs . Dukhharan Baitha Cc No. 12614/18 Page ... on 13 May, 2019
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-016431-2018
CC No. 12614/18
Sunil Kumar Tomar @ Sunil Kumar
S/o Sh. Jai Singh
R/o A-33, Shiv Vihar,
Vikas Nagar, Uttam Nagar,
New Delhi-110059
............Complainant
Versus
Dukhharan Baitha @ Gopal
S/o Sh Munni Lal Baitha
R/o B-3, Vikas Kunj, Barma Road,
Vikas Nagar, Uttam Nagar,
New Delhi-110059
& Also at
Rahul Tent House,
Shop No-31, Sunday Market,
Near Tyagi Chowk, Shiv Vihar,
Uttam Nagar, New Delhi-110059
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 10.04.2018
(4) Date of conclusion of arguments: 13.03.2019
Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 1 of 9
(5) Date of Final Order : 13.05.2019
(6) Final Order : Convicted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he and accused have friendly relations since last many years. It is alleged that accused approached complainant for financial help of Rs. 1,30,000/- in May 2016, for a period of six months and after considering the friendly relationship with the accused, the complainant advanced friendly loan of said amount to the accused on 27.05.2016 for a period of six months. It is alleged that on 30.10.2017, accused gave hand written acknowledgment of said debt and also issued one post dated cheque of Rs. 1,30,000/- in discharge of his loan liability i.e. cheque in question bearing no. 043211 dated 30.01.2018 drawn on Allahabad Bank, Vikas Puri, Delhi to complainant towards repayment of loan, with an assurance of its encashment. After due date of cheque in question, the complainant presented the cheque in his account maintained at Canara Bank, Vikas Puri, Delhi, which was returned with the remarks "Funds Insufficient" vide bank return memo dated 26.02.2018. Thereafter, complainant served a legal notice dated 15.03.2018 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused . Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 2 of 9 Ex. CW-1/A. He reiterated the contents of complaint and placed on record, Aadhar Card of complainant as Ex. CW-1/1 (OSR), hand written acknowledgment of debt dated 30.10.2017 as Ex. CW-1/2 (OSR), original cheque bearing no. 043211 dated 30.01.2018 drawn on Allahabad Bank, Vikas Puri, Delhi as Ex. CW-1/3, cheque returning memo dated 26.02.2018 as Ex. CW-1/4, legal demand notice dated 15.03.2018 as Ex. CW-1/5, receipts of speed post and tracking reports as Ex. CW-1/6 (colly.)
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 09.10.2018 to which he pleaded not guilty and claimed trial. He admitted his signature on the cheque in question, and also admitted filling in all the remaining details in the cheque. He also admitted receipt of legal demand notice. He admitted to taking of loan of Rs. 1,30,000/- from complainant on 27.05.2016. however, he stated that he had taken the loan on interest. He owed an amount of Rs. 1,30,000/- to complainant. He had given the cheque in question as fully filled up cheque to complainant towards said payment. However, due to financial difficult he could not repay the loan to complainant. He further stated that he was willing to pay Rs. 1,30,000/- to complainant.
5. Thereafter, it was noted that in the notice U/s 251 Cr.P.C, accused had merely pleaded not guilty and had taken no specific defence. Accused had admitted his liability qua the amount of cheque in question and also cheque in question was issued in discharge of said liability. He also admitted receipt of legal demand notice. No plea of defence was disclosed by the accused. Therefore, in view of the decision of the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State & Anr., Crml. MC No. 1996/2010, DOD 28.07.2010, the right of accused to cross examine the complainant was closed vide court order.
6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 3 of 9 the stand taken by him in answer to notice U/s 251 Cr.P.C. He further stated that he had repaid interest of Rs. 4500/- per month to complainant for about three years and issued the cheque in question towards the principal amount. Accused did not prefer to lead any evidence in his defence and vide his separate statement to this effect, the defence evidence was closed.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that accused never gave reply to the legal demand notice. He also argued that the accused did not produce any written document or receipt regarding the alleged repayment of loan. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, on behalf of accused, Ld. Counsel reiterated the submissions made by him in his plea of defence at the time of framing of notice under Section 251 Cr.P.C and in his statement under Section 313 Cr.P.C. furthermore, Ld. Counsel for accused argued that accused was an illiterate person and had taken only loan of Rs. 1 lac from complainant. He had paid Rs. 4500/- per month to the complainant for about three years. However, complainant misused the cheque in question. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 4 of 9 as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 5 of 9 is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C and his statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 6 of 9 complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
14. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in part discharge of liability, after he had advanced loan of Rs. 1,30,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
15. The principle defence taken by the accused as brought out from his statement U/s 313 Cr.P.C, is that he had taken the loan of Rs. 1,30,000/- from complainant on interest. He repaid interest of Rs. 4500/- per month to complainant for about three years. After that he issued cheque in question as fully filled up and signed cheque to complainant towards the payment of principal amount. However, due to financial difficulty he could not repay the amount to complainant.
16. However, the said defence version as put forth by the accused does not bring out any credible defence whatsoever. Accused has admitted to taking of loan of Rs. 1,30,000/- from complainant on 27.05.2016 and also issuing cheque in question to complainant towards repayment of said amount. In this regard the submission of Ld. LAC for accused at the stage of final argument that accused was an illiterate person and had taken only loan of Rs. 1 lac from complainant, clearly appears to be an afterthought and bereft of any merit. The only defence taken by the accused is that he repaid Rs. 4500/- per month to complainant for three years. However, perusal of evidence shows that said version of accused is not supported by any material on record. The accused did not produce any written receipt or document regarding said monthly payment of interest to the complainant. In fact the accused did not lead any defence evidence at all.
Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 7 of 9
17. The cheque in question has been dishonored vide cheque returning memo dated 26.02.2018 for reason "Funds Insufficient" (Ex. CW-1/4) and not for any other reason. There is no explanation or evidence as to why, if the cheque was not returned after repayment of substantial amount of loan, stop payment instructions were not issued by accused to bank. It is also not the case of accused that he had filed any complaint against the complainant or given him any written notice protesting the wrongful retention or misuse of his cheque. In light of the above, the version of accused that he had repaid Rs. 4500/- per month to complainant as interest on the loan, is not credible, as the same is not supported by any evidence on record.
18. The accused has also admitted receipt of legal demand notice under section 138 of the Act. Also it is worth noting that the address of the accused as mentioned in legal demand notice is B-3, Vikas Kunj, Barma Road, Vikas Nagar, Uttam Nagar, Delhi, which is the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C and his bail bonds. Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 8 of 9 statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
19. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
20. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
21. Let the convict be heard on quantum of sentence.
22. Copy of Judgment be supplied to the convict free of cost.
Digitally signed MRIDUL by MRIDUL
GUPTA
GUPTA Date: 2019.05.13
14:54:09 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 13th MAY 2019 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Sunil Kumar Tomar Vs. Dukhharan Baitha CC No. 12614/18 Page no. 9 of 9