Delhi District Court
Om Prakash vs . Narender Singh on 8 May, 2014
Om Prakash vs. Narender Singh
IN THE COURT OF MS. SHREYA ARORA MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
CC No. 28/4/05
U/s 138 of the Negotiable Instruments Act, 1881.
PS Sarojini Nagar
Om Prakash Sharma
son of Late Mr. Tej Pal Sharma
r/o 22 M, Sector4, DIZ Area,
Raja Bazar, New Delhi110001
....... Complainant
Versus
Narender Singh
son of Mr. Jeewan Singh,
r/o 6558, Qutab Road,
Ram Nagar, New Delhi
....... Accused
a Date of Institution: 03.07.2007
b Offence complained of: 138 of N I Act, 1881.
c Plea of accused: Pleaded not guilty
d Arguments heard on: 06.05.2014
e Final order: Convicted
f Date of judgment: 08.05.2014
JUDGMENT
1. By way of the present judgment, I shall decide the complaint case u/s 138 of the Negotiable Instruments Act, 1881 filed by the complainant Mr. Om Prakash son of Late CC No. 28/4/05 1 of 14 Om Prakash vs. Narender Singh Mr. Tej Pal against the accused Narender Singh son of Late Mr. Jeevan Singh.
2. The facts in brief are that Narender Singh approached the complainant for taking a friendly loan of Rs.25,000/ (rupees twenty five thousand only) and issued an account payee cheque of Rs.25,000/ (rupees twenty five thousand only) bearing no. 878799 dated 20.04.2007 drawn on Bank of Maharashtra, UPSC, Extension Counter, New Delhi01 in favour of the complainant. However, on presentation of the said cheque it was dishonoured with remark "funds insufficient" vide returning memo dated 23.04.2007 and complainant received this information on 25.04.2007. The complainant thereafter, gave a legal notice dated 23.05.2007 to the accused through speed post/POD thereby calling the accused to make the payment within 15 days of receipt of notice. It is alleged that the notice sent to the accused was duly served upon him on 25.05.2007 as he acknowledged the receipt of notice on POD. But inspite of receipt of notice, the accused failed to make the payment. Hence, the present complaint under section 138 of the Negotiable Instruments Act, 1881.
3. After the complaint was filed, the complainant led his pre CC No. 28/4/05 2 of 14 Om Prakash vs. Narender Singh summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the material and documents on record, summons were issued against the accused Narender Singh vide order dated 03.07.2007 by my Ld. Predecessor.
4. On appearance of the accused, notice u/s 251 Cr.PC dated 29.04.2010 was served upon to the accused to which he took no specific defence and only pleaded not guilty and claimed trial.
5. To support his case, the complainant examined himself as CW1. CW1 was examined, cross examined and discharged on 03.06.2011. CW1 tendered his evidence by way of affidavit Ex.CW1/1. CW1 exhibited original cheque bearing no. 878799 dated 20.04.2007 drawn on Bank of Maharashtra, UPSC, Extension Counter, New Delhi of an amount of Rs.25,000/ (rupees twenty five thousand only) as Ex.CW1/A, cheque returning memo dated 23.04.2007 as Ex.CW1/B, legal demand notice dated 23.05.2007 as Ex.CW1/C, postal receipts as Ex.CW1/D to Ex.CW1/F. During his cross examination, CW1 deposed that he gave friendly loan of Rs.25,000/ (rupees twenty five thousand only) to the accused on 20.04.2007 in the CC No. 28/4/05 3 of 14 Om Prakash vs. Narender Singh presence of Mr. Kalra and one Mochi Mr. Sohanlal without interest. CW1 denied the suggestions that the cheque was blank when given to him and the particulars have been filled by him. The evidence of the complainant was closed on the same day on 03.06.2011.
6. The statement of the accused Narender Singh u/s 313 Cr.PC read with section 280 Cr.PC was recorded on 04.07.2011 in which all the incriminating evidence alongwith exhibited documents were put to the accused in which he stated that I had received Rs.5,000/ (rupees five thousand only) from the complainant through cheque and had issued a blank cheque in favour of the complainant. The cheque in question was only signed by me and the other particulars were not filled by me. I had paid Rs.3,500/ (rupees three thousand and five hundred only) to the complainant by way of cash. The complainant has misused my cheque by filling in the particulars. Thereafter, the case was fixed for defence evidence.
7. The accused examined Mr. Manohar Kumar as DW1 who deposed that he was present at the house of the complainant when loan of Rs.5,000/ (rupees five thousand only) was obtained by the accused Narender CC No. 28/4/05 4 of 14 Om Prakash vs. Narender Singh Singh from the complainant and the accused Narender Singh issued a cheque in favour of the complainant. In his cross examination DW1 deposed that accused is his maternal uncle and he has also taken loan from the complainant for a sum of Rs.7,000/ (rupees seven thousand only).
8. Further, the accused examined himself as DW2 and deposed that he took Rs.5000/ from the complainant by cheque. The said cheque was cleared and the money was credited in his account on 15.09.2006. DW2 relied on his account statement for the period 15.10.2005 as Mark A. DW2 further deposed that he has paid interest of the loan amount to the complainant and since he could not pay the interest, the complainant has filed the present case. DW2 further deposed that when the cheque was issued, the complainant and the brother of accused Manmohan Kumar were present. It is stated that his brother Manmohan Kumar has been implicated by the complainant in similar cases. DW2 filed a copy of cheque no.114155 dated 23.09.2006 issued by complainant which is self cheque drawn on Bank of Baroda, Safdarjung Hospital Branch, New Delhi marked as Mark B. CC No. 28/4/05 5 of 14 Om Prakash vs. Narender Singh
9. I have heard final arguments on behalf of both the parties and perused the record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of. The main ingredients of section 138 of the Negotiable Instruments Act, 1881 are as follows:
(a) the accused issued a cheque on an account maintained by him with a bank.
(b) the said cheque has been issued in discharge of legal debt or other liability. For the purposes of this section, it is enumerated in the explanation to the section that "debt or other liability" means a legally enforceable debt or other liability.
(c) The said cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid CC No. 28/4/05 6 of 14 Om Prakash vs. Narender Singh legal notice of demand.
10.I would deal with each ingredient aforementioned to see whether the case against the accused has been proved or not.
11.WHETHER THE CHEQUE WAS ISSUED BY THE ACCUSED OR NOT The accused Narender Singh has himself admitted as to the issuance of cheque in his statement u/s 313 Cr.PC read with section 281 Cr.PC but stated that the same was given in blank and was only signed by him.
In Jaipal Singh Rana v. Swaraj Pal 149 (2008) DLT 682, it was held that by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act, 1881. In fact there is no alteration but only adding the amount and the date. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself. No law provided that in case of cheques the entire body has to be written by the drawer only.
CC No. 28/4/05 7 of 14 Om Prakash vs. Narender Singh In view of the evidence on record it stands proved that the cheque in question was issued by the accused.
12.WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VAILIDIY Perusal of the record reveals that the cheque in question which is Ex.CW1/A is dated 20.04.2007 which got dishonoured vide cheque returning memo which is Ex.CW1/B dated 23.04.2007. The same is not disputed by the accused and it clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque.
13.DISHONOUR OF CHEQUE IN QUESTION In the instance case, the complainant himself appeared in the witness box and exhibited the cheque returning memo as Ex.CW1/B. The dishonour of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused.
Therefore, considering the entire evidence on record it CC No. 28/4/05 8 of 14 Om Prakash vs. Narender Singh stands duly proved that the cheque in question was dishonoured vide cheque returning memo dated 23.04.2007 ExCW1/B with the reason "funds insufficient".
14.SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, CW1 the complainant himself has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 23.05.2007 Ex. CW1/C and it was sent to the accused on 23.05.2007 vide postal receipts exhibited as Ex.CW1/D to Ex.CW1/F. I have perused the legal notice of demand. It bears the same address of the accused as mentioned on the postal receipts and the complaint. Therefore, the legal notice was sent on the same address on which the summons were served. The accused has put in appearance in compliance of summons, therefore, it shows that accused was receiving communications, at the address mentioned on legal notice.
Considering the aforesaid, this court is of the considered CC No. 28/4/05 9 of 14 Om Prakash vs. Narender Singh opinion that the legal notice of demand dated 23.05.2007 Ex.CW1/C was duly served upon the accused.
15.WHETHER THE CHEQUE IN QUESTION WAS ISSUED AGAINST A LEGALLY ENFORCEABLE DEBT OR LIABILITY CW1 Mr. Om Prakash in his evidence by way of affidavit Ex.CW1/1 deposed that the accused Narender Singh issued the cheque in question in discharge of his legal liability towards the repayment of the loan amount. The accused has not disputed the issuance of cheque and the factum of loan being advanced to him by the complainant. The only contention of the accused is that he took loan of Rs.5,000/ (rupees five thousand only) and not of Rs.25,000/ (rupees twenty five thousand only) and his liability towards the complainant is only that of Rs. 5,000/ (rupees five thousand only)and not Rs.25,000/ (rupees twenty five thousand only).
Section 46 of the Negotiable Instruments Act, 1881 speaks of delivery and stipulates that the making, acceptance or endorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.
CC No. 28/4/05 10 of 14 Om Prakash vs. Narender Singh Further, Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made: (b) As to date - that every Negotiable Instruments bearing a date was made or drawn on such date. Moreover, there is presumption in favour of the complainant under Section 118 (a) of the Negotiable Instruments Act, 1881 that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the section 138 for discharge in whole or in part of his debt or liability.
Now the court shall examine whether the accused is successful in rebutting the presumption as contemplated by Section 118 (b) and Section 139 of the Negotiable Instruments Act, 1881.
CC No. 28/4/05 11 of 14 Om Prakash vs. Narender Singh It is sufficient for the complainant to prove the debt and liability by making a statement that the cheque was issued by the accused for payment of debt. The accused has taken a plea that the cheque in question was only qua his liability for Rs.5,000/ (rupees five thousand only) and not for Rs.25,000/ (rupees twenty five thousand only). But the accused has failed to bring anything on record to support his plea that he had taken loan only of Rs. 5,000/ (rupees five thousand only) as alleged by him. Further, counsel for the defendant could not elicit anything substantial in the cross examination of CW1 so as to discredit his testimony. There is nothing in the cross examination of CW1 which shows that the accused has no legal liability against the complainant for Rs.25,000/ (rupees twenty five thousand only).
Considering the evidence on record, I am of the opinion that the accused has failed to rebut the presumption under Section 118 (a), (b) and Section 139 Negotiable Instruments Act, 1881.
Therefore, it stands duly proved that the cheque in question which is Ex.CW1/A was issued and drawn in discharge of legal liability of the accused and for CC No. 28/4/05 12 of 14 Om Prakash vs. Narender Singh consideration.
16.THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE CW1, the complainant himself has deposed in his evidence by way of affidavit Ex.CW1/1 that despite service of legal notice of demand, accused failed to pay the cheque amount. Further, the accused has also admitted in his statement under Section 313 Cr.PC that he had not paid the cheque amount to the complainant and he is liable to pay the amount.
Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand.
17.In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of the Negotiable Instruments Act, 1881 have been duly proved on record. Accordingly, CC No. 28/4/05 13 of 14 Om Prakash vs. Narender Singh accused Narender Singh stands convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881.
Let copy of this judgment be supplied to the accused.
Announced in the open (SHREYA ARORA MEHTA) court on 08.05.2014 MM5 (South), Saket Courts, New Delhi Certified this judgment contains fourteen pages and each page bears my signatures.
(SHREYA ARORA MEHTA)
MM5 (South), Saket Courts,
New Delhi/08.05.2014
CC No. 28/4/05 14 of 14