Delhi District Court
Shiv Kumar vs . Durgesh on 13 November, 2018
IN THE COURT OF SHRI SUNIL GUPTA, M.M (CENTRAL): TIS HAZARI
COURTS, DELHI
CC No. :510038/16
U/s : 138 N. I. Act
Shiv Kumar Vs. Durgesh
JUDGEMENT
1. Sl. No. of the case : 510038/16
2. Date of institution of the case : 18.03.2016
3. Name of complainant :Shiv Kumar S/o Late Sh.
Rajendra Singh, R/o 9526/1,
Multani Dhanda Paharganj,
New Delhi
4. Name of accused, parentage
& address :Durgesh W/o Sh. Kanhaiya Lal,
R/o B-157, Block-B, New Ranjit
Nagar, Delhi
5. Offence complained of
or proved : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Convicted
8. Date on which order was
reserved : 12.11.2018
9. Date of pronouncement : 13.11.2018
CC No. 510038/16 1 /7 Shiv Kumar Vs. Durgesh
BRIEF REASONS FOR THE DECISION OF THE CASE
1. Briefly stated the facts as per the complaint are that the accused approached the complainant with a request for availing a friendly loan of Rs.2,00,000/- in the first week of January, 2016 for a period of one month and the complainant considering request and relations with the accused, advanced her a loan of Rs.2 lacs for a period of one month. After expiry of one month period, the complainant demanded his money back but the accused started making false excuses on one pretext or another and after repeated requests, demand and percussions, the accused in discharge of her legal liability and debt issued one cheque bearing no. 02515 dated 21.02.2016 of Rs.2 lacs drawn on Allahabad Bank, Sadar Bazar, Delhi with an with an assurance that the said cheque would definitely be honored on its presentation. The complainant deposited the above said cheque for encashment with his bank i.e. State Bank of India, Tis Hazari Branch, Delhi but to his utter shock, same was dishonored due to "Insufficient Funds" vide memo dated 24.02.2016. Thereafter, complainant served a legal demand notice dated 26.02.2016 to the accused through speed post at her address. The legal notice was duly received by her but despite that no payment was made instead she sent a false reply dated 05.03.2016. So, present case was filed under Section 138 Negotiable Instruments Act.
2. On the basis of pre-summoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act vide order dated 29.03.2016. Accused put her appearance on 26.08.2016. Notice under Section 251 Cr.P.C was framed against her on same day to which she pleaded not guilty and claimed trial.
3. The complainant adopted his pre-summoning evidence.
CC No. 510038/16 2 /7 Shiv Kumar Vs. Durgesh Complainant has relied upon the documents i.e cheque bearing no.02515 dated 21.02.2016 of Rs.2 lacs drawn on Allahabad Bank, Sadar Bazar, Delhi , returning memo dated 24.02.2016, legal notice dated 26.02.2016 and Postal receipts. He was not cross examined by Ld. Defence counsel despite several opportunities having been granted for this purpose.
4. After conclusion of post-notice evidence, the statement of accused was recorded under Section 313 Cr.P.C in which she stated as under:-
"She was innocent. She did not even know the complainant herein and no transaction as alleged ever took place between them. She had issued the cheque in question in blank to Mr. Sunny. She had borrowed an amount of Rs.35,000/- from Mr. Sunny and she was ready to pay the remaining installments (she has already paid an amount of Rs.16000/- approx to him)". No witness was examined by her in defence despite opportunity to this effect. Accordingly, DE was closed by order of this Court dated 18.09.2018.
5. Arguments heard.
Now Section 138 Negotiable Instrument Act provides as under :-
Dishonour of cheque for insufficiency, etc., of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, or any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [ a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
CC No. 510038/16 3 /7 Shiv Kumar Vs. Durgesh Provided that nothing contained in this Section shall apply unless--
i) that cheque has 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;
ii) the payee or the holder in due course of the cheque, as the case may be, makes 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 receipt of information by him from the bank regarding the return of the cheque as unpaid; and
iii) the drawer of such cheque fails to make payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
So the perusal of the Section shows that complainant has to prove following things in order to prove his case :-
i) the cheque was drawn by the accused for payment of due amount to the complainant;
ii) the amount was due on the part of the accused for discharge of any legally enforceable debt or other liability;
iii) the cheque was returned dishonoured;
iv) the legal notice was given to the accused within stipulated period;
v) even after the receipt of the legal notice, the accused chose not to make the payment.
Complainant has submitted that he has satisfied and proved all the ingredients of the offence under Section 138 Negotiable Instrument Act. He has further submitted that presumptions under Section 118 & 139 Negotiable Instrument Act are also there and in view of the aforesaid presumptions, the case of the complainant has been proved. The presumptions mentioned above are as under :-
CC No. 510038/16 4 /7 Shiv Kumar Vs. Durgesh Section 118 Negotiable Instrument Act- Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made :-
a) of consideration-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
b) as to date-- that every negotiable instrument bearing a date was made or drawn on such date;
c) as to time of acceptance--that every accepted bill of exhange was accepted within a reasonable time after its date and before its maturity;..........
Section 139 Negotiable Instrument Act- Presumption in favor of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.
Complainant has argued that the signature on the cheque in question and receipt of statutory legal notice is not disputed by the accused. It has also been submitted that neither the complainant was cross-examined nor any defence witness has been examined by accused. So, the case of the complainant remains unrebutted. He has prayed for conviction of the accused.
On the other hand, it was argued by Ld. Defence counsel that accused was not having any liability towards the complainant herein as she had transacted with one Mr. Sunny. Same defence was disclosed by her in reply to legal notice dated 05.03.2016 (Ex.CW1/6). She was not even knowing the complainant herein. It was further argued that the signature on the cheque in question is not that of accused. Her cheque CC No. 510038/16 5 /7 Shiv Kumar Vs. Durgesh is alleged as having been misused by complainant. He has prayed for acquittal of accused.
It is to be seen that the cheque in question i.e. cheque bearing no. 02515 amounting to Rs.2 lacs drawn on Allahabad Bank, Sadar Bazar, Delhi is apparently bearing the signature of accused Durgesh. She did not deny the same in reply to notice u/s 251 Cr.P.C. before Ld. Predecessor on 26.08.2016. She also did not deny the same during her statement u/s 313/281 Cr.P.C. She has denied the same for the first time at the stage of final arguments, however, that denial in itself cannot be of any consequence as nothing was brought on record by way of evidence to prove that same was not signed by her. So, this defence is of no help to her.
The receipt of statutory legal notice is not disputed as same was duly replied on behalf of accused. The reply dated 05.03.2016 sent through Ld. Counsel of accused has been filed on record by complainant alongwith his complaint. Main defence of the accused is that she was not knowing the complainant herein and the cheque in question was issued in blank with her signature only to one Mr. Sunny as security for loan of Rs.35000/- taken by her out of which she has already repaid an amount of Rs.16000/-. Also, cheque in question has been misused by complainant who is unknown to her. Similar facts have been mentioned in the reply Ex.CW1/6 sent on behalf of accused, however, as per the same, the loan was taken by her husband. Accused has stated about misuse of cheque in question (by complainant herein) given to Mr. Sunny in reply to notice u/s 251 Cr.P.C. dated 26.08.2016 and on that basis, opportunity was given to her to cross examine the complainant to establish said defence but same was not availed repeatedly and ultimately,the cross- examination of complainant was recorded as "Nil.(Opportunity granted)" on CC No. 510038/16 6 /7 Shiv Kumar Vs. Durgesh 29.11.2017. As mentioned earlier also, no witness was examined by accused in her defence too despite opportunity. Defence has sought to rely on the statement of accused u/s 313/281 Cr.P.C. to discredit the case of complainant, however, it is settled law that the statement under section 313 Cr.P.C. made by accused is not the evidence of accused and it cannot be read as part of evidence, in a case under Section 138 NI Act. Reliance is placed on Judgment of Hon'ble Delhi High Court titled as V. S. Yadav Vs. Reena 172 (2010) DLT 561 in which it was held as under:
"If mere statement under Section 313 Cr.P.C.or under Section 281 Cr.P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But,it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
(emphasis supplied) So, it appears that accused has miserably failed to prove her defence or to create doubt in the case of complainant.
Accordingly, considering the presumptions as existing in favour of the complainant (which remains unrebutted), accused Durgesh stands convicted for the offence under section 138 NI Act.
Announced in the SUNIL Digitally signed
by SUNIL GUPTA
Date: 2018.11.13
open Court on 13.11.2018 GUPTA 16:15:27 +0530
(SUNIL GUPTA )
Metropolitan Magistrate
(Central-02), Tis Hazari, Delhi.
CC No. 510038/16 7 /7 Shiv Kumar Vs. Durgesh