Delhi District Court
Jitender Pal Kathuria vs K. Thomas on 12 October, 2020
IN THE COURT OF SH. GAURAV SHARMA : MM : NI ACT-03
(CENTRAL) : TIS HAZARI COURTS : DELHI.
Judgment pronounced today through VC after securing presence of
parties since in the interregnum courts were closed/functioning on
restrictive basis due to COVID Pandemic
CC No.511898/16
DATE OF INSTITUTION : 16.01.2008
DATE RESERVED FOR JUDGMENT : 18.03.2020
DATE OF JUDGMENT : 12.10.2020
IN THE MATTER OF:
Jitender Pal Kathuria,
S/o Sh. S. R. Kathuria,
R/o A-27, Meera Bagh,
Paschim Vihar, New Delhi.
........Complainant
VERSUS
K. Thomas
Prop. of M/s Amal Enterprises,
8/243, Chatarpur Hills, New Delhi.
M/s Amal Enterprises,
(Through its Prop.)
8/243, Chatarpur Hills,
New Delhi.
................Accused
JUDGMENT :-
a) Srl. No. of the case & Date of institution : 5233 & 16.01.2007
b) Date of commission of offence : after the 15th day of receiving of legal demand notice
c) Name of the complainant : Jitender Pal Kathuria
d) Name of the accused persons : Sh. K. Thomas Prop. of M/s Amal Enterprises
e) Nature of offence complained of : S. 138 NI Act
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted
i) Date of order : 12.10.2020 CC No.511898/16 page no.1 of 28 Jitender Pal Kathuria vs K. Thomas COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 JUDGMENT 12.10.2020
1. The accused K. Thomas, proprietor M/s Amal Enterprises, is hereby Convicted for the offence u/s 138 of the Negotiable Instruments Act, 1881.
2. The defence put forth by the accused has not been able to dent the narrative of the complainant one bit and has remained unsubstantiated in all material aspects throughout, entitling the complainant a favourable consideration.
Brief facts
3. The facts of the present complaint filed u/s 138 of the Negotiable Instruments Act, 1881 ("NI Act"), as disclosed in the complaint are that Mr. K. Thomas, proprietor of M/s Amal Enterprises ("accused") had been associated with Mr. Jitender Pal Kathuria ("complainant") and had developed friendly relations with him, both being businessmen. In first week of June, 2006, the accused approached the complainant to provide him a friendly loan for his business which had suffered losses and assured him to repay the same with in 3 months. The accused had in fact initially, demanded a loan of Rs.10,00,000/-, which the complainant could not manage but due to continuous demand and assurance on part of the accused, the complainant agreed and provided a loan of Rs.7,00,000/- to the accused in cash on 05.06.2006. For making repayment of the said loan, the accused issued a cheque of Rs.7,00,000/- bearing no.568183 dated 05.06.2006 drawn on Bank of Baroda, Vasant Vihar, New Delhi ("cheque in question") in favour of the complainant from the account of its proprietorship concern. As per CC No.511898/16 page no.2 of 28 Jitender Pal Kathuria vs K. Thomas the complaint, a promissory note was also executed by the accused in order to secure the loan given to him. Having undertaken to repay the loan however, and despite being reminded by the complainant as well, the accused did not do so on the expiry of three months. After repeated demands and requests by the complainant, the accused suggested him to deposit the cheque in question for encashment in the first week of November, 2006. The complainant did so on 04.11.2006 with his bank SBI, Ajmal Khan Road, New Delhi but the same was dishonoured with remarks "funds insufficient" vide cheque returning memo dated 06.11.2006. Thereafter, the complainant immediately contacted the accused and apprised him about the dishonour of cheque in question. The accused however, once again advised him to deposit the cheque in question again after a week and assured that the same will be honoured. Upon such assurance of the accused, the cheque in question was again deposited after a week on 15.11.2006 but this time the accused had already made "stop payment" instructions to his bank qua the cheque in question and it was dishonoured for the reason 'payment stopped by drawer' vide cheque returning memo dated 16.11.2006. Thereafter, the complainant sent a legal notice to the accused through his counsel on 02.12.2006 vide registered AD and UPC and the same was duly served. When the accused did not reply or made any payment, the present complaint came to be filed under section 138 of NI Act.
Proceedings Before Court
4. In the present complaint, upon the accused entering an appearance, notice of accusation was framed against them u/s 251 The Code of Criminal Procedure, 1973 ("CrPC") on 24.03.2009 to which he pleaded not guilty and claimed trial.
5. In support of his case, the complainant examined himself as CW-1 CC No.511898/16 page no.3 of 28 Jitender Pal Kathuria vs K. Thomas and he proved his affidavit in evidence as Ex.CW1/A; copy of promissory note Ex.CW1/1; Cheque bearing no.568183 dated 05.06.2006 for Rs.7,00,000/- drawn on Bank of Baroda, Vasant Vihar, New Delhi as ExCW1/2; Cheque return memo dated 06.11.2006 with h remarks "funds insufficient" as Ex.CW1/3; Cheque return memo dated 16.11.2006 with h remarks "payment stopped by drawer" as Ex.CW1/4; legal notice dated 02.12.2006 as Ex.CW1/5; Postal receipts as ExCW1/6 and ExCW1/7; UPC slip and AD ExCW1/8 and ExCW1/9 respectively; the complaint being ExCW1/B. The complainant was thereafter cross-examined at length. Subsequently, withness Ravi Verma was examined as CW2 and he was also duly cross examined. Finally, the complainant also examined bank witnesses Sudhir Kumar Gupta, Special Assistant, SBI, Ajmal Khan Road, Karol Bagh, as CW2 and R. C. Nuniwal, Manager, Bank of Baroda, Vasant Vihar as CW4. CE was closed on 01.04.2015.
6. Statement of accused u/s 313 CrPC was recorded on 24.05.2016, wherein the accused stated that he had issued the cheque in question to the complainant after duly signing and filling the same, albeit under coercion. He further stated that in such circumstances, he gave stop payment instructions to his bank on 06.06.2006 qua payment of the cheque in question, which were processed on 07.06.2006. He denied receiving legal demand notice. He further stated that he did not issue the cheque in question for liability of any loan since he had not taken any such loan of Rs.7 Lacs from the complainant. He further stated that he was forcefully picked up from his residence on 05.06.2006 and the cheque in question was therefore, taken under coercion from him about which he had also made complaint to PS Mehrauli and other senior authorities on 05.06.2006 itself.
7. Thereafter, accused Mr. K. Thomas examined himself as DW1 and CC No.511898/16 page no.4 of 28 Jitender Pal Kathuria vs K. Thomas tendered in evidence a complaint, which he had made to Commissioner of Police, marked to His Excellency Lt. Governor Delhi, DCP and ACP (South) alongwith SHO Mehrauli as ExDW1/A; the photocopy of the registered AD are Mark D-A and Mark D-B; the acknowledgement card of the said complaint is Mark D-C, D-D, D-E and D-F; the letter to the bank to stop the payment of the cheque in question as ExDW1/B; legal notice sent to the complainant as ExDW1/C. Accused was duly cross-examined and the defence evidence was thus closed on 27.02.2019.
8. Both the parties advanced final arguments and submitted written submissions as well. The complainant also relied upon certain judgments which form part of the written submissions. l have heard counsels for both the parties, perused the record and have gone through the relevant provisions of the law.
9. It must also be noted that during the course of the proceedings, after evidence in defence was led by the accused, the complainant has also filed an application under Section 340 CrPC, for initiating proceeding for perjury against the accused. The same was separately registered as MC 4/2019 on 15.03.2019. Arguments were heard on it together with the present matter and the same is decided vide separate order.
Findings
10.The constituent elements for an offence u/s 138 NI Act are well laid out in the section itself as well as through various pronouncements of the superior courts. The Hon'ble Apex Court summed them up in Himanshu v. B. Shivamurthy, (2019) 3 SCC 797 as below :
'The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the hol der in CC No.511898/16 page no.5 of 28 Jitender Pal Kathuria vs K. Thomas due course of the cheque, as the case m ay be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the recei pt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case m ay be, to the holder in due course of the cheque within fifteen days of the receipt of the sai d notice. It is only upon the satisfaction of al l the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.' (emphasis supplied) As can be seen, the law is fairly straightforward to comprehend with regards the ingredients of section 138 NI Act.
11. The defence raised by the accused is that the cheque in question was indeed issued by him to the complainant, duly filled, albeit under coercion. The coercion aspect shall be dealt with in the later part of the judgment, but what is germane to note at this stage is that the issuance of the cheque in question is admitted, having been duly filled in by the accused. In such a scenario, presumptions under Section 118 and 139 NI Act are raised against the accused that the cheque in question was issued in discharge of a valid debt or liability. Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418 noted at para 25 therein as follows :
'25. We having g noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner :
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
CC No.511898/16 page no.6 of 28 Jitender Pal Kathuria vs K. Thomas 25.2. The presumption under Section 139 i s a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by hi m or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely 25.4. That it is not necessary for the accused to come in the with ness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the with ness box to support his defence.' (emphasis supplied)
12.To put it succinctly therefore, presumptions u/s.139 read with Section 118 of the NI Act are raised against the accused on account of its admission of the issuance of the cheque in question.
It is thereafter upon him, to rebut such presumptions by adducing evidence. If upon preponderance of probabilities, the accused is able to do the same, onus once again shifts back on the complainant to prove its case beyond reasonable doubt. If the accused is unable to make out a probable defence, the complainant is entitled for a decision in his favour.
13.However, mere denial regarding existence of a valid debt shall not serve any purpose as far as the accused is concerned, the same being held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165. Quoting Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Apex Court had held at para 20 therein :
CC No.511898/16 page no.7 of 28 Jitender Pal Kathuria vs K. Thomas 'The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt di d not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist' (emphasis supplied)
14.In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 :
2001 SCC (Cri) 960 also, the Hon'ble Apex Court has stated in clear terms as to what kind of rebuttal evidence is required for the accused to negate the presumptions raised against him under the NI Act. It was opined that mere reasonable and probable explanation will not suffice. The same must be supported by proof. Relevant portion from para 24 of the said judgment may be reproduced herein :
' ........ In the case of a discretionary presumption the presumption if drawn m ay be rebutted by an explanation which "might reasonably be true and which is consi stent with h the innocence" of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one.
CC No.511898/16 page no.8 of 28 Jitender Pal Kathuria vs K. Thomas The words 'unless the contrary is proved' which occur in this provision make i t cl ear that the presumption has to be rebutted by 'proof' and not by a bare explanation whi ch is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted (AIR p. 580, para 12)' (emphasis supplied)
15.Considering the above, when the contentions raised by the accused as against those raised by the complainant are weighed under the facts and circumstances of the present case, they don't appear to favour the accused. What is required of the accused to rebut the presumptions raised against him is to lead credible defence supported by proof that can cast a doubt on the narrative of the complainant. In the present case, the accused produced several documents for probabalising his defence, however, none of them has been found to be cogent enough. In fact, as per the complainant, all of such evidence produced by the accused was fabricated, in relation to which a separate application u/s 340 CrPC was also moved by the complainant, as alluded to above already. Let us therefore examine the evidence on record on the touchstone of the ratio laid down in Basalingappa (supra), Kishan Rao (supra) and Hiten P. Dalal (supra) to see as to how did the accused fare.
16.The crux of the defence of the accused throughout the trial has been to offer a counter story to that of the complainants', as to the turn of events. His version has been that one Mr B M John was an employee of the complainant who had embezzled huge sums of money from his firm. As per the accused, he had never stood surety for/on behalf of Mr B M John and was in no way responsible CC No.511898/16 page no.9 of 28 Jitender Pal Kathuria vs K. Thomas for his acts. However, since both, him and Mr B M John were the natives of the same state of Kerala, the complainant believed that he was responsible for the acts of Mr B M John. That being so, after Mr B M John had embezzled the funds and fled, the complainant alongwith few other persons, had come to his house on the morning of 05.06.2006 and had taken him forcefully to its office/factory at Karol Bagh, in his car, meaning to say that he was in effect, abducted and taken away. Complainant and his accompanying people, in such circumstances, had found out his cheque book in the car and got him to sign the cheque in question, duly filled in, for an amount of Rs 7,00,000/-. Further, the accused also claims that at that time, the complainant had also obtained its signatures on blank papers, one of which was later misused as the promissory note Ex CW1/1. After having obtained the cheque and signatures on blank paper, the accused was allowed to go with the warning that if he tried to inform anyone about this incident, he and his family members will be liquidated. In such a scenario therefore, the accused returned back. (for brevity, these facts taken together shall be hereinafter referred to as "the alleged incident in question"). As per the accused, upon his returning back home, he immediately made complaint about the whole incident to the police authorities, viz. to Commissioner of Police and SHO PS: Mehrauli alongwith DCP and ACP (South). The accused also filed copy of such complaint Ex DW1/A, AD card of the said complaint as Mark D-C, D-D, D-E and D-F and photocopy of the registered AD as Mark A-D and D-B. Further, as per the accused, since the cheque in question had been forcibly taken by the complainant from him, he wrote a letter to its bank also instructing them to stop payment for the same being Ex DW1/B. Moreover, the accused also stated that in such circumstances, he also got issued a legal notice to the complainant, through his advocate, dated 10.06.2006, being Ex DW1/C demanding back the cheque in question as well as the CC No.511898/16 page no.10 of 28 Jitender Pal Kathuria vs K. Thomas blank paper on which the complainant had got his signatures. Finally, the accused also contended, that he had replied back to the legal notice issued by the complaint to him, however the same has not been filed on record.
17.As is evident from the above, two completely contrasting narratives were offered by bot the complainant and the accused, with no yin for a yang commonality between them, as it were. However, since by admitting to the issuance of the cheque in question, presumptions under Sections 118 and 139 NI Act stand raised against the accused, it is he, who has to discharge his burden of proof first, making out a probable defence in his favour, only after which the complainant would be required to prove its case beyond reasonable doubt. This can be done in two ways. One, either by showing contradictions in the complainant's version or that of its witnesses', or second, by proving his own case whilst leading defence evidence. On either of these occasions however, the accused was found wanting.
18.The complainant examined himself as CW1 and it was crucial for the accused to have brought out gaps in his cross examination. However, the complainant remained firm to his version as outlined in the complaint. In his cross examination, he stated that he had known the accused since quite some time. The complainant categorically denied the suggestion that the accused wasn't his friend. Though the complainant first stated that he had business relations with the accused, but thereafter clarified voluntarily that they had friendly relations. This is nothing contrary to what was stated in the original complaint as well, wherein which it was mentioned that the two parties had been associated for long and hence, were on friendly terms. In such a scenario, not specifically knowing the type of business of the accused, the date/month/year CC No.511898/16 page no.11 of 28 Jitender Pal Kathuria vs K. Thomas of visiting his office when asked by the Ld. Counsel for the accused, was not particularly damaging to the complainant's case. As against this however, what is instructive to note is that when the accused deposed as a defence witness, during his examination in chief, he was the one wo first completely denied knowing the complainant before the date of the incident in question, only to be caught off guard later, during his cross examination, when he himself stated and admitted knowing the complainant from before. He sort of outwitted himself by stating in his cross examination that the complainant had visited his house with one Mr B M John once prior to 05.06.2006, the date of the alleged incident in question. He went on to also concede that he must have wrongly stated in his evidence in chief that he did not know the complainant prior to 05.06.2006. This contradiction in the stand of the accused, and not that of the complainant, is very material to the competing versions of both the parties. This is so because instead of bringing out inconsistencies in the complainant's case for strengthening his defence, the accused was caught off guard himself at this initial and important aspect.
19.Further, in his cross examination, the complainant stated that he had given a friendly loan to the accused, in a similar manner as he had given to other people also, being a businessman. He also submitted that such a loan was given to the accused in his office at Karol Bagh, in the presence of his Manager, Mr. S. Ravi Verma, who was later examined as CW2 as well and his testimony shall be discussed later in detail. The complainant then stated that Ex CW1/1 promissory note was prepared and given by the accused himself to him. The accused suggested that the promissory note is false and fabricated since there is no mention of date on it and the same was prepared subsequent to the time when the complainant had taken the signatures of the accused on blank paper on the day CC No.511898/16 page no.12 of 28 Jitender Pal Kathuria vs K. Thomas of the incident in question. The complainant however clarified that the date on the promissory note is mentioned in the bottom line. On perusal of the promissory note Ex CW1/1, though it is correct to say that there is no date mentioned at the top right corner were apparently there is a place of mention for the date, but equally, at the bottom line, the date is mentioned, albeit as being part of the cheque details. The complainant has pointed out in the original complaint as well that the date of the cheque was kept the same as that of the loan given, since the validity of the cheque was six months and the accused was to return the loan so taken earlier, that is, within three months. He also explained that if the complainant had actually wanted to fabricate the blank document by converting it into a promissory note, there was no stopping him to put the date also on it. But since it wasn't done, it reflects that the complainant had no intention to tamper with the document executed by the accused himself. Considering the same, the complainant explained that the cheque, the loan and the promissory note were all dated 05.06.2006. The signatures on the promissory note Ex CW1/1 are already admitted by the accused. In such circumstances, the complainant not specifically putting a date to a document may look odd, but at the same time, his explanation that the promissory note was given by the accused himself, on the same date as of the loan when the cheque in question was also handed over, does not look entirely unbelievable, considering if he wanted to fabricate the document, he would have not left the date blank. On the other hand, the accused hasn't pointed out anything so outlandish, given the circumstances of the case to completely disbelieve the promissory note. Having said so, in a way, this point, as canvassed from both the sides, does not add or subtract much to either of the party's case. In fact, since it was upon the accused to rebut the presumptions raised against him first, he cannot be said to have explained this particular circumstance with as CC No.511898/16 page no.13 of 28 Jitender Pal Kathuria vs K. Thomas something to his own advantage, which could be said to have probabalised a defence in his favour, especially since the signatures on the said promissory note are admitted. This point is clarified successively when the authenticity of the story of the accused is put into doubt in each succeeding para as not being believe-worthy in first place.
20.Finally, the complainant completely denied knowing or ever employing any person named Mr B M John. Any and every suggestion qua him was denied by the complainant downright. Similarly, all the other suggestions also, put to him in relation to the alleged incident of abduction was also denied by the complainant. The complainant also denied all other suggestions with regards any notice being issued by the accused or receiving any reply from him to notice issued after dishonour of the cheque in question. In such a manner therefore, complainant's cross-examination was concluded. On balance, he remained steadfast on his claims and there was nothing so damaging extracted out by the accused that could be said to have probabalised a defence in favour of the accused.
21.Next, Mr Ravi Verma, Manager of the complainant was examined. (an application u/s 311 CrPC was moved and allowed for the same) In his examination in chief, he deposed in sync with the story of the complainant. Even during the cross-examination, CW2 stuck to the overall version of the complainant and the accused was unable to razor out any glaring inconsistencies favourable for him. On being questioned about the role/capacity in which he had been employed with the complainant, CW2 filed his visiting card Ex CW2/2 and also salary ledger on subsequent date being CW2/3. He stated that in 2006 he was working as Sales Manager in the complainant's firm and was presently engaged as the Marketing CC No.511898/16 page no.14 of 28 Jitender Pal Kathuria vs K. Thomas Head. He admitted knowing the accused since 2005 through the complainant firm, being in employment since 1998. He specifically deposed that on 05.06.2006, at about 2:00-2:15 P.M., loan of Rs 7,00,000/- was given to the accused in cash. At that stage, he also stated that some 5-6 persons were available in office, including customers, besides himself and the complainant. The complainant had stated that only him and CW2 were there at the time of the transaction alongwith the accused. However, the accused did not question CW2 on this aspect and did not press any further. Therefore, the statement of CW2 can also be understood to mean that the CW2 was talking of 5-6 people in the context of the overall number of persons, then present in the entire office, whereas the complainant may have been talking about the number of persons present specifically who witnessed the transaction of advancing loan. This seems more likely and since the witness was questioned any further on this line, his version can be read in a conciliatory manner with that of the complainant's. CW2 also went on to further state that readymade documents were brought by the accused, being the cheque in question and the promissory note but signatures were affixed on both of them in his presence. It must be noted that on all these aspects, which were confirming the story of the complainant, no more probing questions were put to the witness, barring the usual suggestions, which also, were obviously denied. In a way therefore, CW2's deposition reinforced the testimony of the complainant on almost all-important points.
22.CW2 did admit that he did not know as to whether the loan given was shown in the ITRs or not, whether the same was given out of the personal account of the complainant or from that of the firm account, or for that matter whether the cheque in question was issued in the personal name of the complainant or in the firm name. These questions however, do not add much to the defence CC No.511898/16 page no.15 of 28 Jitender Pal Kathuria vs K. Thomas of the accused. This is since the question with regards ITR or sources of funds was never put to the complainant, who obviously would have been in better condition to answer them. But it was never put to the him. Asking the same from CW2 only did not serve the purpose. Further, the witness had already stated that the cheque, as well as the promissory note were all pre-prepared by the accused and only signatures thereon were put in his presence. The signatures themselves, are not denied by the accused as well. But even with regards the date on the promissory note Ex CW1/1, though the witness stated that it did not bear the date separately, but reaffirmed the complainant's version by adding voluntarily that the date was mentioned in the body of the document. The witness denied knowing about the receipt of any notice by the complainant from the accused's end, or anything about the date of the presentment of the cheque in question. More importantly however, CW2 confirmed that there was no employee with the name of Mr B M John working in the complainant firm at present or even previously. It was a categorical answer and not much was explored on this front by the accused from the witness.CW2 also stated that he did not know if business relations existed between the complainant and the accused, which was not exactly the case of the complainant also, as has already been noted above. Rest, all suggestions put to the witness regarding the version of the accused were denied.
23.In view of the above, CW2 deposed much in line with the complainant's case and there was nothing substantially damaging which came out therefrom to the benefit of the accused.
24.CW3 and CW4 were bank witnesses which proved the dishonour of the cheque in question and the respective cheque memos Ex CW3/1 and Ex CW4/1, about which there is no disagreement. With CC No.511898/16 page no.16 of 28 Jitender Pal Kathuria vs K. Thomas this, CE was concluded.
25.Thereafter, statement of the accused was recorded u/s 313 CrPC wherein which mostly, the defence of the accused, as has been outlined above already, was reiterated. With regards the question of receipt of legal demand notice however, the accused stated that he did not receive the same. But at the same time, he also admitted that the address mentioned on the legal notice Ex CW1/5 was correct and belonged to him. In such a scenario, since the complainant can be said to have proved Registered AD/UPC Ex CW1/6, Ex CW1/7, Ex CW1/8 and Ex CW1/9 through which the said legal notice was sent, in view of there being produced no proof to the contrary from the accused's side. If that is so, it can be safely concluded that service of the legal notice was indeed made. In addition to it, the defence of the accused that legal demand notice was not received is devoid of merit in view of the decision of the Hon'ble Apex Court in C.C. Alavi Haji v Palapetty Muhammad & Anr. (2007) 6 SCC 555 also, which states that in case, drawer of the cheque raises an objection that he never received legal notice u/s 138 of NI Act, he can within 15 days of the receipt of summons, make payment of the cheque amount and in case, he does not do so, he cannot complain that there was no proper service of legal notice u/s 138 of NI Act. Hence, in view of the judgment in C.C. Alavi Haji (supra) also, the presumption of service of valid legal demand notice arises against the accused, i.e. if not of the legal notice sent vide registered post, then through issuance of summons by the court.
26.Having failed to rupture complainant's version during cross examination of its witnesses, thus arrived the final opportunity of a possible redemption for the accused when he himself stepped into the witness box. This was the only chance left to prove its case and CC No.511898/16 page no.17 of 28 Jitender Pal Kathuria vs K. Thomas probabalise a defence in his favour. But alas, each of his claims trying to weave a tale of fantastic possibilities, as it were, fell flat. During examination in chief, the accused deposed on similar lines as has been noted above already, claiming that he was taken under duress by the complainant, was made to sign and over the cheque in question and some blank paper (allegedly later misused as the promissory note Ex CW1/1) under threat to him and his family and all of this, on the premise that he was secretly in cahoots with Mr B M John, an employee of the complainant, wo had embezzled funds from the firm of the complainant and had fled away. In this regard, he relied upon Ex DW1/A - copy of complaint made to the police authorities about the whole incident, viz. to the Commissioner of Police and SHO, PS: Mehrauli alongwith DCP(South) and others, AD acknowledgment cards of the said complaint as Mark D-C, D-D, D-E and D-F and photocopies of the registered AD as Mark A-D and D-B, Ex DW1/B - letter to its bank instructing them to stop payment for the cheque in question forcibly taken by the complainant, Ex DW1/C - legal notice to the complainant dated 10.06.2006, demanding back the cheque in question as well as the blank paper. Though the accused also claimed in his deposition as DW1 that he had replied to the legal demand notice issued by the complainant Ex CW1/5, no such document was ever filed on record by him. This in fact, shows the lack of bonafides on part of the accused that despite stating something about a particular fact, he does not even care to file it before court. Be that as it may, with regards the other documents that have been filed by the accused, on first blush, one may be tempted to believe that the accused may have made out a case in its favour. But as we shall see on a closer and a holistic examination of all of these, in light of the cross-examination of the accused also, all claims of the accused have remained mere mendacious boasts. In fact, based upon these, the complainant CC No.511898/16 page no.18 of 28 Jitender Pal Kathuria vs K. Thomas has also filed an application u/s 340 CrPC for prosecuting the accused separately for lying on oath and fabricating evidence.
27.To begin wit the most basic and the very first statement of fact, which the accused deposed as DW1 on 10.12.2018, it read as follows :
"Prior to 05.06.2006 I do not know the complainant Sh. Jitender Pal Kathuria"
On this aspect however, during his cross examination on 09.01.2019, when the accused was enquired about the residential address of the complainant, he did a summersault and stated in so much words as follows :
"....I do not know the residential address of the complainant. I have mentioned address of the complainant in complaint Ex DW1/A. I came to know about his address wen Mr B M John had visited m y house with the complainant once pri or to 05.06.2006.
I must have wrongly stated in my evidence dated 10.12.2018 that prior to 05.06.2006 I did not know the complainant..."
As is evident from the above, the accused himself admitted that he did know the complainant from before the date of the alleged incident in question, whereas he had chosen to depose exactly the opposite in his examination in chief. The version of the accused in this manner gets severely discredited right at the very start. And what builds upon this further, is more of the same, of such dubious character.
28.The complainant's counsel thereafter asked questions from the accused with regards his alleged forceful abduction by the complainant and his people. The accused stated that on 05.06.2006, he was driving when 2-3 persons forcibly entered his car and took him to Karol Bagh, at complainant's office. In the CC No.511898/16 page no.19 of 28 Jitender Pal Kathuria vs K. Thomas same breath, the accused also conceded that no forceful act was committed by either the complainant or any of his other people till the time they reached the complainant's office and that is why he had raised no hue and cry enroute the entire journey for public assistance. The accused also stated that as per him the complainant was not carrying any weapon either on that day. Additionally, the accused also submitted that even after being let off, after having forcefully taken from him the signed cheque in question and the blank paper, he neither called for police assistance by dialling 100 nor visited any police station in vicinity, despite there being three police stations nearby. He rather claimed not knowing such police stations being there. All of these answers of the accused and his conduct especially, when looked at from the standpoint of a reasonable and prudent person, look suspect. Any person who claims to have been forcefully taken, and given life threats, is expected to immediately inform the police authorities situated nearby. Dialling no. 100 for the same is the most commonly and widely known way. In such a scenario, the complainant asking the accused of why not adopting such a course of action seems to be a perfectly legitimate question. But the accused, on the other hand, wants the court to believe that even after being taken away from his home, as far as from Chhatarpur to Karol Bagh, having been made to forcefully part with his signed cheque and blank paper against his consent, he went back quietly to is home, again covering the considerable distance from Karol Bagh to Chhatarpur, without feeling the need to inform the nearest police authorities, either by dialling no. 100 or even looking for a police station around ? And this is so, when the complainant, who as per the accused had committed all such wrongs, was known by the accused of having an office in the same area at Karol Bagh, where he was brought by the complainant, which could have been easily informed to the police there and then. In not doing so, the CC No.511898/16 page no.20 of 28 Jitender Pal Kathuria vs K. Thomas circumstances as pointed out by the accused look fishy. It is not entirely out of place to assume that a reasonable man would have looked to inform the police authorities there and then and would have made efforts to take them to the office of the complainant also there and then. In such a way, the accused could have confronted the complainant in presence of the police as soon as possible. Instead, the accused wants the court to believe, that he did nothing of this sort, calmly went back to his home and chose to prefer making written complaint to several authorities on multiple level. There may be nothing wrong in adopting such a course of action either, but such conduct of the accused, from a reasonable man's point of view, does indeed raise more questions than the answers it provides. The onus was upon the accused to explain as to how very conveniently he came in his car to the office of the complainant without registering any sort of protest, gave away his cheque and blank documents and then left back for his home also, without raising any alarm all this while. Section 8 of the Indian Evidence Act, 1872 ("IEA") makes such conduct of the accused extremely relevant about which no satisfactory explanations are forthcoming. When looked in light of the scant explanation the accused has offered; he doesn't appear to have made out a very convincing case.
29.Coming to the complaint itself now, Ex DW1/A, which was made by the accused regarding the alleged incident in question to the Commissioner of Police, Delhi, with copies marked to his Excellency, Lt. governor, Delhi, DCP (South), ACP (South), DCP (Economic Offences Win), Qutub Enclave, Delhi and SHO, PS:
Mehrauli. This document is claimed by the complainant to be a fabricated one. With regards the same, the accused has stated that he had sent the said complaint on the day of the alleged incident in question itself by post, i.e. on 05.06.2006. But, in his cross CC No.511898/16 page no.21 of 28 Jitender Pal Kathuria vs K. Thomas examination, he also admitted that the document contained receiving of PS: Mehrauli dated 09.06.2006. The accused further conceded that receipts of registered post vide which he had sent the said complaint have not been filed on record. Finally, when asked about the final/present status of the said complaint, the accused stated that on enquiry from the police station, he had come to know that the investigation was in progress, the result of which however, even after 14 years now, he did not know. On this aspect, the accused also stated that he had not instituted any other complaint proceeding u/s 156(3) read with Section 200 CrPC or any civil suit of injunction against the complainant other than the complaint sent to the police authorities. Apart from these, several questions were also put to the accused regarding complaint Ex DW1/A being a fabricated document, which were all denied. First of all, if one looks at the document Ex DW1/A closely, it raises several doubts at the threshold. The entire document is a typed one, but the date of the document, when it was allegedly made and sent by the accused, 05.06.2006, at the first page on top right corner is written by hand with a pen and the same bears striking similarity as to its manner and style, with the writing on the alleged receiving of the document, represented by the stamp of PS : Mehrauli, South District, the same being in pen also, dated 09.06.2006. This doesn't inspire confidence and looks a rather convenient attempt by the accused to support his version that the complaint was made on 05.06.2006. It cannot be totally ruled out that the date 05.06.2006 would have been given/ put on the document belatedly with an attempt to show that the document was prepared on such prior date. In a like manner, all the offices, to which Ex DW1/A has been marked, viz. His Excellency, Lt. Governor, Delhi, DCP (South), ACP (South), DCP (Economic Offences Win), Qutub Enclave, Delhi are again typed, with the only exception being SHO, PS: Mehrauli, which is hand written by pen separately. This again CC No.511898/16 page no.22 of 28 Jitender Pal Kathuria vs K. Thomas raises serious doubt as to whether the same was added later to represent the letter having been sent so PS: Mehrauli as well.
Looked at cumulatively, both the date and PS: Mehrauli having been written by pen differently does create some uncertainty as to the validity or correctness of the document itself. Since the fulcrum of the defence of the accused rests on establishing the correctness of his claim vis-a-vis the incident in question by proving this document Ex DW1/A, it was incumbent upon him to not to leave any pitfalls regarding its credibility. However, genuine doubts have been shown by the complainant to exist with regards the document Ex DW1/A which hamper the chances of the accused probabalising a defence in is favour.
30.What is most revealing about the deposition of the accused qua complaint Ex DW1/A, is that he didn't even know the status of it after so many years. This is extremely hard to believe. Does it seem a plausible explanation that an incident, almost amounting to abduction which is criminally prosecutable, about which the accused claims to have made a complaint to several high ranking officials, and who himself is being prosecuted against by the very same person who wronged him in first place - and yet the accused in his defence turns up blithely to state, that after more than 14 years from the date of the incident, he doesn't even know the status of his complaint, i.e. he is unaware if any action was taken by any authority at any level against the complainant herein, after all these years ? This just doesn't seem to be reasonable looked at from any standpoint of a prudent person. Law favours the vigilant, and not the indolent. If the accused himself is so unscrupulous, then he should not expect this court to believe all his explanations at the mere asking of it, without offering any corroborative evidence. And this is so, when the burden placed upon the accused to be discharged is lighter, i.e. the scale is of CC No.511898/16 page no.23 of 28 Jitender Pal Kathuria vs K. Thomas preponderance of probability only. If the accused had cared to bring to the notice of the court something that could have been said to make his case look probable, and prove the validity of complaint Ex DW1/A, the presumptions of law under sections 139/118 would have stood rebutted. But never was the case like that throughout the trial.
31.Together with and in addition to the above, the accused also summoned various witnesses to prove the authenticity of the complaint Ex DW1/A. The stamp on the same shows that it was received at PS: Mehrauli on 09.06.2006 vide DD No. 29B. Ct. Neeraj Kumar from office of DCP (South) had entered an appearance in court in this regard on 27.02.2019. The order-sheet of the day noted that he had brought order no. 1942-2041/SDC- V/SD dated 20.03.2018 alongwith letter of DCP (South), Delhi wherein which it was stated that record of diary and dispatch register up to 2012 had been destroyed. Similarly, report on the summons issued to Record Keeper PS: Mehrauli was also received back on the same day together with copy of order no. 6160-6250/HAR/SD dated 16.05.2017 of DCP (South), according to which again, records of complaint up to the year 2012 were already destroyed and a letter in this regard of ASI Virender Singh PS: Mehrauli was received as well. All of this forms part of the judicial record. In such a manner therefore, the accused could not establish the existence or otherwise of the complaint Ex DW1/A. However, HC Kailash, who had also appeared in court on 09.01.2019 upon being summoned to verify the complaint Ex DW1/A, proved to be fatal to the case of the accused. He brought Daily Diary register having DD No. 29B dated 09.06.2006, the entry and date as per which the accused's complaint was received at PS: Mehrauli. As per the daily diary register brought to the court, DD no 29B dated 09.06.2006 pertained to information regarding a CC No.511898/16 page no.24 of 28 Jitender Pal Kathuria vs K. Thomas road accident and not to any complaint made by the accused. Copy of the relevant extract of DD no. 29B dated 09.06.2006 PS:
Mehrauli brought by HC Kailash was retained on record and put to the accused in his cross-examination as DW2/A (2 pages) to which he had no explanation whatsoever. This piece of evidence jolted the very foundation of the accused's case as the very basis of what he had claimed, the complaint Ex DW1/A for the alleged incident in question was found to be non-existent. If that be so, the whole defence of the accused seemed to crumble having no legs to stand upon. No cogent reasoning was offered by the accused in this regard to explain the mismatch between the record produced as against what was claimed by the accused via Ex DW1/A. Short of that, the accused seems to have been confronted with a fait accompli.
32.With regards the mode of sending the complaint Ex DW1/A to different authorities concerned, the accused has filed on record photocopies of registered AD Mark D-A and Mark D-B and acknowledgement cards themselves being Mark D-C, D-D, D-E and D-F. the complainant suggested to the accused during his cross-examination that all of these also were fabricated documents since no original postal receipts have been filed by the accused to prove whether the complaint Ex DW1/A was indeed sent by registered AD. The complainant's assertion sounds logical. What has been placed by the accused on record to show the complaint Ex DW1/A having been posted are registered AD cards only and their photocopies. They, by themselves cannot be taken to prove that the complaint was indeed posted or not. That could have been proved on record by either producing original postal receipts or examining any with witness from the concerned post office to show the booking of post by registered AD to be sent to the authorities concerned. Without either of these, photocopies of registered AD CC No.511898/16 page no.25 of 28 Jitender Pal Kathuria vs K. Thomas Mark D-A and Mark D-B and acknowledgement cards being Mark D-C, D-D, D-E and D-F do not prove anything and are of no assistance to the case set up by the accused.
33.In a similar manner as noted above, the accused also filed Ex DW1/B - instructions to its bank for stopping payment in respect of the cheque in question and Ex DW1/C, legal notice issued to the complainant demanding return of the cheque in question and the blank signed paper, purportedly misused as a promissory note by the complainant. Both these documents however, are patently self -
serving ones. With regards Ex DW1/B, it can be seen that there's no endorsement on it of having been received by the bank concerned or anything of that sort which can prove that a letter of that kind was indeed written, sent/received by the bank. It appears to be just a piece of paper, on which material suitable to the accused has been written and produced for reliance in the trial. No postal receipts again with regards it have been filed either to prove that such instructions were sent to the bank. Even when the complainant quizzed about this from the accused in his cross examination, he admitted that it was correct to say that Ex DW1/B did not contain any stamp or receiving of the bank. In such circumstances, Ex DW1/B cannot be relied upon in any manner. Similar is the case with Ex DW1/C. As per the accused, the said notice dated 10.06.2006 was sent by the accused, through his counsel to the complainant. Even with regards this notice, no postal receipt has been filed to prove the actual sending of the same. Even the date written on the notice is scribbled upon. There is nothing on record to suggest as to whether such a notice was actually sent or not. Again, in his cross-examination as well, the accused sheepishly agreed that there were no postal receipts filed by with respect to the legal notice sent to the complainant. With regards to reply of the legal notice sent by the complainant Ex CC No.511898/16 page no.26 of 28 Jitender Pal Kathuria vs K. Thomas CW1/5, as has been noted already, though the accused stated that he had sent a reply for the same, but nothing came to be filed in this regard to prove if such a reply was indeed sent.
34.In view of the above, all the documents sought to be relied upon by the accused and tendered in evidence, seem to be part of a desperate attempt, a sort of one more throw of a dice at his luck, to somehow make his version appear creditworthy. Despite that, he has remained woefully short and has been unable to probabalise a defence in his favour. One cannot expect to file document after document which are unsubstantiated in material particulars, to be believed upon, which have question marks written all over them as to their authenticity. Since the accused has taken a defence that was completely at variance with the version of the complainant, it was expected out of him to prove the existence of such alternative version. But Not to be.
35.As can be seen from the foregoing discussion, the accused has failed in rebutting the presumptions raised against him. There was nothing that came out in the entire evidence on record which would probabalise the defence raised by him or falsify the case of the complainant.
36.In view of the aforesaid reasons, this court finds that the accused has not been able to prove any probable defence and has failed to rebut the presumptions raised u/s 118/139 of the NI Act.
37.The complainant has been able to prove that the cheque in question was issued in discharge of a valid legally recoverable liability owed to the complainant with the aid of presumptions of law raised in his favour.
CC No.511898/16 page no.27 of 28 Jitender Pal Kathuria vs K. Thomas
38.The accused is hence Convicted for the offence punishable u/s 138 of the Negotiable Instruments Act in respect of the cheque in question.
Digitally signedGAURAV by GAURAV SHARMA (Announced in open SHARMA Date: 2020.10.12 16:36:47 +05'30' Court via VC on 12.10.2020 ) (Gaurav Sharma) MM/NI Act-03/Central 12.10.2020 Judge Code: DL00855 CC No.511898/16 page no.28 of 28 Jitender Pal Kathuria vs K. Thomas