Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 17, Cited by 0]

Delhi District Court

Vide This Judgment I Shall Dispose Of The ... vs Unknown on 22 June, 2015

      IN THE COURT OF MS.MEENU KAUSHIK, METROPOLITAN MAGISTRATE, 
                       NORTH­WEST, ROHINI, DELHI

Unique ID No.  02404R0094242012
CC No. 437/1/12

Rita Maini
W/o Sh. H.C.D. Maini
R/o B­1/23, Sector­11,
Rohini, Delhi­110085

Through her husband/Authorised Representative
Sh. H.C.D. Maini
S/o Sh. S.C.D. Maini                                      ............Complainant

                                        Versus

Vikram Tiwari
S/o Late Sh. K.M. Tiwari
R/o B­8/58­59, Ground Floor,
Sector­11, Rohini,
New Delhi­110085.                                         .............Accused

                                 JUDGMENT

(1)     Name of the complainant,        Rita Maini
        parentage & address             W/o Sh. H.C.D. Maini
                                        R/o B­1/23, Sector­11,
                                        Rohini, Delhi­110085

(2)     Name of accused,                Vikram Tiwari
        parentage & address             S/o Late Sh. K.M. Tiwari
                                        R/o B­8/58­59, Ground Floor,
                                        Sector­11, Rohini,
                                        New Delhi­110085

(3)     Offence complained of or 
        proved:                         138 N.I. Act

(4)     Plea of accused:                Pleaded not guilty


(5)     Date of institution of case:    04.04.2012




Rita Maini  v. Vikram Tiwari            CC No. 437/1/12                             1
 (6)     Date of reserve of order:          20.05.2015


(7)     Date of Final Order:               22.06.2015


(8)     Final Order:                       Convicted

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:­ That the accused is very much known to the husband of the complainant and accused convinced her husband to earn more interest. Therefore, at the recommendation of her husband, the complainant advanced a loan of Rs. 1,00,000/­ to the accused through a cheque bearing no. 00009 dated 14.03.2011 drawn on Kotak Mahindra Bank, M2K, Rohini, New Delhi which was encashed by the accused on the same date. The accused also executed an agreement dated 14.03.2011 in favour of the complainant. Accused acknowledged the payment of the loan amount of Rs. 1,00,000/­ in cash and agreed to pay the said amount alongwith interest at the rate of 3.5% per month repayable in twenty monthly installments of Rs. 8,500/­ each. For ensuring the principle amount, accused also gave an undated cheque bearing no. 385447 for an amount of Rs. 1,00,000/­ drawn on Oriental Bank of Commerce, ECRGC Institute of Research Center, Sector­5, Rohini, New Delhi. The accused continued to pay the interest till the month of October, 2011, however, thereafter he stopped to pay the interest. The said cheque was presented by the complainant for encashment on 08.02.2012 and the same was returned back dishonoured vide return memo dated 09.02.2012 with the reasons "funds insufficient". Thereafter, complainant having no other resort, but issued statutory demand notice dated 27.02.2012 through Speed post and registered AD within stipulated period. The said legal notice was duly received by the accused and reply to the same was also given by him through his counsel.

Rita Maini v. Vikram Tiwari CC No. 437/1/12 2

Thereafter, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.

3. In her pre summoning evidence, complainant examined herself on affidavit. She reiterated the contents of complaint and placed on record special power of attorney in favour of her husband exhibited as Ex. CW­1/1, statement of account of complainant as Ex. CW­1/2, loan agreement as Ex. CW­1/3, cheque bearing no. 385447 for an amount of Rs. 1,00,000/­ dated 07.02.2012 drawn on Oriental Bank of Commerce, ECRGC Institute of Research Center, Sector­5, Rohini, New Delhi, as Ex. CW­1/4, cheque returning memo dated 09.02.2012 as Ex. CW­1/5, statement of joint account of complainant and her husband as Ex. CW­1/6, legal demand notice dated 27.02.2012 as Ex. CW­1/7, postal receipt as Ex. CW­1/8, AD card as Ex. CW­1/9 and reply of legal notice as Ex. CW­1/10.

4. Accused was summoned for an offence punishable under Section 138 of Negotiable Instruments Act and notice under Section 251 Cr. P.C. for this offence was framed upon him on 18.12.2012 to which he pleaded not guilty and claimed trial and he took defence that few cheques given by him to the husband of the complainant are misused by him.

5. In her post notice evidence, complainant examined two witnesses including herself as CW­1. She tendered her affidavit towards examination in chief and during cross examination, she stated that stamp paper whereupon document Ex. CW­1/3 was prepared and brought by the accused on 14.03.2011. Loan was advanced by her on the same date. Document Ex. CW­1/3 was already typed when it was brought before her. She accepted that in agreement Ex. CW­1/3, it is mentioned in para 1 that loan amount was given in cash. She voluntarily stated that she gave cheque to the accused which was got encashed by him on the same day. She also stated that she does not know if the income from the interest paid by the accused was shown by her in her income tax returns or not. She further stated that name and date in the cheque in question were filled by her husband.

Rita Maini v. Vikram Tiwari CC No. 437/1/12 3

CW­2 Sh. Atul Singh, from Kotak Mahindra Bank brought the statement of account of the complainant Ex. CW­2/1 (colly).

6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to the accused to which he stated that he never took any loan from the complainant and from her husband. The husband of the complainant was working as Manager in Muthoot Finance and told him that he could get the loan sanction from different banks at lower rate of interest and hence, he handed over some blank cheques including cheque in question to the husband of the complainant for commission/security purpose. The husband of the complainant did not get any loan sanction to him and misused the cheque in question. He denied for any liability towards the complainant.

7. Accused examined three witnesses including himself as DW­1 in his defence evidence and stated that he met the husband of the complainant for the first time in February, 2011 as husband of the complainant was working as Manager in Muthoot Finance. The husband of the complainant offered him for better loan options from the banks on lower rate of interest. For arranging loans from different banks, the husband of the complainant asked him to complete certain documentary requirements and to give few blank signed papers, blank signed stamp papers and blank signed cheques and photocopies of ID proof. The husband of the complainant assured him to use blank signed cheques for the commission purpose only against the loan. He stated that Ex. CW­1/3 bears his signatures at point B2 & B3 and same were taken by the husband of the complainant when the said papers were blank. The cheque in question Ex. CW­1/4 bears his signatures, however, same was also taken as blank signed cheque by the husband of the complainant. He stated that he met the complainant for the first time in the court only. The husband of the complainant gave him original cheque Ex. CW­2/2 to get it encashed for him as he was busy in his work. During cross­examination, he accepted that he received the payment Rita Maini v. Vikram Tiwari CC No. 437/1/12 4 against Ex. CW­2/2. He voluntarily stated that he gave the said payment to the husband of the complainant on his instructions. He also accepted that he gave 10­12 cheques to her husband of the complainant in his sound mind and without any pressure. During evidence, accused placed documents Ex. DW­1/1(colly) & Ex. DW­1/2(colly) on record which are the certified copies of the complaint filed by nephew of husband of the complainant and his friend against the accused.

DW­2 Ms. Aarti Tiwari supported the version of the accused. DW­3 Sh. K.G. Sharma, from Muthoot Finance stated that now a days Muthoot Finance does not take any blank cheque from the applicant at the time of sanctioning of loan.

8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length. Written arguments were also submitted on behalf of both the parties.

9. Following submissions were made on behalf of the complainant:­ ● That loan was advanced by the complainant to the accused as accused was well known to husband of the complainant.

● That the cheque in question was given towards the legally enforceable debt. Reliances placed upon by the complainant on Y. Sreelatha @ Roja v. Mukanchand Bothra.

● That cheques in question were returned dishonoured with the reason "insufficient funds" and hence accused commenced an offence under Section 138 NI Act.

● That all the ingredients of the offence under Section 138 NI Act are fulfilled by the complainant.

● That presumption under Section 118 & 139 lies in favour of the complainant. Reliances placed upon by the complainant on Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 ● That during trial, accused has accepted that all the cheques in question were issued by him.

Rita Maini v. Vikram Tiwari CC No. 437/1/12 5

● That the accused has also accepted during trial that all the cheques in question were issued by him in his full senses.

● That signatures on the cheques in question are accepted by the accused. Reliances placed upon by the Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 S.C.C. 16 & Rangappa v. Sri Mohan A.I.R. 2010 SC 1898. ● That accused executed loan agreement with the complainant regarding loan taken by him.

● That all the payments were acknowledged by the accused. ● That sources of advancement of loan is established by the complainant as payment was routed through bank Account.

● That during trial defence taken by the accused is that the cheque in question and stamp papers were signed by him in blank.

● That the accused is an educated person and no question arises that he gave blank cheques and blank signed stamp papers to the husband of complainant for procurement of loan.

● That cheque in question was issued by him for consideration.

10. Per contra, following submissions were made on behalf of the accused:­ ● That as per the complainant, there was commercial transaction between her and the accused.

● That as per the complainant, accused had to pay interest over the loan taken by him and he paid also till October, 2011.

● That the complainant has not mentioned as how the interest on loan was repaid by the accused.

● That on Ex.CW1/3, there are no signature of accused on first two pages and only third page contains the signature of the accused. ● That the husband of the complainant took several blank signed papers and cheques on the pretext of arranging loan for the accused and same papers are misused by husband of the complainant in Ex.CW1/3. ● That no written notice was given by the complainant to accused before presentation of cheque.

Rita Maini v. Vikram Tiwari CC No. 437/1/12 6

● That no question is asked from the accused as to how the blank signed cheques and papers were given by the accused.

● That as per the agreement, loan was given in cash but in complaint, it is mentioned that loan was given by way of cheque.

● That accused has relied upon the following authorities:­

1. Shajahan T.M. v. P.J. Abraham, Puthenpurayil House & Anr. 2012 (2) DCR 40 (Ker).

2. Vipul Kumar Gupta v. Vipin Gupta 2013 (2) BC 36B (CN).

3. Virender Singh v. Laxmi Narain & Anr. 2007CRi,L.J. 2262.

4. Nanda (Smt.) v. Nandkishor 2010 (1) DCR 618 (Bom).

5. Anil Kumar Haritwal & Anr. v. Alka Gupta & Anr. AIR 2004 SC 3978.

6. C. Antony v. K.G. Raghavan Nair 2003 (1) SCC 1.

Same are perused and taken into consideration.

11. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first:­ As present complaint is under Section 138 of Negotiable Instruments Act, there are three ingredients as follows held by the Hon'ble Supreme Court of India in Krishna Janardhan Bhat(supra).

Three ingredients of Section 138 of the Act, viz.:

(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre­supposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.

The proviso appended to the said Section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.

12. The Act raises two presumptions in favour of the holder of the cheque i.e. Rita Maini v. Vikram Tiwari CC No. 437/1/12 7 Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein 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(a) and Section 139 of the said act are read as under:

Section 118 Presumption 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, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;

Section 139. presumption in favour of holder:­ It shall be presumed, unless the contrary 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.

13. For the offence under Section 138 N.I. 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 end 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(supra).

14. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption, but this does not preclude the person against whom the Rita Maini v. Vikram Tiwari CC No. 437/1/12 8 presumption is drawn from rebutting it and proving the contrary.

15. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case, the accused has admitted his signatures on the cheque in question and on the third page of document Ex.CW1/3. Reference has been made to Judgment of Apex Court in Rangappa(Supra) 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."

The defence taken by the accused is that he gave several cheques and blank signed papers and stamp papers to procure loan from husband of the complainant but no loan was arranged by husband of the complainant for him. Accused in the present case is an educated person. Hence, it is difficult to believe that he would have given several blank signed papers and cheques for securing loan. No police complaint is made and no intimation was given by the accused to the bank before filing of the present case for non returning of the cheques and blank signed papers by husband of the complainant. Police complaint made by the accused against husband of the complainant is not proved by the accused. Accused has also failed to prove that his some cheques were stolen from Muthoot Finance. Accused accepted that he encashed the cheque Ex.CW1/2. He stated that the cash received by him for the said cheque was handed over by him to husband of the complainant. No receipt and documentary proof is given by the accused regarding the same. Same defence is taken by the accused in other cases which are filed by husband of the complainant against the accused. It is difficult to believe that accused each and every time handed over the cash to husband of the complainant and that too when husband of the complainant did not provide a single penny of loan to him. Further, husband of the complainant was manager in Muthoot finance and it is difficult to believe that he would have taken help of accused for getting cheques encashed. No criminal case is filed by the accused Rita Maini v. Vikram Tiwari CC No. 437/1/12 9 against husband of the complainant for misusing his blank signed papers. Written Police complaint filed by accused regarding the stolen cheques from Muthoot Finance is also not proved by the accused.

DW­3 Sh.K.G.Sharma stated that now a days no cheques are taken by Muthoot Finance for granting loan. This does not mean that Muthoot finance never took any cheque for providing loan. Accused has not adduced any other evidence to prove that Muthoot finance never took any cheque for providing loan. In view of the above, it comes out that accused has failed to prove his defence. Complaints filed by nephew of the complainant and his friend against the accused are not relevant for deciding the present case. Further, complaint case under Section 138 of the Act is not barred in case of loan advanced for earning interest. Reliance is placed upon Kajal v. Vikas Marwah as decided by Hon'ble High Court of Delhi on 27.03.2014. The defence taken by the accused seems to be afterthought.

16. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebutt the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has proved her case beyond reasonable doubt.

17. As the complainant has proved her case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.

18. Let the accused be heard on point of sentence. 

ANNOUNCED IN THE OPEN COURT                                  (MEENU KAUSHIK)
             nd
TODAY i.e, 22  JUNE, 2015                            METROPOLITAN MAGISTRATE
                                                 ROHINI DISTRICT COURTS/ DELHI




Rita Maini  v. Vikram Tiwari                   CC No. 437/1/12                                         10
                                                    ­­1­­
            IN THE COURT OF MS.  MEENU KAUSHIK, MM, NORTH­WEST, 
                                    ROHINI COURTS, DELHI. 
CC No. 437/1/12
Rita Maini v. Vikram Tiwari
27.06.2015
                                        ORDER ON SENTENCE
Present:         Complainant in person. 
                 Convict with Ld. counsel Sh. Gurmeet Singh Hans.

Arguments heard on the point on sentence. It is stated by the Ld. counsel for the convict that convict is the only breadwinner in his family and is having family consisting of two minor children, his wife and old age mother. It is further submitted that convict is presently earning only about Rs. 20,000/­ per month and he is first time offender, therefore lenient view may be taken.

Per Contra, complainant has submitted that the matter pertains to the year 2012 and relates to loan transaction and the convict has defrauded her as cheque in question was dishonored. It is further submitted by the complainant that convict is man of means and he has handsome monthly income. He is wrongly submitting in the court that he is having monthly income of Rs. 20,000/­ only.

I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2012 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2012 and cheque bouncing cases are on high rises and releasing the convict on probation would not have deterrent effect in the society.

Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs. 1,30,000/­ (Rs. One lakh thirty thousand Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 6 months.

Rita Maini v. Vikram Tiwari CC No. 437/1/12 11

­­2­­ At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been moved on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of 30 days from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 10,000/­ with surety of like amount. Requisite bail bonds furnished. Same are accepted till 27.07.2015.

Copy of this order be given to the convict free of cost. 

Announced in the open                                                   (Meenu Kaushik)
court on 27.06.2015                                               MM (N/W)/Rohini  Courts, Delhi. 




Rita Maini  v. Vikram Tiwari                      CC No. 437/1/12                                        12