Delhi District Court
Rangappa vs Sri Mohan, Sc In Criminal Appeal No. 1020 ... on 8 October, 2013
IN THE COURT OF R.L. MEENA, METROPOLITAN
MAGISTRATE03, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No. 4992/07
Unique No.:
IN THE MATTER OF
Puran Singh Yadav
S/o Sh. Dal Chand,
R/o B306/V, Gali No. 25,
Mandoli, Ashok Nagar,
Shahdara, Delhi .... Complainant
Versus
Satbir Singh Yadav
S/o Sh. Udal Singh,
R/o 1/3334, Ram Nagar,
Near Buddha Nursing Home,
Shahdara, Delhi .... Accused
Date of institution : 23.02.06
Date of argument : 19.09.13
Date of judgment : 08.10.13
COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881
CC No. 4992/07 1
JUDGMENT
01. This is a complaint under section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) read with section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) made by the complainant Puran Chand Yadav stating that in discharge of dues and liabilities, accused issued three cheques bearing No. 885107, 885108 and 886109 all dt. 16.12.05 of Rs.3,00,000/, Rs.1,00,000/ and Rs. 50,000/ respectively, all drawn on Bank of Baroda against outstanding balance of Rs. Nine lakhs against the property bearing municipal No. 306/V, Ashok Nagar, Shahdara, Delhi which had been purchased by the accused from complainant. It is further stated that aforesaid cheques were presented by the complainant in its banker but the aforesaid cheques were returned with remarks 'Payment Stopped by Drawer' vide memo dt. 17.12.05 Ex. CW 1/B. It is further stated that complainant sent a legal demand notice dt. 06.01.2006 through regd. AD but accused did not pay the aforesaid cheques amount to him within the stipulated period of fifteen days from date of receipt and knowledge of the notice leading up to making the present complaint with a view to summon, try and punish the accused for having committed offence punishable u/s 138 of the Act 26 of 1881.
CC No. 4992/07 2
02. The complaint was made on 23.02.06 before my Learned Predecessor court and thereafter after having receipt affidavit of the complainant along with some documents during his examination under section 200 Cr.P.C., my learned predecessor also took cognizance of offence punishable under section 138 of the Act 26 of 1881 and passed a summoning order under section 204 of Cr.P.C. whereby the accused was summoned to face the accusation against him.
03. In pursuance of the process issued by the court, the accused appeared and was admitted to bail. Subsequently on 01.05.07 a notice of accusation under section 251 of Cr. P.C. was framed against accused whereby he was charged with the commission of the offence punishable under section 138 of Act 26 of 1881 in respect of cheques bearing Nos. 885107, 885108 and 886109 all dated 16.12.05 of Rs. 3,00,000/, Rs.1,00,000/ and Rs.50,000/ respectively, all drawn on Bank of Baroda. The notice of accusation so framed was read over and explained to the accused to which he did not plead guilty and therefore, the accused was put on trial.
04. In support of his case, the complainant got examined himself as CW1 and during his examination in chief tendered affidavit along with documents Ex. CW1/A to Ex. CW1/E. Complainant Puran Singh as CW 1 was cross examined on behalf of accused and thereafter, evidence on behalf of CC No. 4992/07 3 complainant was closed and accused was examined under section 313 of Cr. PC.
05. During his examination under section 313 of Cr. PC, he stated that cheques were not issued against any liability. In fact he issued the cheques in question to the complainant as a loan on his request. It is further stated that since he already made payment to the complainant by cash as per his demand, therefore stop payment was made. It is further stated that all the cash payment was made in good faith and herein the cheque has been misused by the complainant. It is also stated that he replied the legal notice of the complainant.
06. In his defence the accused got examined DW1 Ct. Raj Singh (for proving his complaint sent to the police) and DW2 Sh. Harnam Singh, Officer, OBC (for proving the sale deed dt. 12.11.05, affidavit dt. 13.12.05, GPA dt. 29.06.87, GPA 21.07.88, Agreement to sell dt. 04.10.05 with receipt, GPA dt. 28.02.82, Khatoni , GPA dt. 1406.83 and GPA dt. 28.02.84).
07. I have heard counsel for parties at length and gone through the record and written arguments carefully filed by both parties.
08. Having drawn my attention on the testimony of complainant and on the written arguments. It is stated by counsel of complainant that a property bearing No. 306/V, Ashok Nagar was purchased by accused from wife of the CC No. 4992/07 4 complainant initially in the year of 20042005 but when he failed to make the payment of said property, then it was repurchased by wife of complainant with the payment of Rs. Nine lakhs through bank draft but same was not returned by accused to the complainant. However, accused, in discharge of his liability, issued the cheques in question. It is further stated that accused also stated in his legal notice that he gave a sum of Rs. 4,00,000/ and Rs. 1,80,000/in cash on 16.12.05 and 17.12.05 respectively but complainant did not issue receipt to the same nor the cheques in question. It is further stated that accused also sought time for making the payment in mediation cell on dt. 15.02.08 and 04.07.13 which shows that accused has not discharged his liability. It is further stated that accused has also not put suggestion to the complainant in his course of cross examination with this effect that accused did not issue the cheques of Rs. 4,50,000/ out of Rs. Nine lakhs as a consideration of said property. Counsel for complainant submits that complainant has shown that accused issued the cheques in question in discharge of his legal liability towards the complainant, therefore, he should be convicted and punished.
09. On the contra, counsel for accused stated through written arguments that accused purchased house bearing No. 306/V, Ashok Nagar Delhi from the complainant and entire payment was made at the time of purchasing the CC No. 4992/07 5 house as the house was in the name of other person, the entire receipt of payment is already on record and same is proved through bank evidence. It is further stated that complainant refused to vacate the aforesaid house on the pretext that his reputation/ image has come down in the eyes of the society due to selling of aforesaid property to accused. It was also assured by the complainant to the accused that he would arrange a loan on his wife's name from the bank and shall make the entire payment to the accused. It is further stated that as per the aforesaid assurance of the complainant, a loan was arranged by the wife of complainant and purchased the house from accused and Rs. Nine lakhs was transferred in the accused's account through the bank. It is further stated that complainant again demanded a sum of Rs. 4,50,000/ from accused as a loan. On the aforesaid request, he issued three cheques in question in favour of the complainant on 16.12.05. It is further stated that complainant also issued a receipt of Rs. 7,80,000/ in which he admitted that he will withdraw present case. It is further stated that complainant told the accused that cheques in question have been misplaced therefore Rs. 4,50,000/ is urgently required. On the aforesaid demand, accused gave sum of Rs, 4,50,000/ in cash to the complainant and make the stop payment for the aforesaid cheques. It is further stated that on 18.12.05, it came in the notice of accused that complainant has got the amount of Rs. CC No. 4992/07 6 4,50,000/ by misleading to him and also got the cheques in question with malafide intention and in this regard, a complaint dt. 18.12.05 was made in PS Mansarover Park. It is further stated that case of complainant is also liable to be dismissed as house bearing No. 306/V, Ashok Nagar is in the name of complainant's wife therefore complainant's version as mentioned in para no. 2 of the complaint is not reliable. It is further stated that accused has shown the circumstances wherein the cheques in question were handed over to the complainant which shows that the cheques in question were not issued to the complainant against any liability therefore accused is liable to be acquittal.
10. I have given my thoughtful consideration to the submissions made on behalf of the parties.
11. After having gone through the rival submissions of both parties and perusal of the record carefully including written arguments, I find that complainant has been able to prove his complaint against the accused. In the present complaint, It is a admitted fact that complainant and accused are relative to each other and cheques in question Ex. CW 1/A, CW1/A2 and CW1/A3 were issued by the accused to the complainant. further, It is also admitted fact there was a property transaction between them. The main contention of the accused is that cheques were not issued against any liability. Rather, same were issued for the purpose of loan being given to the CC No. 4992/07 7 complainant. After perusal of the record, I find that accused, in rebuttal of presumption, has neither examined to himself as defence witness nor brought on record any document in evidence showing that cheques in question were given to the complainant as a loan purpose. Further, no witness has been summoned before whom cheques in question were handed over to the complainant for the loan purpose. It is to be noted here that accused summoned Ct. Raj Singh (DW1) along with recored Ex. DW1/A showing that a complaint was sent to police station regarding misusing of cheques in question by complainant. The relevant extracts of aforesaid complaint of accused dt. 18.12.05 are reproduced herein for proper appreciation of facts:
He received a sum of Rs 900000 (nine lakh rupees ) after selling a built up property. On demand of complainant and his brothers, he issued three cheques i.e. Cheque of Rs. 3,00,000/, Rs. 1,00,000/ and Rs. 50,000/ (total Rs. 4,50,000/) all dated 16/12/05. On 16.12.05, again complainant and his brother requested for cash amount in place of aforesaid cheques as their creditors were standing at their doorstep for their outstanding dues. In view of aforesaid situation, he paid a sum of Rs 4,00,000/ and 1,80,000/ to complainant and his brother on 16/12/05 and 17/12/05 respectively in cash. Complainant and his brother also assured that they would handover aforesaid cheques but they misused the same. They also extended threat for misusing the cheques in question.
After bare perusal of complaint of accused, I find it is a merely an CC No. 4992/07 8 information about the alleged circumstances in which cheques in question were handed over to complainant. Now one question is required to be posed as to whether showing a complaint which sent to police station regarding misusing the cheques in question by complainant is sufficient for rebuttal of mandatory presumption. For answering the question, I rely upon citation i.e Rangappa Vs Sri Mohan, SC in criminal appeal No. 1020 of 2010 in which Hon'ble Supreme Court held as follows:
Once the cheque relates to the account of accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplation u/s 139 of the Negotiable instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec. 139 of NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that near plausible explanation is not expected from the accused and it must by more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court.
In the light of aforesaid observation, I find that accused has failed to bring on record the sufficient evidence and circumstances which support his version. A complaint referring to the police about misusing the cheque is not sufficient. Other plausible explanations are required to rebut the mandatory presumption like documentary evidence or oral evidence. In the present complaint, accused and complainant both admitted that initially accused CC No. 4992/07 9 purchased property bearing no. 306/V, Ashok Nagar Delhi from the complainant but later on the same property was purchased by the wife of complainant. It is to be worth noticing here that accused claimed that he paid entire sale consideration amount to the complainant and same is proved through bank evidence. After having gone through defence evidence, I find that accused examined two witnesses in his defence. First witness is Ct. Raj Singh and second witness is Harnam Singh from OBC Bank who brought documents which are collectively Ex. DW 2/A. Perusal of aforesaid documents, I do not find any documents which may show that accused paid the sale consideration amount to the complainant. On the other hand, complainant claimed that initially accused purchased a property from the wife of complainant in year 200405 but when he failed to make the payment then property was repurchased by wife of complainant and sale consideration amount of Rs. Nine lakhs was paid to the accused through bank draft. It is relevant to note here that aforesaid payment is also admitted by the accused and same is also reflected by sale deed Ex. DW 2/A. It is further worth to note here that accused also filed two photocopy documents with the written arguments, first document is receipt allegedly shown about receiving the payment of Rs. 7,80,000/ by complainant and second document is statement of account (not named). It is settled proposition of law that document filed CC No. 4992/07 10 during the trial of the case does have evidential value. In the present complaint the aforesaid document filed by the accused with written arguments after conclusion of the trial which do not have any effect therefore same cannot be read in evidence. It is relevant to mention here that accused has already admitted in his statement u/s 313 Cr. PC that he replied the legal notice of the complainant which shows that he received the legal notice of the complainant which was sent through registered post.
From the above discussion it has emerged that accused had drawn cheques Ex. CW 1/A1, 1/A2 and 1/A3 in favour of complainant and when the said cheques were presented by the complainant for encashment the same but same were returned unpaid by the bank of accused with memo Ex. CW 1/B for the reason 'Payment Stopped by the Drawer'. It has also been proved that after return of the cheques as reason mentioned above, a demand notice dt. 06.01.06 Ex. CW 1/C was served by the complainant upon the accused within 30 days thereby he was called upon to make payment of cheques amount to the complainant within 15 days of the receipt of the notice. It has been proved that despite receipt of the notice the accused did not make payment against cheques Ex. CW1/A, Ex. CW1/A2 and Ex. CW1/A3 to the complainant.
12. All the ingredients of offence punishable under section 138 of the CC No. 4992/07 11 NI Act and the condition precedent for making a complaint have been proved by the complainant against the accused in respect of cheques Ex. CW1/A, Ex. CW1/A2 and Ex. CW1/A3, therefore accused Satbir Singh Yadav is found guilty of having committed the offence charged against him and according convicted for having committed offence punishable under section 138 of the Act 26 of 1881 in respect of cheques Ex. CW1/A, Ex. CW1/A2 and Ex. CW1/A3.
13. Let the convict be heard on the question of sentence on 20.10.2013.
Announced in the open court
Dt. 08.10.2013 (R.L. MEENA)
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
CC No. 4992/07 12
IN THE COURT OF SH R.L. MEENA, MM NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
CC NO. 4992/07 IN THE MATTER OF Puran Singh Yadav S/o Sh. Dal Chand, R/o B306/V, Gali No. 25, Mandoli Ashok Nagar, Delhi .... Complainant Versus Satbir Singh Yadav, S/o Sh. Udai Singh, R/o 1/3334, Ram Nagar, Near Buddha Nursing Home Shahdara, Delhi. .... Accused (Judgment dt. 08.10.13 continued) ORDER ON SENTENCE The convict namely Satbir Singh Yadav was put on trial for having committed offence punishable under section 138 of Act of 1881 in respect of cheques Ex. CW 1/A1, 1/A2 and 1/A3. Vide my Judgment dt. CC No. 4992/07 13 08.10.13, accused was found guilty of having committed the offence charged against him and he was convicted for having committed the offence punishable under section 138 of Act 26 of 1881 in respect of cheques in question and the matter was posted for arguments on the quantum of sentence.
I have heard the convict and counsel for the convict and have gone through the material on record carefully. I have also heard counsel for the complainant on the question of sentence.
It is submitted by convict that he has not been previously convicted in any other case and he is the only person earning in his family and there are three sons and wife of the convict who are solely dependent upon him.
It is submitted by counsel for the complainant that the convict be sentenced appropriately and no leniency should be shown towards him. It is also submitted by counsel for the complainant that adequate compensation be awarded in favour of the complainant.
I have given my thoughtful consideration to the submissions made on behalf of the parties.
In the present case, as per the material on record, to discharge of his liability towards the complainant the convict had issued cheques Ex CW CC No. 4992/07 14 1/A1, 1/A2 and 1/A3 in favour of the complainant and when the said cheques were presented by the complainant for encashment, the same returned unpaid due to payment stopped by drawer. It has also been proved that after return of cheques Ex. CW 1/A1, 1/A2 and 1/A3 as unpaid a notice Ex. CW 1/C dt. 06.01.2006 was sent to the convict and he having received the same had failed to make payment of the cheuqe amount to the complainant.
In view of the law laid down by Hon'ble Supreme Court in Suganthi Suresh Kumar V. Jagdeeshan, (2002) 2 SCC 420, the convict cannot be released on probation and appropriate sentence is required to be passed.
The offence committed by the convict is not an act of passion and the same has been done with due deliberation. No ground for taking lenient view against the convict is made out.
The Hon'ble Supreme Court in Judgment dt. 11.10.2011 passed in Criminal Appeal No. 1902 of 2011 entitled R. Vijan V. Baby and another having discussed the provisions of Act 26 of 1881 and Cr. PC held as follows:
As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the CC No. 4992/07 15 courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9 % per annum as per the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.
In view of the Judgment passed by the Hon'ble Supreme Court in R. Vijyan's Case (supra) sentence of fine is also required to be passed against the convict as there are no special circumstances for dispensing with passing of such sentence.
Keeping in view all the facts and circumstances following sentence is passed against the convict namely Satbir Singh Yadav :
That convict is sentenced to undergo rigorous imprisonment for six months for having committed offence punishable under section 138 of Act 26 of 1881 in respect of cheques Ex. CW 1/ A, 1/A1 and 1/A2 and further sentenced to pay fine in a sum of Rs. 7,68,875/. In the event of his making default in payment of fine convict shall further undergo rigorous imprisonment for thirty days.CC No. 4992/07 16
It has been proved from the record that for the period of (approx.) seven years and nine months, the convict deprived the complainant of the use of cheques amount of Rs. 4,50,000/ owed by him to the complainant against cheques Ex. CW 1/A, 1/A1 and 1/A2 and interest thereon. Therefore, out of the fine of Rs. 7,68,875/, imposed upon convict, a sum of Rs. 7,63,875/ (Rs. 4,50,000/ as principle amount of cheque and Rs. 3,13,875/ as interest of cheque of Rs. 4,50,000/ as interest @ 9 % per annum thereon) shall be paid to the complainant as compensation under section 357 of the Code of Criminal Procedure, 1973.
Convict is also directed to pay cost of Rs. 5,000/ to the complainant under section 359 of the Code of Criminal Procedure, 1973. In the event of his failure to make the payment of cost convict shall undergo simple imprisonment for ten days.
Announced in the open court
Dt. 31.10.13 (R.L. MEENA)
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
CC No. 4992/07 17