Delhi District Court
Swadesh Bansal vs M/S Prashna Electric Equipments on 25 February, 2013
Swadesh Bansal vs M/s Prashna Electric Equipments
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE, NORTH, DELHI
CC No. 78/10
Swadesh Bansal
S/o Sh. Mahabir Bansal
100, Tilak Bazar (Khari Baoli),
Delhi - 110006.
....................Complainant
vs.
M/s Prashna Electric Equipments
16/2, Keshav Nagar,
Shastri Road, Bardoli - 394602
Distt. Surat, Gujrat
Through its Prop./Partner/Authorized Signatory
Sh. P.C. Rawal @ Neel R.
Also at : Sh. P. C. Rawal @ Neel R.
Plot no.2, Sharmjivi Society No.2,
ICHCHHANATHTLAVFA Liaumra- 395007 Gujrat.
............................Accused
The offence complained of or proved : u/s 138 NI Act
The plea of the accused persons : not guilty
Final order : Convicted
Date of institution of complaint : 04.03.2010
Date on which reserved for judgment : 21.01.2013
Date of pronouncement of judgment : 25.02.2013
CC No. 78/10 Page 1 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments
JUDGMENT:
1. Vide this judgment this court shall dispose of the present complaint u/s 138 Negotiable Instruments Act 1881 filed by the complainant against the accused.
2. Brief facts stated in the complaint are that the accused was in friendly relations with the complainant and the accused was in urgent need of money of Rs. 1,50,000/- and the accused approached the complainant to borrow a loan of Rs. 1,50,000/- in the second week of November 2009 for a period of one month. But the accused did not pay the aforesaid amount within one month to the complainant. After great persuasion, the accused issued one cheque bearing no.782421 dt. 22.12.2009 for a sum of Rs.1,00,000/- drawn on State Bank of India, Bardoli, Surat as part payment of the aforesaid amount to the complainant. The said cheque is ExCW1/1. The complainant presented the aforesaid cheque in his banker i.e. Exis Bank Ltd., Chandni Chowk, Delhi-06 for its encashment but the said cheque was dishonored with remarks "Insufficient funds" vide memo dt.08.01.2010. The said memo is ExCW1/2. Thereafter on 13.01.2010, the complainant sent a legal demand notice to the accused by Regd. AD as well as UPC / courier demanding the cheque amount, but the accused neither replied the said notice nor paid the cheque amount CC No. 78/10 Page 2 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments till date. The legal notice is ExCW1/3 and postal receipts are ExCW1/4 to ExCW1/9. On failure of the accused to make the payment within the stipulated period, the present complaint was filed.
3. After hearing the arguments on summoning, sufficient grounds were made out against the accused u/s 138 NI Act and process was issued against him. On his appearance, the accused was admitted to bail on 25.03.2011.
4. Notice U/s 251 Cr.P.C was served upon the accused on dt.25.03.2011 to which the accused pleaded not guilty and claimed the trial.
5. Complainant examined himself in his evidence and he adopted his pre summoning affidavit as the post summoning affidavit, which is ExCW-1 where he reiterated the same facts.
During the cross examination he deposed that he is in Delhi from his birth.
On being asked that when did he meet the accused first time, he replied that he met to the accused first time in the house of Krit Rambhaia in 1998 in Patel Nagar. CC No. 78/10 Page 3 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments Krit Rambhai is his friend and his client. The full name of the accused is Mr. P. C. Rawal @ Neel R. He does not know the full name of P. C. Rawal @ Neel R. On being asked that how many times the complainant met to the accused and where, he replied that he does not remember how many times and where did he meet the accused over the last several years.
He does not know the qualification of the accused / friend. On being asked that how could he know that the accused is in immediate need of money, he replied that in the second week of November 2009, the accused came in his house and requested him that the accused was in urgent need of money of Rs. 1,50,000/- and the accused approached him to borrow a loan of Rs.1,50,000/- for a limited period of one month.
The accused came in his house at 8.45 am. the accused came in his house and he pay a sum of Rs.1,50,000/- to the accused and the accused promised him to return the said loan amount to him within one month but the accused has failed to pay the aforesaid amount. When the accused came in his house, he gave him a sum of Rs.1,50,000/- within one hour. He has never made any loan agreement with the accused. Voluntarily stated that the accused was his friend. There is no CC No. 78/10 Page 4 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments other paper of documents signed by the accused. The accused received a sum of Rs. 1,50,000/- in the denomination of hundred notes of Rs.1000/- and hundred notes of Rs.500/- and the total amount is Rs.1,50,000/-. The cheque in question was given at his house on 22.12.2009. He gave a sum of Rs.1,50,000/- to the accused from his house. After one month the accused did not pay the aforesaid amount to him despite that he called the accused. It is wrong to suggest that the cheque in question was given as security for the legal fees to the complainant and further wrong to suggest that cash payment of Rs.1,00,000/- has already been made to him but the cheque in question was not returned by him. It is wrong to suggest that he has concealed all these things in his complaint and he has lodged false complaint. It is wrong to suggest that he is deposing falsely.
6. All the incriminating evidence had been put to the accused to which he stated that he was in Gujarat in November 2009, at the time when the complainant has alleged the giving of loan in question to him. There was no question of obtaining the loan as the accused was in Gujarat at that time. Since the complainant was his advocate in another debt recovery matter, hence the cheque in question was given for the purpose of his legal fees, against which cash payment was made CC No. 78/10 Page 5 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments afterwards but the complainant never returned the cheque on one pretext or the other. He further said that he sent a reply also to legal demand notice of the complainant. He has also stated that he wants to lead defence evidence.
7. Accused examined himself in his defence evidence and deposed that Mr. Swadesh Bansal was his hired advocate in his debt recovery matter from his debtor M/s Prabhu Enterpise, Mumbai. The introduction as a advocate of Mr. Swadesh Bansal was by their common man Mr. Kirit Rambia in the month of September 2009. The legal fees was decided of Rs. 1 lac for debt recovery matter. On 24.09.09 Mr. Swadesh Bansal drafted a legal notice for his debtor M/s Prabhu enterprises and same copy given to him through the fax of Mr. Kirit Rambia. On 03.11.09 Mr. Swadesh Bansal send one reminder copy to his debtor M/s Prabhu Enterprises, Mumbai. As per the argument of Mr. Swadesh Bansal in his cross examination he told that he was in Delhi in 2nd, week of November 2009. Reality is that he was in his home state Gujrat only. He visited first and second week of November, 2009 in Rajkot and nearer place to Baroda and return back to his home. On 21st December 2009 Mr. Swadesh Bansal contacted him on telephone for the settlement of debt matter with M/s Prabhu Enterprises, Mumbai.
CC No. 78/10 Page 6 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments He met first time with Mr. Swadesh Bansal face to face as on 22nd December 2009 at arrival lounge of domestic airport Mumbai. After their meeting at Mumbai Airport. Mr. Swadesh Bansal took him to his hotel room nearby domestic airport and demanded legal fees as security cheque of Rs. 1 lacs. After that Mr. Swadesh Bansal took him to his debtor uncle's office and forcefully get signed settlement letter. Very next day on 23.12.09, he paid full amount of said cheque of Rs. 1 lacs through his business friend Mr. Lalit Goradia in cash. After receipt of the cash Mr. Swadesh Bansal has not returned the said cheque to his business friend nor to him. After that without his knowledge he started blackmail through the deposit of said cheque and created legal evidence against him and sent a legal notice to him. In reply to the said notice he requested him thoroughly that please stop this blackmailing and return them their said cheque for which full amount he already received from them. Till today he has not returned him the said cheque. He submitted relevant documents that Mr. Swadesh Bansal was his hired advocate in his debt recovery matter from M/s Prabhu Enterprises Mumbai, he also submitted the evidence related to his stay in Gujarat in second week of November. He also submitted the documents related to settlement at Mumbai as on 22nd, December 2009 and also submitted the documents related to his legal notice in way of legal CC No. 78/10 Page 7 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments notice reply. He is ready to bring the original evidence if in demand for verification and He is also ready to submit additional documents for his defence.
Mr. Swadesh Bansal has filed this matter totally fabricated and in favour of his debtor to spoil his business career permanently. He rely upon the document ExDW1/ MarkA to E and the document ExDW1/1 to ExDW1/18.
During his cross examination, he deposed that it is correct that he used to his name as P.C. Raval and his nick is name R.Neel. The full form of P.C. Raval is Paresh Chandulal Raval. It is wrong suggest that he knows Mr. Swadesh Bansal since the year 1998. He know Mr. Swadesh Bansal since September, 2009. He introduced to Mr. Swadesh Bansal through Mr. Kirit Rambia by telephone in September, 2009. He did not remember exact date of telephonic introduction. Mr. Kirit Rambia is residing at Bombay. When Mr. Kirit Rambia introduced him to Mr. Swadesh Bansal, he was in his home town at Gujarat. It is wrong to suggest that he know Mr. Swadesh Bansal since the year 1998 and further wrong to suggest that Mr. Kirit Rambia did not introduce him to Mr. Swadesh Bansal in September, 2009. He does not know exactly that Mr. Kirit Rambia resides at Delhi. He does not know whether Mr. Kirit Rambia resides at Delhi at 4/10, East Patel Nagar, New Delhi. It is wrong to suggest that he had taken any loan of Rs. 1,50,000/- in the second week CC No. 78/10 Page 8 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments of September, 2009 from Mr. Swadesh Bansal.
It is correct that he has issued a cheque for Rs. 1,00,000/- to Mr. Swadesh Bansal. It is correct that all the details were filled in the cheque in question by him. It is wrong to suggest that the cheque in question was given as a part payment of the loan which he has taken from Mr. Swadesh Bansal. Voluntarily stated the said cheque was a security deposit of legal fees for his debt recovery matter to Mr. Bansal on 22.12.2009. He paid Rs. 1,00,000/- in cash to Mr. Bansal as on 23.12.2009. Mr. Swadesh Bansal had not returned the cheque in question to his friend Mr. Lalit Goradia who had handed over cash to Mr. Swadesh Bansal. It is wrong to suggest that neither he nor his friend had given Rs.1,00,000/- cash to Mr. Bansal on 23.12.2009. It is correct that he has not filed any documentary proof regarding payment of Rs.1,00,000 cash to Mr. Bansal. He met with Mr. Bansal at Bombay for his debt recovery matter with M/s Prabhu Enterprises. After reaching at Bombay domestic Airport, he went with Mr. Bansal at Hotel. He does not know the address of the hotel. Mr. Swadesh Bansal demanded legal fees security cheque of Rs. 1,00,000/-. It is correct that Mr. Bansal sent a legal notice on his behalf to M/s Prabhu Enterprises. He did not pay any legal fees to Mr. Bansal regarding sending of legal notice to M/s Prabhu Enterprises. It was decided that legal fee of Rs. CC No. 78/10 Page 9 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments 1,00,000/- shall be payable to Mr. Bansal only after receiving due payment from M/s Prabhu Enterprises. No written agreement between him and Mr. Swadesh Bansal regarding above said statement. It is correct that he has received a legal notice Ex. CW1/3. He has sent a reply to the notice Ex. CW1/3 vide reply Ex. DW1/13 to Mr. Swadesh Bansal. It is wrong to suggest that he has not sent the reply to the legal notice Ex. CW1/3 rather than he has sent in an envelope copy of Hanuman Chalisa. He had not received the notice Ex. CW1/D1 and postal receipt and UPC of which are Ex.CW1/D2 and Ex.CW1/D3. He did not lodge any complaint to police regarding non return of his security cheque. He did not issue any instructions to stop payment to his banker. It is wrong to suggest that he had not lodged any complaint or instructions to police or his banker because he has not made the payment of Rs. 1,00,000/- to Mr. Bansal. He did not send any letter asking the complainant to return the cheque after making the payment of the same to him. It is correct that document DW1/Mark A did not mention statement for the period 08.09.2009 to 10.09.2009. It is correct that statement DW1/Mark A is not in his name but it is in the name of his firm. It is correct that Ex. DW1/1 does not bear his signatures and does not mention his name. It is correct that Ex. DW1/2, Ex. DW1/3 and Ex. DW1/4 does not bear his signatures and does not mention his name CC No. 78/10 Page 10 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments and does not mention any seal of restaurant and signature. Ex. DW1/5 does not bear his signatures and does not mention his name but vehicle number is mentioned on it. It is correct that his name is not Paresh Bhai Bardoli. Voluntarily stated that his name is Paresh Chandulal Rawal and Bardoli is his native place. Ex. DW1/6 does not bear his signatures and does not mention his name. He has not placed on record the copy of the check out register of Paresh Guest House. It is correct that Ex. DW1/7 does not bear his signatures and does not mention his name. It is correct that full vehicle does not mention on the Ex. DW1/7. It is correct that Ex. DW1/8 does not bear his signatures and does not mention his name and no vehicle number mentioned on the receipt. It is correct that Ex. DW1/9 does not bear his signatures and does not mention his name. It is also correct that no petrol pump seal and signatures on the receipt on the Ex. CW1/9. It is correct that Ex. DW1/10 does not bear his signatures and does not mention his name and no full vehicle number mentioned on it and no petrol pump seal and signatures on it. Ex. DW1/11 settlement in between M/s Prabhu Enterprises and M/s Parsna Electrical Equipments was forcefully signed by him on the settlement. It is correct that he has received a cheque for Rs. 9,00,000/- on behalf of the above said settlement which was encashed by him. He has not lodged any complaint to police regarding the CC No. 78/10 Page 11 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments forcefully signature on the settlement Ex. DW1/11. It is wrong to suggest that since settlement was arrived with M/s Prabhu Enterprises with his own consent, hence, he has not lodged any complaint. It is wrong to suggest that he has made false and fabricated documents Ex. DW1/1 to Ex. DW1/10 and Ex. DW1/13. It is wrong to suggest that his defence witnesses were false and tutored. It is wrong to suggest that the cheque in question was issued towards part discharge of liability of the loan obtained from the complainant. It is wrong to suggest that he has deposed falsely.
8. Accused examined another witness Mr. Lalit Goradia in his defence evidence and he deposed that on 23.12.2009 at about 1:30 pm, a phone call from P.C. Rawal and Arun Panchal was received by him stating that he has to reach about 3:00 O'Clock at Angadia (Courier) Ramesh Kumar Ambalal, Andheri East, Mumbai. And also stating that a amount of Rs. 1,00,000/- has to be handed over to Mr. Bansal and he has to receive back two cheques of amounting Rs. 1,00,000/- and Rs. 9,00,000/- from Mr. Bansal. He reached the spot at about 4:00 O'clock and it was late and he apologized Mr. Bansal. He has paid him Rs. 1,00,000/- which was received by him at the courier and after receiving, he paid the amount to Mr. Bansal and in return Mr. Bansal handed over only a single cheque for amounting Rs. CC No. 78/10 Page 12 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments 9,00,000/-. After enquiring about the second cheque of Rs. 1,00,000/- Mr. Bansal told him that he will talk to Mr. P.C. Rawal and Arun Panchal. Thereafter, he called Mr. Rawal and Arun Panchal and informed them about that he has only received a cheque for Rs. 9,00,000/- and cheque for Rs. 1,00,000/- was not given to him.
During his cross examination, he deposed that Mr. P.C. Rawal is his business friend. Again said, Mr. P.C. Rawal is not his business friend and he is only friend and he know Mr. P.C. Rawal since two years ago. Again said, three years ago. He know Mr. P.C. Rawal through Mr. Arun Panchal because Mr. P.C. Rawal consults to him about valve design. He came to know Mr. P.C. Rawal through Mr. Arun Panchal. Mr. Arun Panchal call to him first time. Mr. Arun Panchal gave him direction to collect the money from Angadia office and give it to Mr. Bansal at first time. Voluntarily stated that Mr. P.C. Rawal also call him again and directed the same as they had multiple communication over telephone. He does not file any documentary proof regarding that he had given Rs. 1,00,000/- to Mr. Swadesh Bansal. He had handed over 100 notes of denomination 1000 to Mr. Swadesh Bansal. He had received Rs. 1,00,000/- from the counter with counting and then after hand over to Mr. Swadesh Bansal. He given Rs. 1,00,000/- to Mr. Bansal in good faith, therefore, he does not receive both the cheques. It is correct that he had CC No. 78/10 Page 13 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments made payment to Mr. Bansal on the direction of the Mr. Panchal and Mr. P.C. Rawal. It is also correct that he does not have any personal relation with Mr. Swadesh Bansal. He had not worked as a courier boy in his life regarding payments. It is wrong to suggest that he had not given Rs. 1,00,000/- to Mr. Swadesh Bansal. It is wrong to suggest that Mr. Bansal had not handed over him a cheque of Rs. 9,00,000/-. It is wrong to suggest that Mr. Bansal handed over the cheque of Rs. 9,00,000/- to Mr. P.C. Rawal. Voluntarily stated that later, he had deposited the said cheque at Mandavi Branch. He does not remember the name of the bank in which he deposited the cheque. He does not remember the exact date of the depositing of the cheque. He does not know Mr. P.C. Rawal had taken a loan for Rs. 1,50,000/- from Mr. Bansal. He does not know Mr. P.C. Rawal had issued a cheque for Rs. One lac in favour of Mr. Bansal in discharge of his part liability of loan amount. He does not have any proof regarding receiving of the cheque of Rs. 9,00,000/- from Mr. Bansal. He does not have any proof regarding receiving of Rs. 1,00,000/- from the Angadia office, Mumbai. It is wrong to suggest that he is deposing falsely.
9. Accused examined another witness Mr. Arun Panchal in his defence CC No. 78/10 Page 14 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments evidence and he deposed that on dt. 21.12.2009, Mr. Bansal call to P.C. Rawal at his office. Again said, on dt. 21.12.2009, Mr. Bansal called to Mr. P.C. Rawal that "I was coming to Bombay tomorrow i.e. 22.12.2009 and I meet to you at Bombay Domestic Airport". Mr. Bansal again said about his identity that "I wear black coat and having a file" and Mr. Bansal reach at 12.15 to 12.30 a.m. We went with Mr. Bansal at hotel. Mr. Bansal told to P.C. Rawal issued him a security cheque of Rs. 1,00,000/- for his legal fee. Mr. P.C. Rawal issued a cheque to Mr. Swadesh Bansal for Rs. 1,00,000/-. Then after, they went with Mr. Bansal to office of the Prabhu Enterprises. Mr. Bansal dropped them out of the office of Prabhu Enterprises and he went to meet wife of the proprietor of the Prabhu Enterprises. After half an hour Mr. Bansal called to P.C. Rawal and given direction to them for coming in office. His friend came with him after 20-25 minutes and told to him their life is in danger and Mr. Bansal obtained forcefully signatures of his friend on the settlement. Then after they came back at hotel and Mr. Bansal demanded Rs. 1,00,000/- cash from Mr. P.C. Rawal. They want some time to Mr. Bansal for arrangement of Rs. 1,00,000/-. On next day i.e. 23.12.2009, they arrange Rs. 1,00,000/- and sent the money to Mr. Swadesh Bansal through Mr. Ramesh Ambalal Angadia at Bombay. Again said, he called to his friend Lalit Goradia and given direction to him to collect CC No. 78/10 Page 15 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments the money from the office of Angadia on showing his identity proof. Then after, Mr. Lalit Goradia collected the money from office of Angadia and then after Mr. Bansal arrived at office of Mr. Angadia. Mr. Lalit Garodia called to Mr. Bansal and told him to collect the money. After meeting with Mr. Bansal and Mr. Lalit Goradia asked to show his identity card. After seeing the identity proof, Mr. Lalit Goradia handed over Rs. 1,00,000/- to Mr. Bansal. After receiving the money, Mr. Bansal returned one cheque for Rs. 9,00,000/- to Mr. Lalit Goradia out of two cheques. Mr. Lalit Goradia demanded the other cheque from Mr. Bansal but Mr. Bansal refused to return the other cheque and told him that he will talk to Mr. P.C. Rawal in that regard. Then after, Mr. Bansal came back to Delhi.
During his cross examination, he deposed that it is incorrect that Mr. Bansal and Mr. P.C. Rawal did not Know each other. On 21.12.2009, he came to know that Mr. Bansal is known to Mr. P.C. Rawal. It is correct that Mr. P.C. Rawal issued a cheque for Rs. 1,00,000/- to Mr. Bansal. It is incorrect that Mr. P.C. Rawal issued one cheque for Rs. 1,00,000/- to Mr. Bansal by his own will. Voluntarily stated that Mr. Bansal forced to Mr. P.C. Rawal to issue the cheque for Rs. 1,00,000/-. They have not lodged any police complaint against Mr. Bansal for obtaining the cheque forcibly. It is correct that they were free from the pressure CC No. 78/10 Page 16 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments about to issue the cheque to Mr. Bansal after coming back to Bardoli, Surat. He does not have any proof to show that Mr. Bansal called to Mr. P.C. Rawal at his office. It is correct that he does not know about the conversation in between Mr. Bansal and Mr. P.C. Rawal. He alongwith Mr. P.C. Rawal went to Bombay by train "Flying Rani". He has not filed any documentary proof on record on this journey. He does not know the name of the hotel at Bombay. He does not make any entry in the reception counter of the hotel. Voluntarily stated that Mr. Bansal had booked the hotel room. They had not booked any hotel room at Bombay. They depart from Surat at about 05.00 am and arrived to Bombay at about 09 to 09.15 am. They arrived to domestic airport, Bombay within half to one hour. Again said, in one hour. It is correct that all the advocates wore black coat. He does not know that every counsel took advance fee from his client. He does not know how much expenses from Delhi to Bombay or Bombay to Delhi by Airlines and stay in 5 star hotel. He does not know from which airlines used by Mr. Bansal. He does not know who bear the expenses of the airline, hotel etc. He does not remember name of the office where Mr. Bansal took them. He does not know exact address of the office where Mr. Bansal took them. It is correct that they wait out of the office M/s Prabhu International and then after 20-25 minutes Mr. Bansal called to them to CC No. 78/10 Page 17 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments come in the office. He does not know what the communication between Mr. Bansal, P.C. Rawal and proprietor of M/s Prabhu Enterprises. They had not called the police about the threat given by proprietor of M/s Prabhu Enterprises. It is correct that no signatures were obtained till they came out of the office by the proprietor of M/s Prabu Enterprises. It is correct that they does not try to run away from the office of M/s Prabhu Enterprises. It is correct that then after Mr. P.C. Rawal went to the office of Prabhu Enterprises. It is correct that a settlement arrived between the parties i.e. Mr. P.C. Rawal and M/s Prabhu Enterprises. He does not know what the communication in between MR. P.C. Rawal and proprietor of M/s Prabhu Enterprises was going on in the office of M/s Prabhu Enterprises. He does not know settlement cheque was encashed by Mr. P.C. Rawal. It is also correct that he does not know on what terms the settlement arrived at between the parties. At about 07:00 pm, he along with Mr. P.C. Rawal, Mr. Bansal and Mr. Rana come back to hotel. The name of the Ramesh Ambalal Patel (Angadia) of his office address is Krupal Shoping Center, Station Road, Bardoli, District Surat. Mr. Ramesh Ambalal Patel transferred money to his Andheri office at Mumbai. He does not have any documentary/proof to show that Mr. Ramesh Ambalal Patel transferred money from Bardoli to his Andheri Office.
CC No. 78/10 Page 18 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments On being asked that what is the meaning of the Angadia, he replied that Angadia means who transfers money, documents from one side to other side.
He does not know Angadia means is the person who is doing the business of Hawala or phera. He does not know what amount of commission was paid to Angadia for transferring the money. They had no time, therefore, they could not go to Bombay. He does not have any documentary proof to show that his friend Mr. Lalit Gordia pay amount of Rs. 1,00,000/- to Mr. Bansal at Bombay. It is wrong to suggest that Mr. P.C. Rawal had not issued a cheque to Mr. Bansal before him. He does not know Mr. P.C. Rawal had taken a loan for amount of Rs. 1,50,000/- from Mr. Bansal. He does not know Mr. P.C. Rawal issued a cheque for Rs. One lac in favour of Mr. Bansal for return the part liability of loan amount. It is wrong to suggest that proprietor of M/s Prabhu Enterprises handed over a settlement cheque to Mr. P.C. Rawal. Mr. P. C. Rawal told to him after settlement the Prop. of M/s Prabhu Enterprises given a cheque to Mr. Bansal. It is wrong to suggest that prop. of M/s Prabu Enterprises had given a cheque to Mr. P.C. Rawal in Rs.9 lacs. He does not know whether Mr. P.C. Rawal encashed the said cheque or not. It is wrong to suggest that Mr. P. C. Rawal did not make the payment of Rs. 1 lacs to the complainant in Mumbai. It is wrong to suggest that Mr. P.C. Rawal is his business CC No. 78/10 Page 19 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments friend and he came here to depose falsely in his favour. It is wrong to suggest that he is deposing falsely.
10. I have gone through the evidence, written submissions and heard the final arguments advanced by both the parties at length.
11. The case laws material for the present facts and circumstances are discussed below.
In case entitled as "Rangappa vs Sri Mohan" [(2010), 11, Supreme Court Cases 441] where the Hon'ble Supreme Court of India, held that the bare denial of the passing of the consideration apparently does not appear to be any defence. To disprove the presumptions, the defendant has to bring on record such facts and circumstances, upon consideration on which the Court may either believe that the consideration does not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it does not exist and it was held that there is an initial presumption, which favours the complainant in the sense that the presumption mandated by Sec. 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. Since the CC No. 78/10 Page 20 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments accused did admit that the signatures on the cheques was his, the statutory presumption comes into play and same has not been rebutted even with regard to the material submitted by the complainant.
12. In the judgment "Hiten P. Dalal vs. Bratindra Nath Banerjee" AIR 2001 (SC) 3897 it was held that presumption under NI Act is a presumption of law as distinguished from a presumption under a fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with presumptions of innocence because by the later all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of a presumed fact.
13. In the judgment entitled "Pradeep Aggarwal & Ors vs Y. K. Goel", Cr. M. C. 66/2009 (Hon'ble High Court of Delhi), where it was held that complaints u/s 138 NI Act is a summary trial and accused should first disclose his defence and merely saying "He is innocent" or "He plead not guilty" will not be sufficient and CC No. 78/10 Page 21 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments onus is on the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences.
It was further held that u/s 138 NI Act, there is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent.
14. In the judgment "Mosaraf Hossain Khan vs Bhagheeraha Engg. Ltd." AIR 2006 S. C. 128(2006), it was held that the object of the provision of section 138 NI Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. Dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback.
15. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in CC No. 78/10 Page 22 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.
16. Upon hearing arguments and on the perusal of the material on record reveals that both the complainant and accused are known to each other from quite some time. The accused has admitted having issued the cheque in question duly filled in and signed to the complainant. He has also admitted having received the legal demand notice from the complainant to which he replied also. The accused has taken the defence that he had made the payment of Rs.1 Lac against the cheque in question to the complainant through his friend Mr. Lalit Goradia. Accused has also taken the defence that he was in Gujarat in November 2009 when the complainant has alleged the giving of loan in question to him. He has also stated that complainant did not return the cheque in question despite repeated requests. Assuming for a moment that the version of the accused is correct then what prevented him from filing any complaint before the police or any complaint before the court of law or to instruct his banker for stopping payment against the cheque in question. Accused has not filed any documentary proof regarding the averment that he has already paid Rs.1 Lac to the complainant against the cheque in question. CC No. 78/10 Page 23 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments DW Lalit Garodia deposed in his cross examination that he did not have any proof regarding receiving of Rs.1 Lac from the Angadia office, Mumbai. DW Arun Panchal also deposed in his cross examination that he has not filed any documentary proof to show that Mr. Ramesh Ambalal Patel transferred money from Bardoli to his Andheri office in order to pay the amount to Lalit Garodia to be given to the complainant. Hence, the accused's plea that payment was made against the cheque in question by Mr. Lalit Garodia to the complainant without any receipt or documentary proof cannot establish that accused has made a payment against the cheque in question. The documents relied upon by the accused also fail to rebut the statutory presumption in favour of the complainant. The evidence led by the accused in his defence does not inspire the confidence of this court. Hence, the accused has failed to create any reasonable probable defence and to rebut the statutory presumptions in favour of the complainant.
17. Ld. Counsel for the accused has relied upon the judgment entitled "M. S. Narayana Menon @ Mani vs State of Kerala and Ors." 2006(2) DCR 305, "C. Antony vs K. Raghavan Nair" AIR 2003 SC 182, "Pawan Enterprises vs Satish H Verma" 2003(2) ALD (Cri.) 20, "Datt Enterprises Ltd. vs V. K. Dua And Anr." AIR CC No. 78/10 Page 24 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments 2006 Delhi 16, "Pushpadevi vs Sachmi Creations" Cri. M.C. no.2845/2007 and Cri. M.A. no.10113/2007, M/s IKF Technologies Ltd. and Ors vs Sasi Bhushan Raju"
Crl. M.C. 4687-90/2006, Joseph Vilangadan vs Phenomenal Health Care Services Ltd. and Anr." Crl. writ petition no.2243 of 2009 of High Court of Bombay, "Nijjer Agro Foods Ltd. and Ors. Vs Sh. Nasib Chand and Anr." 2003 VIIAD (Delhi) 327, "Abdul Raheem vs U. P. K. Mohd. Haneefa" 2005(1) ALD (Cri.) 18, "Sreenivasan vs State of Kerala" 1 (2000) CCR 170, " C. Manohar vs B. R. Prrrnima" 2005(1) ALD Cri 56. I have highest regard for the case laws cited on behalf of the accused, but the same has been pronounced in different context and is of no help to the accused.
18. Hence, the accused has miserably failed in substantiating his defence and showing that there is no liability of the accused towards the complainant. The complainant successfully proved all the essential requirements of sec 138 of the Act i.e. :
a) The cheque for an amount is issue by the accused to the complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or CC No. 78/10 Page 25 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments other liability by the accused.
c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque.
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
19. Under the aforesaid discussion, accused Sh. P. C. Rawal @ Neel R is held guilty for offence U/s 138 NI Act and he is consequently convicted for the offence u/s 138 of Negotiable Instruments Act.
Announced in open court (Deepika Singh) today i.e. on 25.02.2013 MM NI Act / North / Delhi CC No. 78/10 Page 26 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN MAGISTRATE, NORTH, DELHI CC No. 78/10 Swadesh Bansal S/o Sh. Mahabir Bansal 100, Tilak Bazar (Khari Baoli), Delhi - 110006. ....................Complainant vs. M/s Prashna Electric Equipments 16/2, Keshav Nagar, Shastri Road, Bardoli - 394602 Distt. Surat, Gujrat Through its Prop./Partner/Authorized Signatory Sh. P.C. Rawal @ Neel R. Also at : Sh. P. C. Rawal @ Neel R. Plot no.2, Sharmjivi Society No.2, ICHCHHANATHTLAVFA Liaumra- 395007 Gujrat. ............................Convict ORDER ON SENTENCE : 12.03.2013
Present : Complainant in person along with Ld. Counsel Mohd. Babar and Mr. S. S. Rana.
Convict in person alongwith Ld. Counsel Sh. Pankaj Kumar. Arguments heard on sentencing.
Ld. counsel for the convict has argued that convict has a large CC No. 78/10 Page 27 of 29 Swadesh Bansal vs M/s Prashna Electric Equipments family to support including old aged dependent parents and he is sole bread earner of his family. His brother has also met with an accident. His brother is also dependent upon him. He has been bonafide throughout in his conduct before the court, hence lenient view should be taken towards him.
Since the cases of dishonoring of the cheques are on high rise in the society, therefore, court is not inclined to take lenient view and release the convict under Probation of Offenders Act as it would not be having any deterrent effect.
Almost 2 years have elapsed since the cheque was dishonored and the same has yet not been repaid to the complainant.
Keeping in view this conduct of the convict, no leniency ought to be granted to him. The object of Section 138 N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noticed that when this offence was inserted in the statute in 1988, it provided for imprisonment upto one year which was revised to two years following the amendment to the Act in 2002, which makes it quite evident that the legislative intent to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation.
After hearing the arguments, court is of the considered opinion that convict Sh. P. C. Rawal is sentenced to simple imprisonment for three months and he is further liable to pay a compensation of Rs. 1,30,000/-(Rs. CC No. 78/10 Page 28 of 29
Swadesh Bansal vs M/s Prashna Electric Equipments One lac thirty thousand only) to the complainant within two months from today i.e.12.03.2013 failing which, he will be liable to further simple imprisonment of three months.
At this stage, Ld. Counsel for the convict has filed an application for suspension of sentence, so that he can file an appropriate appeal before the appropriate court.
Surety is present. At convict's request, previous personal bond and surety bond of the accused is extended for 30 days.
Come up before this court on 12.04.2013. Copy of the judgment and order on sentence is given free of cost to the convict.
Announced in open court (Deepika Singh) today i.e. on 12.03.2013 MM - 03 NI Act / Central / Delhi CC No. 78/10 Page 29 of 29