Delhi District Court
Shri Shiv Ram Dhir vs M/S Sunny Embroideries on 19 December, 2011
In the Court of Sh. Manoj Kumar : Senior Civil JudgecumMetropolitan
Magistrate of New Delhi District at Patiala House Courts, New Delhi
C. C No. 5410/1/09 (old no. 3/05)
Unique ID No. 02403R0465522005
In the matter of:
Shri Shiv Ram Dhir,
S/o Late Dalip Dhir,
R/o 1402B/13, Govind Puri,
Kalkaji, New Delhi110019 ....................Complainant
VERSUS
M/s Sunny Embroideries
Thru: Mr. Praveen Kumar, Proprietor,
S/o late Vidya Prakash,
R/o 1342B, Gali No. 13,
Govind Puri, Kalkaji,
New Delhi110019 .......................Accused
Date of Institution : 30.08.2005
Date of Arguments: 13.12.2011
Date of Judgment : 19.12.2011
COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881
JUDGMENT :
The present case was received by way of transfer as per the C. C. No. 5410/1/09 Page no. 1 of 10 order no. 145192/01/F.3(4)/MM dated 02.01.2009 passed by the learned District JudgeI and Sessions Judge, Delhi in pursuance of order no. 25/DHC/Gaz./VI.E2(a) dated 22.10.2008 passed by the Hon'ble Delhi High Court. It shall be disposed of in compliance of the said orders.
2. This is a complaint under section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) made by complainant Sh. Shiv Ram Dhir against accused M/s Sunny Embroideries through its proprietor Sh. Praveen Kumar stating that the accused approached the complainant and requested for a friendly loan of Rs.2,00,000/ which was granted by the complainant to the accused; that while receiving the said loan amount, to discharge his liability the accused had issued a post dated cheque bearing no. 371331 dated 19.2.2005 in a sum of Rs.2,00,000/ drawn on UCO Bank; that the cheque was presented by the complainant for encashment but the same returned unpaid on 16.7.2005 with return memo bearing remarks "Insufficient Funds"; that the complainant through his counsel sent a demand notice dated 04.8.2005 to the accused by registered AD as well as UPC whereby the accused was called upon to make payment of the cheque amount within 15 days of the receipt of the notice and the registered envelope was returned unserved whereas UPC envelope was served upon the accused; that despite receipt of the notice the accused did not make payment of the cheque amount within 15 days leading upto the making of the present complaint with a view to punish the accused for having C. C. No. 5410/1/09 Page no. 2 of 10 committed the offence punishable under section 138 of Act 26 of 1881 and to compensate the complainant.
3. The complaint was made on 30.8.2005 and on the same day the complainant was examined under section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by way of his affidavit. Alongwith his affidavit the complainant also tendered some documents on the basis of which cognizance of offence punishable under section 138 of Act 26 of 1881 was taken by my learned predecessor and an order under section 204 of Cr.P.C. was passed whereby the accused was summoned to face accusation for having committed offence punishable under section 138 of Act 26 of 1881.
4. In pursuance of the process issued by the court the accused appeared before the court and was admitted to bail. Subsequently, on 12.9.2008 a notice of accusation under section 251 Cr.P.C. was framed against the accused whereby he was charged with commission of offence punishable under section 138 of Act 26 of 1881 in respect of cheque bearing no. 371331 dated 19.2.2005. The notice of accusation was read over and explained to the accused to which he did not plead guilty and claimed trial.
5. In support of his case the complainant got examined himself as CW1 and during his examination tendered affidavit Ex. C1 alongwith documents Ex. CW1/A to Ex. CW1/F. The complainant was cross examined and thereafter evidence on his behalf was closed followed by C. C. No. 5410/1/09 Page no. 3 of 10 examination of the accused under section 313 Cr.P.C.
6. During his examination under section 313 Cr.P.C. the accused stated that the complainant was in the business of supplying man power and he was in the business of export of readymade garments. The accused further stated that he used to launder the money of the complainant and whatever money he had taken from the complainant in the past had already been returned. The accused further stated that during the period he used to launder money of the complainant, his one cheque in a sum of Rs. 4,00,000/ was left with the complainant which was presented by the complainant through his banker at Punjab and the money against the said cheque was already paid by him to the complainant but the complainant also insisted for making payment of interest on the said amount of Rs. 4,00,000/. The accused further stated that about fourfive years ago the complainant had, by force, taken him to the office of his counsel Mr. Rajender Singh and Mr. Bharat Bhushan at East of Kailash New Delhi and his friend Mr. Devender Kumar also accompanied him. The accused further stated that in the office of counsel for the complainant two blank signed cheques including the cheque Ex. CW1/A was taken by the complainant for him under compulsion. The accused further stated that in one of the cheques taken from him by force the name of one Surjit Singh was filled and presented for encashment whereas the second cheque was used in this case. The accused admitted that on its presentation for C. C. No. 5410/1/09 Page no. 4 of 10 encashment cheque Ex. CW1/A returned unpaid. The accused further stated that he had no knowledge about the notice and further stated that he did not owe any money to the complainant and therefore, there was no question of making any payment against the cheque.
7. In his defence the accused got examined DW1 Sh. Lalit Kumar and thereafter, defence evidence was closed.
8. I have heard counsel for the parties and have gone through the material on record carefully.
9. Having drawn my attention on the testimony of CW1 Sh. Shiv Ram Dhir, documents Ex CW1/A to Ex. CW1/F and the statement of the accused it is submitted by counsel for the complainant that the accused had taken loan of Rs.2,00,000/ from the complainant and to discharge his liability towards the complainant he had drawn cheque Ex. CW1/A and when the said cheque was presented by the complainant for encashment the same returned unpaid alongwith memo Ex. CW1/B due to insufficient funds in the account of the accused. It is further submitted by counsel for the complainant that a demand notice dated 04.08.2005 was served by the complainant upon the accused whereby the accused was called upon to make payment of the cheque amount within fifteen days of the receipt of the notice but the accused having received the notice did not make payment of the cheque amount. Having drawn my attention on the statements of the complainant and the accused recorded on 13.01.2010 it is further submitted C. C. No. 5410/1/09 Page no. 5 of 10 by counsel for the complainant that during the pendency of the present case the accused admitted his liability and also made payment of Rs.15,000/ to the complainant. It is further submitted by counsel for the complainant that in his bond executed before the court after his appearance the accused has given the same address as mentioned on the notice sent to him and during his examination under section 313 Cr.P.C. the accused had admitted that earlier he used to reside at 1342B/13, Govind Puri, Kalkaji, New Delhi. It is further submitted by counsel for the complainant that all the ingredients of offence punishable under section 138 of Act 26 of 1881 and conditions precedent for making the complaint have been proved by the complainant against the accused and therefore, the accused be convicted for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheque Ex. CW1/A.
10. Percontra, having drawn my attention on the testimony of DW1 Sh. Lalit Kumar and the statement of accused it is submitted by counsel for accused that cheque Ex. CW1/A was not drawn by the accused to discharge any liability or debt and the same was taken by force by the complainant in blank signed condition alongwith another cheque and both the cheques were misused by the complainant. It is further submitted by counsel for the accused that the accused is innocent and he be acquitted.
11. I have given my thoughtful consideration to the submission made on behalf of the parties.
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12. From the testimony of CW1 Sh. Shiv Ram Dhir it has been established that the cheque Ex. CW1/A was delivered by the accused to the complainant.
13. Accused has admitted that the cheque belongs to him but his defence is that the cheque was taken by the complainant from him under compulsion in the office of counsel for the complainant and the same was given in blank signed condition. As per the version of the accused the cheque was given not to discharge any debt or liability. This contention of the accused cannot be accepted.
14. During the trial of the case, on 13.01.2010 the accused in writing admitted that he had to pay Rs.2,00,000/ to the complainant. The accused also made payment of Rs.15,000/ out of the said amount of Rs. 2,00,000/. This conduct of the accused is relevant under section 8 of the Indian Evidence Act,1872. Further the signature and other writing on the cheque appears to be in the same handwriting and by the same pen.
15. As per the statement made by the accused under section 313 Cr.P.C. about fourfive years ago the complainant had, by force, taken him to the office of his counsel Mr. Rajender Singh and Mr. Bharat Bhushan at East of Kailash New Delhi and his friend DW1 Sh. Devender Kumar also accompanied him where he was forced to deliver two blank signed cheques including cheque Ex. CW1/A. This version of the accused is not supported by DW1 Sh. Devender Kumar who deposed that he alongwith the accused C. C. No. 5410/1/09 Page no. 7 of 10 visited the office of counsel for the complainant at Kailash Colony and not at East of Kailash New Delhi. There is no indication in the testimony of DW1 Sh. Devender Kumar to suggest that the accused was taken forcefully at the office of counsel for the complainant. The court believes the testimony of the complainant and holds that cheque Ex. CW1/A was drawn by the accused in favour of the complainant to discharge his debt.
16. From the testimony of CW1 Sh. Shiv Ram Dhir, cheque Ex. CW1/A and return memos Ex. CW1/B it has also been proved that cheque EX. CW1/A was presented by the complainant for encashment and the same returned unpaid due to insufficient funds in the account of the accused.
17. During his examination it is deposed by CW1 Sh. Shiv Ram Dhir that after return of cheque Ex. CW1/A a demand notice dated 04.08.2005, a copy of which is Ex. CW1/C, was sent by the complainant to the accused through registered post and AD vide receipts Ex. CW1/D and Ex. CW1/E and the accused ignored to receive the notice sent by registered post whereas the notice sent by UPC was served upon him. During his examination under section 313 Cr..P.C. the accused expressed his ignorance about the service of notice.
18. A perusal of documents Ex. CW1/C, Ex/ CW1/D, Ex. CW1/E and Ex/. CW1/F reveals that the demand notice was sent to the accused at 1342B, Gali no. 13, Govind Puri, New Delhi and the notice sent by C. C. No. 5410/1/09 Page no. 8 of 10 registered post received unserved as despite intimation given to the addressee i.e. the accused he did not make himself available at the house. After service of process of this court upon the accused he appeared and subsequently bonds were furnished on 11.10.2007 wherein the address of the accused and his suretywife Smt. Swaran Kanta was mentioned as 1342 B/13, Govind Puri, Kalkaji, New Delhi. During his examination under section 313 Cr.P.C. the accused admitted that at the relevant time he used to reside at 1342B/13, Govind Puri, Kalkaji, New Delhi. In the light of the material before the court this court is of the view that the notice sent by registered post was not served upon the accused due to his own conduct and as the notice was also sent to him by UPC at proper address which had not returned undelivered therefore, I hold that the complainant has succeeded in proving that after dishonour of cheque Ex. CW1/A, a notice dated 04.8.2005, a copy of which is Ex. CW1/C, was duly served upon the accused.
19. From the testimony of CW1 Sh. Shiv Ram Dhir and the statement of the accused it has also been proved that despite receipt of notice Ex. CW1/C the accused did not make payment of the cheque amount within fifteen days.
20. In the light of material before the court it has been proved that to discharge his debt towards the complainant, the accused had drawn cheque Ex. CW1/A in favour of the complainant and when the said cheque C. C. No. 5410/1/09 Page no. 9 of 10 was presented by the complainant for encashment the same returned unpaid on 16.07.2005 due to insufficient funds in the account of the accused. It is also proved that a legal notice dated 04.08.2005 was sent by the complainant to the accused on 05.08.2005 by registered post with AD and UPC and having received the said notice the accused did not make payment of the cheque amount within fifteen days of the receipt of the notice.
21. The accused has failed to prove that cheque Ex. CW1/A was taken from him in blank signed condition by force and the testimony of DW1 Sh. Lalit Kumar is found not reliable. In these circumstances, accused Praveen Kumar is found guilty and convicted for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheque Ex. CW1/A. Let the accused be heard on the point of sentence on 22.12.2011.
Announced in the open court (Manoj Kumar)
on this 19 day of December, 2011
th
Senior Civil Judgecum
Metropolitan Magistrate
New Delhi: 19.12.2011
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