Delhi District Court
Suraj Singh vs . Dilip Kumar on 18 April, 2023
IN THE COURT OF SH. SIDDHANT KUMAR,
METROPOLITAN MAGISTRATE (NI ACT)-06, SOUTH
DELHI DISTRICT, SAKET, NEW DELHI
JUDGMENT
DLST020619612019 SURAJ SINGH VS. DILIP KUMAR CT Cases No. 45880-2019 Sh. Suraj Singh S/o Sh. Rameshwar Singh, R/o 526-B, 3rd Floor, Flat No.11, Saidulajab, New Delhi-110030 ..............Complainant Versus Dilip Kumar S/o Sh. Atul Chandra Halder, C/o Manas Clinic R/o Gali No.1, Chaupal, Saidulajab, New Delhi-110030 .............. Accused Date of registration : 20.12.2019 Date of Judgment : 03.04.2023 Decision : Conviction Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2023.04.18 CT Case No. 45880/2019 16:25:57 +0530 Suraj Singh Vs. Dilip Kumar Page No.1 of 15 FACTS
1. The instant proceedings have originated out of a complaint preferred by Mr. Suraj Singh against Mr. Dilip Kumar for the offense under section 138, Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. A brief account of facts as per the complaint are that friendly relations existed between the accused and the complainant. The accused had taken a loan of Rs.1,70,000 in cash on 27.06.2019. This loan was given by the complainant to the accused for two months only. After expiry of the two months, in the first week of September, 2019 when the complainant contacted the accused for the return of the amount, the accused requested for further time of approximately a couple of months to which the complainant agreed subject to issue of post dated cheque of the amount lend by him.
3. In view of the aforesaid liability, the accused had issued a post dated cheque bearing no.157978 dated 24.10.2019 for Rs.
1,70,000/- in favor of the complainant which is Ex. CW-1/3. (hereinafter referred to as "cheque in question").
4. As per the instructions given by the accused, the complainant presented the said cheque on 28.10.2019 to his banker i.e. Oriental Bank of Commerce. The said cheque was dishonored by his banker on the ground "Drawer Signature Differs" and an intimation to this effect was given by his banker on 29.10.2019 the said intimation is Ex.CW-1/4. A legal notice (Ex. CW-1/5) was sent to the accused on 19.11.2019. The postal receipt of speed post delivery and tracking report are Ex.CW-1/6 Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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and CW-1/7 respectively. The accused did not pay the cheque amount within the prescribed period. Hence, the present complaint u/s 138 NI Act was filed.
APPEARANCE OF ACCUSED AND TRIAL
5. The accused appeared before this court for the first time on 29.07.2021 in response to the summons issued to him. Substance of accusation/notice under section 251 Cr.P.C. was served upon him and explained to him. He pleaded not guilty and claimed trial. He stated in his defence that he had taken a sum of Rs. 80,000/- approximately. The said amount was supposed to be repaid by him by way of installments of Rs. 300/- and Rs. 600/- daily. He further submitted that he has receipts in that regard also. The complainant had taken his property papers on the pretext of showing the same to some third person. The cheque in question was also kept in the said property papers. He admitted his signatures on the cheque in question. He had filled the amount in figures as Rs. 70,000/-, however, the complainant added '1' before Rs. 70,000/- and made the amount as Rs. 1,70,000/-. He denied that other details on the cheque in question are not in his handwriting. He further submitted that he had no liability to pay the cheque amount to the complainant. He also submitted that he had not received a return memo and legal notice. However, the address on the legal notice is the correct address.
6. In support of his case, the complainant reiterated the contents of the complaint in his evidence by way of affidavit which is Ex.CW-1/A. He relied upon the following documents:
Digitally signed by SIDDHANTSIDDHANT KUMAR Date: KUMAR 2023.04.18 16:26:26 CT Case No. 45880/2019 +0530 Suraj Singh Vs. Dilip Kumar Page No.3 of 15
(i) Copy of loan documents marked as Mark 'CW1/1(OSR)';
(ii) Copy of passbook as Ex.CW1/2 (OSR);
(iii) Original cheque as Ex.CW1/3;
(iv) Return Memo as Ex.CW1/4;
(v) Legal Notice as Ex.CW1/5;
(vi) Postal Receipts as Ex.CW1/6;
(vi) Speed Post Tracking Report as Ex.CW1/7;
(vii) Returned envelope of legal notice as Ex.CW1/8.
7. Ld Counsel for the accused was allowed to cross-examine the complainant in accordance with Section 145 (2) of NI Act. Complainant was duly cross-examined by Ld. Counsel for the accused on 12.12.2022. The complainant stated in his cross- examination that he and the accused have their shops in the same locality and he has known the accused since 8 to 10 years. He further stated that the accused asked him for financial help regarding a medical store. Therefore, he gave him a loan of Rs. 1,70,000/- in cash and the accused gave him the cheque in question in return. The whole amount was given in one transaction and was given to the accused in the complainant's shop. There was no one else present besides them in the shop at that time. To show his financial capacity the complainant relied upon documents pertaining to a used car loan he got from IDFC Bank for Rs. 6,05,000/-. He stated in his evidence by way of affidavit that before the said loan amount was sanctioned, he got some amount and was discussing with his wife over the phone Digitally signed SIDDHANT by SIDDHANT KUMAR KUMAR Date: 2023.04.18 CT Case No. 45880/2019 16:26:36 +0530 Suraj Singh Vs. Dilip Kumar Page No.4 of 15 that he does not need that much loan amount as the money was already arranged by him. The accused was present there and heard the aforementioned conversation after which he asked for Rs. 1.7 lakhs and assured that the same would be returned within two months. On being inquired by Ld. Counsel for accused the complainant submitted that the accused did not give a post dated cheque in September 2019 rather the said cheque was given at the time when he gave the loan amount in cash. He denied the suggestion that the said cheque was taken forcefully from the accused. He also denied the suggestion that he did any over writing on the cheque. He also denied that he got the cheque signed from someone else. Thereafter, Complainant evidence was closed vide separate statement of the complainant.
8. In his statement recorded u/s 313 Cr.P.C., the accused denied giving cheque to the complainant. He stated that he had written the amount as Rs. 70,000/- in his handwriting and someone else added the "1" before the Rs. 70,000/-. He had kept the cheques in his property papers which were misplaced for which he had filed a lost document report before the Delhi Police. On being inquired by the court, the accused stated that the cheque was signed by him before it was misplaced. He further stated that he had received the legal notice and accepted it. The accused admitted that there were some transactions with the complainant on a daily basis for which he had returned the amount he owed to him on a daily basis. He submits that he has a record of the same. According to the accused, there is some balance amount pending which he owes to the complainant, the Digitally signed by SIDDHANT SIDDHANT KUMAR Date: KUMAR 2023.04.18 16:26:46 +0530 CT Case No. 45880/2019 Suraj Singh Vs. Dilip Kumar Page No.5 of 15 amount that was pending at that time was Rs. 80,000/- for which he had paid Rs. 20,600/- and Rs. 3,960/- in different installments.
9. The accused chose to lead defense evidence and presented himself as a witness (DW-1). In his examination-in-chief he reiterated his defense which he had mentioned at the time of framing of notice u/s 251 Cr.P.C. He also stated that he did not receive the legal demand notice. He has placed on record a copy of a lost documents report lodged to the Delhi Police dated 24.12.2019 which is exhibited as Ex.DW-1/1.
10. In his cross-examination, the accused could not remember the date when he had taken loan from the complainant. He admitted that he has not mentioned the cheque in question on the lost document complaint made to the Delhi Police dated 24.12.2019 Ex.DW-1/1. It was voluntarily submitted by the accused that the cheque in question was inside the property papers. It was a signed cheque and there was no other check with the documents. He admitted that the lost document complaint was made after receiving the legal notice from the complainant in respect of the cheque in question. No written complaint was filed with the bank regarding the loss of the cheque in question as he had informed them orally. He further stated that the documents of his property were lost on 24.12.2019 and he had made the complaint immediately. He denied taking a loan of Rs. 1,70,000/- from the complainant.
LEGAL POSITION
11. For the just and reasonable decision of this complaint, one must bear in mind the law with respect to Section 138 NI Act.
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The requirements which needs to be fulfilled by the complainant as per Section 138 are the following -
i) The accused issued a cheque on a bank account maintained by him;
ii) The said cheque must have been issued, wholly or partly, in discharge of a 'legal debt or other liability';
iii) The said cheque was presented before the bank within 3 months from the date of issuance and was dishonored;
iv) The payee issued a legal demand notice, within 30 days of receipt of information of dishonor of the cheque;
v) The drawer failed to make payment within 15 days of receipt of the said legal demand notice;
Further, the NI Act raises two important legal presumptions in favor of the holder of the cheque as soon as the execution of cheque is proved. As per Section 118(a), NI Act, it shall be presumed that every negotiable instrument was 'made, accepted, transferred, negotiated or endorsed for consideration, unless the contrary is proved'. Furthermore, as per section 139, NI Act, it shall be presumed that 'the holder of cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved.' Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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12. The aforementioned presumptions were elucidated down by the Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 held as follows:
"..(i) 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defense.
The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defense. 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.
(iv) That it is not necessary for the accused to come in the witness box in support of his defense, Section 139 imposed an evidentiary burden and not a persuasive burden.."
13. Section 118 NI Act raises the following rebuttable presumptions with regard to the cheque in question in favor of the payee. These are -
1. Cheque was made or drawn for consideration.
2. Cheque was drawn on the date mentioned on cheque.
3. Cheque was delivered to the payee after its date and before maturity.
4. Cheque, if transferred to holder in due course, was transferred before maturity.
5. Cheque, if needed, was duly stamped.
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6. Holder of the cheque is a holder in due course.
14. Applying the above mentioned legal principles in the present complaint, there exists a presumption that the holder of cheque i.e. the complainant, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved. Thus, the burden of proof is upon the accused to prove the contrary. This presumption, as clarified in Basalingappa v. Mudibasappa is a rebuttable presumption and the standard of proof for rebutting the presumption is preponderance of probabilities. Accused is at liberty to rebut these presumptions by way of cross examination of the complainant or by leading substantive evidence in defense. Rebuttal of the accused need not be established conclusively, however such evidence must be brought in defense and the court must either believe the defense to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. Presumption has to be rebutted by proof and not by a bare explanation which is merely plausible.
ARGUMENTS
15. The accused's defense to rebut the presumptions against him is based on the following points - that no legal liability or other debt of Rs.1,70,000/- exists in favor of the complainant. He has also denied that the cheque in question was given to the complainant as it was kept with his property documents which were lost. He has denied receiving the legal demand notice, however, he admitted that it bears his correct address and the envelope of legal notice states 'Refused'. Reliance is made upon the judgment of Hon'ble apex court in C.C. Alavi Haji v.
Digitally signedSIDDHANT by SIDDHANT KUMAR CT Case No. 45880/2019 KUMAR Date: 2023.04.18 16:27:29 +0530 Suraj Singh Vs. Dilip Kumar Page No.9 of 15 Palapetty Muhammed (2007) 6 SCC 555, wherein it has been held that an accused who has not received the legal demand notice cannot claim the benefit of the defence of non-receipt of the same as once summons are served upon him, it is the duty of such an accused to make the payment of the cheque in question within 15 days of receiving summons from the court. The accused has not disputed the address mentioned in the legal notice during trial and perusal of the record shows that the legal notice was refused as mentioned in the return envelope (Ex.CW- 1/8) The legal notice being properly addressed and sent, gives way to the presumption under section 114 of Indian Evidence Act and Section 27 of the General Clauses Act that the legal notice has been received by the accused in light of the pronouncement in C. C. Alavi (supra). The plea of the accused regarding the non- receipt of the legal notice is accordingly rejected as being inconsequential.
16. It has been admitted by the accused that the cheque in question was drawn on an account maintained by the accused himself and the same belongs to him. The accused has also admitted that he has signed the cheque in question. The reason for dishonor of the cheque in question as mentioned in the cheque return memo is "drawer signature differs". The return memo has been duly stamped by the concerned bank. Therefore, the presumption of dishonor under Section 146 NI Act arises.
17. The ingredients necessary for raising the statutory presumptions under Section 118 and 139 are also fulfilled. As the presumptions are in favor of the complainant and it is upon the accused to rebut those presumptions.
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18. LAC for the accused during final arguments submitted that the accused was never served with the legal notice. But as the accused has admitted that it bears his correct address this defense of the accused has already been rejected by this court. He further stated that there exists no written agreement for the alleged loan given by the complainant to the accused, therefore there exists no legal liability. His next point of defense was that the said cheque was found and misused by the complainant. The cheque was kept with the property papers of the accused which were lost and he had registered a lost article complaint with Delhi Police. It has been alleged by LAC for the accused that the complainant got into possession of those documents alongwith the cheque and has misused it by filing the present complaint.
19. Ld. Counsel for the complainant has argued before the court stating that the loan amount was given by the complainant to the accused from the funds he had received from the IDFC First Bank car Loan. As he had arranged another source for the funds he loaned Rs.1.7 Lacs to the accused on 27.06.2019. He has relied upon the copy of the passbook of the complainant which is Ex.CW-1/2 (OSR), it shows that on 27.06.2019 an amount of Rs. 2 Lacs were withdrawn from the account. Ld. counsel submitted that this was the amount from which he gave cash loan to the accused, it was withdrawn on the same date as the date loan was given to the accused. He further submitted that as the accused has admitted the signatures on cheque and legal notice was sent in time which was refused by the accused, the presumptions are in his favor. He has replied to the accused's defense that the cheque was lost and the complainant somehow Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2023.04.18 CT Case No. 45880/2019 16:27:51 +0530 Suraj Singh Vs. Dilip Kumar Page No.11 of 15 obtained its possession and has misused it by bringing the court's attention towards the Lost Document Complaint (Ex. DW1/1) and the cross examination of the accused where it was admitted by the accused that he has not mentioned the cheque in question on the list of articles lost on EX.DW1/1. The said lost article complaint was reported on 24.12.2019. Ld. Counsel for the complainant has argued that the accused had filed the report only after the legal notice was sent or even more after the summons were sent to the complainant. Therefore, he alleges that the said defense of the accused is made up to avoid liability under Section 138 NI Act. Ld. Counsel for the complainant had also submitted that there are certain contradictions on the statements of the accused such as during framing of Notice u/s 251 Cr.P.C. the accused denied receiving the legal demand notice, whereas during the statement of accused u/s 313 Cr.P.C. he had admitted receiving and accepting the legal demand notice, thereby questioning the credibility of the statements of the accused.
FINDINGS AND REASONING
20. Scrutinizing the documents on record, examination of witnesses and considering the arguments made by both the sides, this court shall deal whether the accused's defenses rebut the presumptions up-to the standard of reasonability being that of a prudent man.
21. The case of the complainant is that a loan of Rs. 1.7 lakhs in cash was given to the accused and the cheque in question was given by the accused to return the said loan. The accused has denied the said liability and has argued that there exists no written agreement to show the said liability, but accused in his Digitally signed by SIDDHANT SIDDHANT KUMAR CT Case No. 45880/2019 KUMAR Date: 2023.04.18 16:28:03 +0530 Suraj Singh Vs. Dilip Kumar Page No.12 of 15 examination stated that there existed a liability in favor of the complainant for an amount of Rs. 80,000/- instead, which he has repaid and also stated that he has receipts showing repayment. But during the defense evidence, those receipts were never brought on record. On the contrary, the complainant has shown that on the date when the loan of Rs.1.7 Lakhs was given, he had withdrawn Rs.2 Lakhs from his account for that purpose. This can be verified from the bank statements which he has placed on record showing the said withdrawal on the same date as the date of giving loan. The arguments of the accused that there exists no legal liability as there is no written agreement does not inspire confidence.
22. Secondly, LAC for the accused has alleged that the cheque in question was lost but somehow the complainant got into its possession and had misused the cheque. To support this the Lost Article Complaint DW-1/1 is placed on record. But, as pointed out by the counsel for the complainant DW-1/1 does not specify the cheque in question in the list of lost articles and also that the said complaint was registered with the Delhi Police after the legal notice was sent to the accused or even more so after the present complaint u/s 138 NI Act was filed and summons were sent to the accused. Applying the reasonability of a prudent man here, it would be implausible that a person who loses a signed cheque would not mention it along with the documents that were lost to the Police while registering a lost article complaint. A signed cheque is a very valuable piece of instrument and a prudent man knows that it can be misused, therefore, he would not omit its loss while registering a complaint with the police.
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Also, the fact that the lost article complaint was registered after the legal demand notice was sent on the accused's address goes against the accused.
23. Furthermore, the accused's defense that he had only written Rs. 70,000/- in numbers on the cheque and someone else added '1' before it does not attract merit in law as the amount which is mentioned in words should be considered anyways and the cheque amount in words is 'One lakh Seventy Thousand only'.
VERDICT
24. On account of appreciation of facts, evidence and material on record, the accused has failed to raise a probable defense to rebut the presumption in favor of the complainant. Consequently, the complainant has successfully proven that the cheque in question which was given for a legally enforceable debt or liability was dishonored after it was presented within stipulated time and after its dishonor, the legal demand notice was sent to the accused within time. And upon non payment of the cheque amount by the accused, the present complaint was instituted within limitation. Therefore, as all the ingredients of an offense under Section 138 NI Act are fulfilled.
25. This court is of the considered opinion that the complainant has been able to successfully prove their case. Consequently, the accused Dilip Kumar is hereby convicted for the offense punishable u/s 138 NI Act qua the cheque in the present case.
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26. The convict be heard separately on the quantum of sentence.
Copy of this judgment be given free of cost to the convict.
This Judgment contains 15 pages and each page bears the signature of Ld. Presiding Officer.
Pronounced in the open court today i.e. on 03.04.2023.
Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date: 2023.04.18 16:28:30 +0530 (Siddhant Kumar) MM NI Act-06/South District, Saket Courts, New Delhi 03.04.2023 CT Case No. 45880/2019 Suraj Singh Vs. Dilip Kumar Page No.15 of 15