Delhi District Court
Manjeet Singh vs . Sunil Soodan Cc No. 4994471/16 1/8 on 16 January, 2020
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
CC No. 4994471/16
Sh. Manjeet Singh
S/o Sh. Surat Singh
R/o H. No. 68, Village Bindapur,
Uttam Nagar,
New Delhi-110059.
............Complainant
Versus
Sh. Sunil Soodan
Proprietor of M/s Shakti Enterprises,
at E-53, Chanankya Place,
Part-I, Gali No. 27,
Uttam Nagar,
New Delhi-110059.
.............Accused
JUDGMENT
(1) Name of the complainant, : Sh. Manjeet Singh
parentage and address S/o Sh. Surat Singh
R/o H. No. 68, Village Bindapur,
Uttam Nagar,
New Delhi-110059.
(2) Name of accused, : Sh. Sunil Soodan
parentage and address Proprietor of M/s Shakti Enterprises,
at E-53, Chanankya Place,
Part-I, Gali No. 27,
Uttam Nagar,
New Delhi-110059.
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 1/8
(5) Date of institution of case : 24.03.2014
(6) Date of reserve of order : 19.12.2019
(7) Date of Final Order : 16.01.2020
(8) Final Order : Conviction
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 and the accused were having friendly relations. The accused approached the complainant for a friendly loan of Rs. 1,20,000/- and the same was given to him for a period of two years. In January 2014, the accused issued a cheque bearing no. 984872 dated 09.01.2014 for a sum of Rs.1,20,000 drawn on Canara Bank, Ganesh Nagar, New Delhi in favour of complainant. On presentation, the said cheque was returned unpaid with the remarks "Insufficient Funds" vide memo dated 15.01.2014. On request of the accused, the complainant presented the cheque again but it got dishonoured for the reasons funds insufficient vide returning memo dated 29.01.2014. Thereafter, complainant sent a legal demand notice dated 11.02.2014 through registered post. Despite service, the accused had failed to make the payment of the amount covered by cheque in question within the prescribed period. Hence, the present complaint.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record cheque bearing No. 984872 dated 09.01.2014 for a sum of Rs.1,20,000/- in favour of the complainant as Ex. CW1/A, c heque returning memos dated 15.01.2014 and 29.01.2014 as Ex. CW-1/B and Ex. CW-1/C respectively, legal notice dated 11.02.2014 as Ex. CW1/D, postal receipt as Ex. CW-1/E, registered AD card as Ex. CW1/F and copy of statement of account is Mark CW1/G (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 19.05.2014 to which he pleaded not guilty and claimed trial. He Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 2/8 took the defence that he had kept three blank signed cheques and had filled amount of Rs. 1,20,000/- and Rs. 80,000/- in two of those cheques. He stated that in the year 2010, the complainant had stolen his cheques from his factory and misused the same. He denied his liability towards the complainant. He denied receiving of legal notice.
5. The order sheet dated 16.07.2014, reflects that the complainant was examined, cross examined and discharged. The testimony of the complainant recorded on the said date is also on record. After conclusion of final arguments, clarifications were sought from both the counsels regarding the said testimony. It was apprised by both the counsels that the said testimony was recorded in the case titled as Manjeet Singh vs. Sunil Soodan in CC No. 4994480/16 (old CC No. 5711/14) and due to inadvertence, the evidence of the complainant recorded on 16.07.2014 has been placed on record in the present case. It was also submitted that they have no objection, if the said testimony is discarded for the purpose of decision of this case. Statements of both the parties were recorded in this regard on 19.12.2019 and in view of the same, the court is not relying upon the testimony of complainant recorded on 16.07.2014.
6. The complainant examined one bank witness namely Sh. Jot Singh from HDFC Bank, Janakpuri branch and he placed on record summoned record i.e. statement of account of complainant for the period from 30.10.2010 to 26.11.2014 Ex. CW2/A (OSR) (original was filed in CC no. 5711/14). He was not cross examined by the accused.
7. On 18.12.2014, the accused moved an application for recalling the complainant for cross-examination and the same was allowed by the court. The complainant deposed that on 25.05.2011, he had given friendly loan of Rs. 1.2 lakhs to the accused. He stated that the accused might have asked for the loan 5-7 days before the date of advancement of loan. He stated that the loan was given to the accused by him at his (complainant's) residence. He stated that he had withdrawn the said amount from his bank on the same day i.e. 25.05.2011. He stated that the loan was given to the accused for two years but no document/agreement was executed between them. He stated that the accused did not tell him the purpose for taking loan for him. He stated that the loan was given without any interest. He stated that prior to this, he had given a loan of Rs. 4.0 lakhs on 30.10.2010 for which an agreement was executed between him and the accused. He stated that the loan was given to the accused by him and no other person was present at that time. He stated that he had withdrawn Rs. 2.0 lakhs from his account. He stated that his monthly income is Rs. 25,000-30,000/-. He denied the suggestion that three cheques of the accused were stolen and he has misused the same.
Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 3/8
8. Thereafter, on 19.09.2016, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him but he denied all the allegations levelled against him. He preferred to lead defence evidence.
9. The accused examined himself as DW1 and deposed that in the year 2010, his 2-3 cheques were misplaced and he came to know about the same after 2-3 days. He stated that he used to keep 2-3 blank signed cheques in his drawer. He stated that he went to his bank and verbally apprised the clerk that he should be informed if cheque bearing no. 78, 77 are presented for clearance. He stated that in one cheque he had filled an amount of Rs. 1.2 lakhs and Rs. 80,000/- in other cheque. He stated that the complainant used to come to his office. He stated that on one day in the year 2010, complainant came to his office in his absence and remained there for considerable time. He stated that when he went back to his office, he checked his drawer and found that cheques were missing. He stated that in the year 2014, he received the legal notice from the complainant and gave reply to the same. He placed on record the copy of reply as mark DW1/1. He also filed complaint dated 14.09.2016 made to the police as Ex. DW1/2 (OSR) and complaint made to chowki Incharge, East Uttam Nagar on 30.10.2010 as Ex. DW1/3 (OSR). He also filed copy of counter point of cheque book as Ex. DW1/4 (OSR). He stated that the cheque in question has been misused by the complainant.
During cross-examination, he stated that he knows the complainant since the year 2009 . He stated that in total 3 cheques were stolen and last two digits of stolen cheques were 77 and
79. He could not recall the number of third cheque. He stated that he used to keep blank signed cheques in the drawer as his son or his accountant could use the same for any requirement in his absence. He stated that on 30.10.2010 at around 5.00-5.30 PM, he came to know about the loss of cheques and thereafter, he filed a police complaint. He volunteered to state that on the next day, he made written complaint to his bank. He admitted that he has not mentioned the cheque numbers in the complaint which he had made to the police regarding the theft. He stated that he has not followed the action taken by the police in respect of complaint regarding theft of his cheques. He admitted that the amount of Rs. 1.2 lakhs was already filled up when the cheque in question was stolen. He stated that he had issued stop payment instructions to his bank. He admitted that he cheque in question was dishonoured on the ground of insufficiency of funds. He denied the suggestion that he had not issued stop payment instruction to his bank. He denied the suggestion that he had filed a false complaint with police chowki, Uttam Nagar and the same does not bear any DD no. He could not recall the name of police official to whom he had handed over his complaint. He stated that he came to know about theft of cheque in question when he received the legal notice from the complainant. He admitted that Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 4/8 he had not named anyone in his police complaint. He volunteered to state that he had named the complainant as an accused in his complaint addressed to DCP in the year 2016. He admitted that one Rakesh Ahlawat had also filed a complaint u/s 138 of the Act against him. He denied the suggestion that he had deposed in the said complaint filed by Rakesh Ahlawat that the cheques were misplaced and not stolen. He was confronted with document Ex. DW1/C1 (i.e. the certified copy of his testimony in the case titled as Rakesh Ahalwat vs. Sunil Sudan) and his attention was drawn to point A to A1 and B to B1. He was asked that in his testimony in that case he deposed that in the year 2010, his 5-6 signed cheques had been misplaced but in the present case he deposed that his cheques were stolen. To this, he deposed that his cheques were stolen and not misplaced. He denied the suggestion that he had issued the cheque in question in discharge of legal liability. He denied the suggestion that he had taken loan of Rs. 1,20,000/- from the complainant on 25.05.2011. He admitted that he did not file any application u/s 156 (3) Cr.PC in any court for registeing FIR against the complainant for theft of cheques.
10. Thereafter, final arguments were addressed on behalf of both the parties.
11. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
12. 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 has 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.
Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 5/8
13. 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 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".
14. 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 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 v. Bratindranath Banerjee [(2001) 6 SCC 16].
15. 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 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.
16. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 6/8 defence.
17. In the present case, the accused has admitted that the cheque in question bears his signatures. 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."
18. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was not give in discharge of any liability is not sufficient to rebut the presumption of law.
19. The accused has taken the defence that he has not borrowed any amount from the complainant. He alleged that his 2-3 cheques including the cheque in question were misplaced in the year 2010 and he lodged a police complaint Ex. DW-1/3 (OSR) in PS East Uttam Nagar regarding the same. In the absence of cogent evidence, the bare statement of the accused stated that the cheque in question was misplaced by him can not be accepted as gospel truth. The accused has placed on record copy of his complaint Ex. DW-1/3 regarding his lost cheques. A bare perusal Ex. DW-1/3 would show that the accused has not mentioned the cheque bearing numbers of the lost cheques in the complaint. It is pertinent to note that the cheque in question was presented twice by the complainant and the reason for dishonour is funds insufficient. Thus, it shows that there is no intimation to the bank to stop the payment of cheque in question. The accused has not given any explanation as to why he has not issued stop payment instructions to the bank. He has also not explained as to why he remained silent when the complainant has misused his lost cheques. The accused is a business man and he is not expected to remain silent that too when a complaint has been filed against him on the basis of alleged stolen cheques. The accused has placed on record a complaint lodged against the complainant for misusing his cheques. However, there is nothing on record which shows that the accused has pursued his complaint Ex. DW1/2 (OSR) made on 14.09.2016 after the filing of present case. The complaints Ex. DW-1/2 and Ex. DW1/3 are vague complaints and thus, the defence of the accused that his cheque in question was lost does not inspire confidence of the court. Accused has cross-examined the complainant but nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unrebutted. No effective Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 7/8 defence has been put forth by the accused.
20. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
21. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
22. Let the accused be heard on quantum of sentence.
23. Copy of Judgment be supplied to the convict free of cost.
ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT)
TODAY i.e. 16th January, 2020 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Manjeet Singh vs. Sunil Soodan CC No. 4994471/16 8/8