Delhi District Court
Shri Subhash Chandra vs . Shrimati Assma on 28 June, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
SHRI SUBHASH CHANDRA VS. SHRIMATI ASSMA
CC No. 462199/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 462199/2016
(2) Name of the complainant : Shri Subhash Chandra
S/o Sh. Bastiram
office: F-2/459A, Main Road
Ratiya Marg, Sangam Vihar,
New Delhi-110062
(3) Name of the accused, : Smt. Aasma
parentage & address w/o Sh. Sameer Khan
R/o Block-I, Gali No. 5, House
No. 296, Sangam Vihar,
New Delhi-110080
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquitted
(7) Date of Institution : 07.05.2016
(8) Date on which reserved for
judgment : 25.05.2018
(9) Date of Judgment : 28.06.2018
SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016
Page 1 of 11
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the complainant gave loan of Rs. 2,90,000/- on dated 30.11.2015 to the accused and accused assured to return the same within 60 days. Accused had issued two cheques bearing no. 069534 and 069532 for Rs. 1,50,000/- or Rs. 1,40,000/- on dated 17.02.2016 and 20.02.2016 both drawn on Oriental Bank of Commerce, Tugalkabad Institutional Area Batra Hospital Branch, New Delhi in favour of complainant whicih on presentation were dishonoured vide memo dated 25.02.2016 with the remark "Funds Insufficient". Thereafter, complaint sent a legal notice dated 22.03.2016 by way of speed post to the address of accused and despite that payment of the cheques in question were not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881
2. In the pre-summoning evidence, affidavit by way of evidence Ex- CW1/1 was filed by the complainant. In his affidavit ExCW1/1, the complainant reiterated all the averments made in his complaint and relied on documents which are original cheques ExCW1/A and Ex. CW-1/B, their original return memos Ex. CW-1/C and Ex. CW-1/D, Office copy of Legal notice mark CW-1/E, postal receipt Ex. CW-1/F and the tracking report Ex. CW-1/G and complaint is Ex. CW-1/H. After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 01.08.16.
SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 2 of 11 3
3. Accused persons appeared pursuant to issuance of summons and notices U/s 251 CrPC were served upon the accused Smt. Ashma vide order dated 28.01.2017 to which she pleaded not guilty and claimed trial. Accused stated that she has no concern with the complainant and Seema has taken loan from Sachin Gupta and complainant is recovery agent of Mr. Sachin Gupta. The Seema has deposited her property papers at the time of taking loan but Mr. Sachin her including the cheque in question. Accused further stated that she is ready to return the loan of Rs. 40,000/- taken from the complainant and she has no legal liability to pay the cheques amount.
4. Thereafter, upon oral request of accused U/s 145(2) NI Act, accused was given an opportunity to cross examine the complainant and his witnesses vide order dated 28.01.2017.
Complainant was duly cross examined by Sh. A.K. Mishra, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 21.03.2017.
5. Thereafter, the plea of accused Aasma w/o Sh. Sameer Khan, u/s 313 r/w 281 CrPC was recorded vide order dated 04.05.2017, wherein, all material existing on record including the exhibited documents were put to the accused. Accused stated that Seema who is her neighbour had taken loan from one person namely Sachin and has deposited her property papers. She alongwtih Ms. Jyoti were guarantor for the said Seema in the said loan and sh has given security cheuqes for the guarantee purpose. Later on Sachin had taken house of Seema and despite that had not returned his cheques. Accused further SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 3 of 11 4 stated that he has not received any legal demand notice and she is innocent and she has been falsely implicated in the present case. She does not have any legal liability to pay the cheques amount to the complainant. Accused further stated that complainant is the servant of Sachin Gupta and at the instance of Sachin Gupta, false case has been filed against her.
Accused further expressed her desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined herself as DW-1 and Smt. Jyoti as DW-2 and Smt. Seema as DW-3. All the witnesses cross examined by Sh. Subhodh Kumar Yadav, Ld. Counsel for accused. No other defence witness was produced by the accused and thus, DE was closed vide order dated 13.02.2018 and matter was fixed for final arguments.
7. At the stage of final arguments, complainant has not appeared. Complainant to appear despite opportunities being given on 28.02.2018, 22.03.2018, 12.04.2018, 27.04.2018, 09.05.2018 and therefore, the right of the complaiant to address final arguments was closed vide order dated 09.05.2018. However, complainant has not even filed written submission despite opportunity being given. Thus, no final arguments have been addressed by the complainant.
8. Sh. Jitender Mishra, Ld. Counsel for accused has filled written submissions on behalf of accused on 18.05.2018 and by way of written submissions accused has prayed for acquittal.
9. Case file perused meticulously.
10. In order to prove an offence under Section 138 NI Act, following SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 4 of 11 5 ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
11. In the case at hand, accused has disputed receipt of legal notice and her legal liablity to pay the cheques amount to the complainant while issuance of cheques in question and their dishonour are not in dispute.
12. Now, this court shall deal with the defences of accused one by one.
12A. FIRST DEFENCE AS TO NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that she did not receive the legal notice of demand dated 22.03.2016 Mark-CW-1/E. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 22.03.2016 Mark-CW-1/E was sent to the accused through registered AD on 22.03.2016 on the correct address of accused and receipt of which is ExCW1/F. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 5 of 11 6 given. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A4. Further, in the present case, accused herself has filed copy of legal notice sent to the accused by the same counsel on behalf of Sachin Gupta on the same address on which complainant has sent the legal notice.
Therefore, in view of the above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated 22.03.2016 Mark CW-1/E was served on the accused.
12B. SECOND DEFENCE AS TO LEGAL LIABILITY B1. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 6 of 11 7 consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39). B2. It is the case of the complainat that he has given loan of Rs. 2,90,000/- to the accused and accused issued cheques in question to discharge her legal liability. On the other hand as per accused she has not taken any loan from the complainant and her neighbour Ms. Seema has taken loan from one person namely Sachin Gupta and accused alongwith Jyoti (sister of Seema) have stood as a guarantor for Seema and Sachin has taken entire cheques book of the accused on the pretext of taking security cheque.
B3. Admittedly, no written document or agreement was executed qua the loan transaction.
B4. Now to prove her defence, accused has cross examined the complainant. Now during cross examination, complainant has deposed that:-
"It is correct that the cheque in question was not filled in my presence. The cheque in question were handed over to me on different dates but I cannot remember the exact date at present. The cheque in question was given by accused to me after 2 months from taking of loan amount. I have given loan to the accused in February 2015 and accused has issued the cheque after 02 SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 7 of 11 8 months of taking the loan.
The accused has informed me the date of marriage of her daughter but at present I do not remember the exact date. Vol. I remember that accused told me that marriage is fixed for somewhere in March 2015. I generally do not issue the bills on sale of goods."
However, in the complaint, complainant has taken contradictory averments and has stated that the accused approached to the complainant for a personal loan of Rs. 2,90,000/- (Rupees two lakh ninty thousand only) in the date, month and year of 28.11.2015 in connection with his urgent business needs and promised to refund the loan within 60 days.
Thus, the complainant has taken contradictory stand as to the time period when loan was granted as well as to the time period when cheques have been issued by the accused and also as to the purpose of loan taken by the accused.
B5. Further, accused has examined herself as DW-1 and DW-1 deposed that :-
"I know the complainant as he was working with Sh Sachin Gupta. Complainant was employee in the office of Sachin Gupta. I consider Sachin Gupta as my son. Seema is the sister of my daughter in law/Jyoti. Seema mortgaged her property documents with Sachin Gupta in year 2013. Seema took loan from Sachin Gupta for marriage of her younger sister. Sachin Gupta requested me to give two cheques as security for the said mortgage. Sachin himself tore two cheques from my cheque book as I do not know how to tear the cheques and I requested Sachin to do the same on my behalf. Complainant was also present there. Sachin Gupta took away my whole signed cheque book which I had sent SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 8 of 11 9 through my daughter Shadma. I and my daughter in law Jyoti went to collect my cheque book from Sachin Gupta and Sachin Gupta said "you do not believe upon me, I am like your son" and Sachin Gupta did not return my cheque book to me. Sachin also took security cheques from Kalpana, Jyoti & me and signatures of Kalpana & Jyoti were taken on the mortgage deed as a witness. Several times, I myself requested for return of cheque book from Sachin Gupta. The said property, in lieu of documents was mortgaged was grabbed by Sachin Gupta. I have never taken any loan from the complainant as well as Sachin Gupta".
Further, accused has examined Seema as DW-3 who has duly corrobrated the testimony of accused and has deposed that :-
"I had taken the loan of Rs3.50 lacs from Sachin in the year 2013 for the marriage of my sister. I had gone to office of Sachin at Sangam Vihar along with Jyoti, Kalpana and accused ie Aasma at the time of taking loan. At that time, Jyoti and Kalpana had given cheques as surety to Sachin. Thereafter, at the time of repayment of loan along with interest, Sachin told me that I should give my property as the amount has become huge. Therefore, I had given my flat ie 1365, Gali No. 10, Govindpuri, ND to Sachin and thus, I discharged my all liability. Thereafter, case was filed against the accused but accused had not taken any money from the complainant. I had already discharged my liability and false case has been filed against accused. Accused had given entire cheque book to Sachin at the time of giving loan to me but despite repayment of loan, Sachin had not returned cheques of either of us ie cheques of Kalpana, Jyoti and myself".
Further, accused has examined the sister of Seema namely Jyoti who has also corrobrated the testimony of accused as well as the testimony of SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 9 of 11 10 Seema and has deposed that :-
"My sister namely Seema had taken the loan from Sachin Gupta amounting of Rs. 3.5 lacs at the rate of 7% per month. At the time of taking loan I alongwith Kalpana and Aasma were present. We had signed and thumb impression on some blank papers. Some blank signed cheques had been taken by Sachin Gupta as a guarantor by us. After the settle the matter between Seema and Sachin Gupta before the Court. I alongwith Aasma and Kalpana reached at the office of Sachin Gupta for return the blank documents and blank signed cheques but he did not return the same and lastly he had filed a case u/s 138 NI Act against the Aasma. Aasma never took the loan from Sachin Gupta".
The testimony of all the three DWs have remained unrebutted and thus, the accused has proved her defence. Further, no reason is coming forward why Seema /DW-3 would come forward to give deposition against the complainant and even against her own self.
13. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by proving her defence, whereas the complainant has failed to prove his case beyond all reasonable doubts. Resultantly, this court finds the accused not guilty for the punishable U/s 138 N I Act. Hence, she stands acquitted.
14. Further, accused is directed to furnish bail bonds and surety bonds in the sum of Rs. 20,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon her. SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 10 of 11 11
15. Put up for funishing bail bond u/s 437 (A) Cr. PC on 30.06.2018 at 2.00 pm. Digitally signed by Announced in the open court PRABH PRABH DEEP KAUR on 28.06.2018 DEEP Date:
KAUR 2018.06.29
16:20:15
+0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 11 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi SHRI SUBHASH CHANDRA VS. SHRIMATI AASMA CC No. 462199/2016 Page 11 of 11