Delhi District Court
Complaint Cases/418/2008 on 9 February, 2015
IN THE COURT OF MS.MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTHWEST, ROHINI, DELHI
Unique ID No. 02404R0589032008
CC No. 418/1/08
Sanjiv Kumar
S/o Sh. Mahipal Singh
R/o 31A, Village Palla,
Delhi110036. ............Complainant
v.
Satpal
S/o Sh. Tara Chand,
R/o 9, Village Palla,
New Delhi110036. .............Accused
JUDGMENT
(1) Name of the complainant, Sanjiv Kumar
parentage & address S/o Sh. Mahipal Singh
R/o 31A, Village Palla,
Delhi110036
(2) Name of accused, Satpal
parentage & address S/o Sh. Tara Chand,
R/o 9, Village Palla,
New Delhi110036
(3) Offence complained of or proved: 138 N.I. Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 10.09.2008
(6) Date of reserve of order: 14.01.2015
(7) Date of Final Order: 09.02.2015
(8) Final Order: Acquitted
Sanjiv Kumar v. Satpal 1/8
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 approached the complainant for a friendly loan as he was in dire need of money of Rs. 5,25,000/. The complainant gave a sum of Rs. 5,25,000/. The accused gave a post dated cheque of Rs. 5,25,000/ in favour of the complainant bearing no. 816741 dated 01.02.2008 drawn on State Bank of India, Palla Branch, Delhi110036 for the discharge of his liability. The complainant presented the said cheque for encashment to his bank, but the same got dishonoured with the remarks "Stop Payment" vide returning memo dated 04.06.2008. Thereafter the complainant communicated the accused about the fact of dishonour and requested him to pay the said cheque amount, however, the accused requested the complainant that he is running short of money and promised to pay the said cheque amount within 5 days of its dishonour, but the accused did not pay a single penny since then and the complainant was constrained to serve a legal notice dated 30.06.2008 upon the accused, which was also duly served upon him. The accused sent reply dated 15.07.2008 to the said legal notice dated 30.06.2008 through his counsel. The accused again requested the complainant to present the aforesaid cheque once again and assured the complainant that the same would not be dishonoured this time as he has already withdrawn the request for stop payment of the aforesaid cheque from his banker. The complainant again presented the said cheque with his banker but the same was returned unpaid again with the remarks "Stop Payment" vide returning memo dated 31.07.2008. The complainant again issued a legal notice dated 12.08.2008 demanding the above said amount within 15 days from the receipt of the said legal notice. However in spite of the receipt of the said legal notice the accused has failed to make payment and sent reply dated 27.08.2008. Thereafter complainant finally has filed the present complaint case with the submission that Sanjiv Kumar v. Satpal 2/8 accused be summoned, tried and punished according to law.
3. In his pre summoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record original cheque bearing no. 816741 dated 01.02.2008 for Rs. 5,25,000/ drawn on State Bank of India, Palla, Delhi110036, which is exhibited as Ex. CW1/1, cheque returning memos dated 04.06.2008 & 31.07.2008 as Ex. CW1/2 & Ex. CW1/6 respectively, legal demand notice dated 30.06.2008 as Ex. CW1/3, postal receipt as Ex. CW1/4, Reply of legal notice dated 30.06.2008 as Ex. CW1/5, legal notice dated 12.08.2008 as Ex. CW1/7, postal receipt as Ex. CW1/8, Acknowledgment card as Ex. CW1/9, Reply of legal notice dated 12.08.2008 as Ex. CW1/10.
4. Accused was summoned for an offence punishable u/s 138 of Negotiable Instruments Act and notice u/s 251 Cr. P.C. for this offence notice was framed upon them on 13.01.2010 to which he pleaded not guilty and claimed trial. He stated that he does not have any liability but the cheque bears his signatures.
5. In his post notice evidence, complainant examined only himself as CW1 and adopted his affidavit towards examination in chief and during cross examination, he stated that the plot measuring 170 sq. yards Khasra No. 71 at Village Palla was sold by him to Smt. Sangeeta, wife of accused vide sale deed dated 26.12.2007. He stated that he has seen the true copy of the said sale deed executed by him and same is Ex. CW1/A1 and he purchased the aforesaid plot from one Sh.Imran Khan. He accepted that Sh. Javed Khan had filed a civil suit bearing no. 1892/01 in respect of the plot in question against Sh.Imran Khan and him. He denied the suggestion that he took Rs.5,25,000/ from the accused to settle the dispute of the said plot. He accepted that the original receipt dated 26.12.2007 Ex. CW1/A3 bears his signature and thumb impression at point A & B respectively and the another receipt dated 26.12.2007 Ex. CW1/A4 also bears his signature and thumb impression at point A & B respectively.
Sanjiv Kumar v. Satpal 3/86. 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 replied that the cheque in question was given towards settlement of dispute regarding plot Khasra No. 71, Property no. 13, Village Pall, Jhangola No. 1, Delhi and the cheque was presented prematurely and the case is still pending and dispute has not been settled so far. After that the matter was fixed for defence evidence.
7. Accused has not examined any witness in his defence despite given sufficient opportunity and finally defence evidence was closed at the request of accused.
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length.
9. It is submitted by Ld. counsel for the complainant: ● That both the complainant and the accused reside in the same village, namely Palla.
● That both had close relations.
● That on 26.12.2007 one plot of 170 yards was sold to the accused and it was registered in the name of wife of the accused.
● That the accused fraudulently got signatures of the complainant on some blank stamp papers on 26.12.2007, when the complainant was executing sale deed in favour of wife of the accused.
● That in January 2008, request of loan for one month was made by the accused.
● That being resident of the same village and for having cordial relations, the complainant advanced the loan to the accused.
● That the accused gave cheque of Rs.5,25,000/ to the complainant towards repayment of loan.
● That on 26.12.2007 one blank stamp paper was got signed by the accused from the complainant for the purpose of executing the sale deed.
Sanjiv Kumar v. Satpal 4/8● That the complainant accepted the signatures on Ex.CW1/A3 and Ex.CW1/A4, however complainant was not aware of the contents of the stamp paper.
● That in the stamp papers the name of the court is not mentioned and the case number is not given.
● That it is also mentioned that the complainant shall not present the cheque till the disposal of the case.
● That the matter of concern is that why the complainant would agree with the term that he won't present the cheque in question till the disposal of case as by the time of disposal of case the cheque would be outdated. ● That the sale deed has already been executed and hence complainant is not liable for any dispute over the property.
● That the complainant has never appeared in any court regarding the said property.
10. Per contra, it is submitted on behalf of the accused: ● That as per the complainant the accused took loan of Rs.5,25,000/ from the complainant.
● That the date of loan is not mentioned by the complainant in his complaint. ● That two legal notices were given by the complainant and hence the present complaint is not maintainable.
● That the complainant has accepted his signatures on Ex.CW1/A3 and Ex.CW1/A4.
● That the other case is still pending regarding the said property in Tis Hazari Court.
● That no loan was taken by the accused from the complainant.
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 Sanjiv Kumar v. Satpal 5/8 in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325.
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. 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:
Sec. 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;
Sec. 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 Sanjiv Kumar v. Satpal 6/8 liability.
13. For the offence under sec. 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 v. Bratindranath Banerjee [(2001) 6 SCC 16].
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 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, however the defence raised by the accused is that the cheque in question was given by him to settle the dispute over the plot purchased by him from the complainant. In support of his defence accused confronted the complainant with two documents Ex.CW1/A3 and Ex.CW1/A4. The complainant has accepted his signatures and thumb impressions on the said documents but it is contended by the complainant that the accused fraudulently took his signatures on the two documents. Another contention raised by the complainant is that the matter of concern is that why the complainant would agree with the term that he won't present the cheque in question till the disposal of case as by the time of disposal of case the cheque would be outdated. During crossexamination complainant has accepted that one civil suit is pending regarding the said property. The contention of the Sanjiv Kumar v. Satpal 7/8 complainant that the accused fraudulently took his signatures on the two documents Ex.CW1/A3 and Ex.CW1/A4 does not have any worth as any prudent person never sign the blank documents or sign the documents without going through them for the transaction of property. After going through documents Ex.CW1/A3 and Ex.CW1/A4 it seems it was agreed between the parties that complainant would present the cheque in question only after resolution of dispute and the dispute has still not been resolved. In addtion to this no date of advancement of loan is mentioned by the complainant. Any document in support of loan is also not placed on record by the complainant. All these facts collectively raises doubt over the version of the complainant.
16. Hence in the light of above discussion it comes out that the complainant has failed to prove his case beyond all the reasonable doubts and accused has successfully rebutt the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'preponderance of probabilities' and inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies as the same was held by Hon'ble Supreme Court in Krishnajanardhan Bhat(supra). Accordingly accused is acquitted for the offence under section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
th
TODAY i.e, 9 day of February, 2015 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Sanjiv Kumar v. Satpal 8/8