Delhi District Court
Cc No. 543307/2016 Irshad Ahmad vs Vipin Kumar 1/8 on 29 February, 2020
IN THE COURT OF MS. TAPASYA AGARWAL, MM05 (NI ACT)/
CENTRAL/THC/DELHI
In case of:
Irshad Ahmed
S/o Sh. Shamshad Ahamad
R/o H. No. 1829, Gali Sui Walan,
Near Masjid Pathan Wali,
Daryaganj, Delhi .............. Complainant
VERSUS
Vipin Kumar
S/o Rajender Kumar
R/o H. No. 125, Gali no. 5,
ABlock, (Near Umesh Vardiwala),
Brijpuri, Delhi
Also at
C1/356, Yamuna Vihar,
Delhi .............. Accused
JUDGMENT
a) Sl. No. of the case : 543307/2016
b) CNR no. : DLCT020153422016
c) Date of institution of the case : 28/08/2016
d) Offence complained of : 138 NI Act
e) Plea of the accused : Pleaded not guilty
f) Arguments heard on : 18/12/2019
g) Final order : Acquitted in respect of cheque no.
371291.
Convicted in respect of cheque no.
371292
h) Date of Judgment : 29/02/2020
CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 1/8
BRIEF STATEMENT OF FACTS FOR THE DECISION:
As mandated U/s 355 (i) of Code of Criminal Procedure, 1973
1. Vide this judgment, I shall decide the present complaint filed U/s 138 Negotiable Instrument Act by the complainant against the accused.
Factual Matrix:
2. The case of the complainant is that in the month of January, 2013 complainant gave loan of Rs. 15 lakhs to the accused on the assurance that accused will gave share in the profit earned by his firm and further assured that he will return the amount after one year. Accused in discharge of his liability, issued the cheques in question bearing nos. 371291 dated 15/04/2016 for Rs. 2 lakhs & 371292 dated 15/06/2016, both drawn on Punjab National Bank. Accused assured that the said cheques shall be encashed on its presentation. Complainant presented the abovesaid cheques but the same returned unpaid with remarks "instrument outdated" & "funds insufficient" vide dishonour memos dated 15/07/2016 & 22/07/2016. Thereafter, complainant got served a legal notice dated 25/07/2016 upon accused, but no payment was made by the accused. Hence, the present complaint was filed.
3. Cognizance of offence U/s 138 Negotiable Instrument Act was taken accordingly. Accused was summoned. Presummoning evidence was led by way of an affidavit filed by the complainant. The complainant exhibited 07 documents Ex. CW1/1 & Ex. CW1/2 (original cheques), Ex. CW1/3 & Ex. CW1/4 (return memos), Ex. CW1/5 (legal notice), Ex. CW1/6 (postal receipts) & Ex. CW1/7 (tracking report).
CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 2/8 Thereafter separate notice explaining accusation against the accused was put to him to which he pleaded not guilty and claimed trial. Accused took the defence that the cheques in question were not issued by him and the same were with his company partner Mr. Waqar who misused the same.
4. Thereafter, on the basis of defence revealed by the accused he was given the right to crossexamine the complainant's witnesses. The complainant only examined himself as CW1 in order to prove his version and he was crossexamined.
5. Thereafter, vide order dated 25/11/2019, statement of accused is dispensed with. Accused has not led defence evidence. Subsequently final arguments were heard.
6. I have gone through the record, perused the evidence and authorities cited. Legal Position and Complainant's Evidence:
7. Before proceeding further to reflect upon the defence and evaluation of evidence, the foremost check point is whether the facts averred by the complainant fulfill the basic requirement of section 138 for constituting an offence U/s 138 NI Act. For the same a quick run through the legal provision becomes indispensable. The following elements come out on perusal of section 138 NI Act.
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
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(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
8. Being cumulative it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed offence U/s 138 NI Act.
9. Evaluating the facts of the present case in the light of the above provision this court first considers as to whether the complainant has prima facie proved the issuance of cheque by the accused towards the legal liability in favour of the complainant from the account maintained by him, so as to constitute an offence U/s 138 NI Act. To carve out a prima facie case the complainant has filed on record original cheques bearing Ex. CW1/1 & Ex. CW1/2. The said cheque was presented to the bank within a period of three months from the date on which it was drawn and was returned dishonoured for the reasons "instrument outdated" & "funds insufficient". The return memos bearing the fact of dishonour of cheques in question have been exhibited by the complainant as Ex. CW1/3 & Ex. CW1/4. The complainant then sent a legal notice dated 21/09/2016 i.e. within the period of statutory requirement of 30 days from the date of receipt of information of dishonour. The original postal receipt of the legal demand notice have been filed as Ex. CW1/6. Despite this the accused failed to make payment of the cheque amount.
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10. Further more the presumption under section 118(a) & 139 of the NI Act imperatively come into play as soon the execution of the cheque is admitted by the accused or is proved by the complainant. Coming to the case in hand the accused in his plea of defence has admitted having issued the cheque in question and also his signatures thereon. The above facts suffice in raising the presumption U/s 118(a) & 139 NI Act in favour of the complainant. With these admissions i.e. the cheque in question belongs to the accused and the signatures on the cheque being admitted by the accused, the presumption of cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration arises in favour of the complainant by virtue of section 118(a) and section 139 of NI Act.
In "Rangappa Vs Sri Mohan" 2010 V AD (SC), three Judge Bench of Hon'ble Supreme Court held that section 139 raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested.
11. When the presumption is raised in favour of the complainant, the burden is shifted on the accused to disprove the case of the complainant by rebutting the presumption raised in favour of the complainant. Being the rule of reverse onus, it is duty of the accused to prove that he does not owe any liability towards the complainant. The accused can displace this presumption on the scale of preponderance of probabilities and lack of consideration or a legally enforceable debt need not be CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 5/8 proved beyond or reasonable doubt as is the general rule in criminal cases. The accused has to make out a fairly plausible defence which is acceptable to the court. This the accused can do either by leading his own evidence or by raising doubt / demolishing the material or evidence brought on record by the complainant. With this in mind, this court now proceeds to discuss the defence of the accused. Appreciation of evidence:
12. In his plea of defence U/ s251 Cr. PC accused while admitting his signatures on the cheque in question and receipt of legal demand notice has contended that he did not give cheque in question to the complainant. Instead the relevant cheque was with his partner namely Waqar who has misused the cheque and that he had no liability towards the complainant. Despite opportunities accused did not led defence evidence.
13. Now as the case is of alleged misuse of cheque of the accused as per his defence. It is only prudent that accused should have file a police complaint against the said Mr. Waqar or he should have at least sought an explanation from him. However, no whisper of any police complaint has been brought on record. The accused has not been able to explain satisfactorily as to how the cheque reached possession of the complainant. As the accused has not led defence evidence and his statement as per plea of defence does not inspire confidence of this court, accused has failed to prove his defence by leading his own evidence.
14. Now, it is to be seen whether accused has been able to rebut the presumption in favour of the complainant by demolishing the version of the complainant. I have CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 6/8 carefully gone through the crossexamination of the complainant. It has been admitted by the complainant during his crossexamination that cheque no. 371291 has been returned as dishonoured for the reason "instrument outdated / stale". It is well settled law that an offence U/s 138 NI Act is not maintainable if the cheque is returned with the remarks "stale / outdated". Thus with regards to cheque no. 371291 present complaint not being maintainable is hereby dismissed.
15. Moving further in order to weigh the liability of the accused qua cheque no. 371292, complainant has stated in his crossexamination that he does not remember exact date on which the alleged sum of Rs. 15 lakhs was given to the accused. Neither did he execute any agreement with the accused. Undoubtedly, both such details are relevant in order to fully establish the case of the complainant. However, mere absence of such details without demolishing the financial capacity of the complainant or the source / mode of funds is not sufficient to rebut the presumption raised in favour of the complainant.
16. Further in his crossexamination as well as during the course of final arguments counsel for accused has argued that the legal demand notice Ex. CW1/3 does not bear signatures of the complainant and hence ingredients of section 138 NI Act regarding sending of legal demand notice are not fulfilled. This argument does not bear any merit as the legal demand notice Ex. CW1/3 has been signed by the counsel for the complainant and specifically mentions that it has been drafted at the instruction from the complainant. There is no requirement that the legal demand notice U/s 138 NI Act CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 7/8 must be signed by complainant himself. Nothing else comes out from a reading of the complainant's evidence.
17. Thus, it is held that the accused has not been able to demolish the version of the complainant to rebut the plea in favour of the complainant.
18. In view of the aforesaid facts and circumstances, with regard to cheque no. 371291 present complaint not being maintainable is hereby dismissed. Accused Vipin Kumar stands acquitted in respect of cheque no. 371291. Further in respect of cheque no. 371292, this Court is of the opinion that the complainant has proved his case beyond reasonable doubt and the accused has failed to rebut the presumption u/s 118(a) and 139 of N.I. Act. Accordingly, the accused Vipin Kumar is convicted in respect of cheque no. 371292 for the offences punishable u/s 138 of Negotiable Instruments Act, 1881. Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date: 2020.03.02 14:40:35 +0530 Announced in the Open Court (Tapasya Agarwal) on 29/02/2020 MM05(NI Act), (C)/THC/DELHI 29/02/2020 CC No. 543307/2016 Irshad Ahmad Vs Vipin Kumar 8/8