Delhi District Court
Complainant vs Chetan Saini on 19 July, 2012
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IN THE COURT OF SH. PAWAN KUMAR ,
METROPOLITAN MAGISTRATE, SPECIAL COURT10,
DWARKA COURTS, NEW DELHI.
CC NO 14801/1
Indiabulls Financial Services Ltd.
Having Its Registered Office At :
F60, 2nd Floor, Malhotra Building
Connaught Place, New Delhi
Through its Attorney/ Authorized Representative
...... COMPLAINANT
VERSUS
Chetan Saini
H. NO. 790; Village Shabad Mohammad Pur;
Near Saini Shiv Mandir & IGI Airport;
Delhi - 110061
Also at :
310A/3 Prem Nagar OPP Rai Cinema Old
Delhi Road ; Behind Double Service
Old Gurudwara Road ; Gurgaon 122001
..... ACCUSED
P.S.: Connaught Place
U/S:138 N.I.Act
a) Sl.No. of the case : 14801/09
b) Date of commission of offence : 09.07.2009
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c) Name of the complainant : Indiabulls Financial
Services Ltd.
d) Name of the accused ,and
his parentage and residence :Chetan Saini
H. No. 790; Village
Shahbad Mohammedpur,
Near Saini Shiv Mandir
& IGI Airpot ; Delhi 61
Also at: 310A/3, Prem
Nagar, Opp. Rai Cinema
Old Delhi Road, Behind
Double Service, Old
Gurudwara Road,
Gurgaon - 122001.
e) offence complained of : Section 138 N.IAct.
f) Plea of accused : Pleaded not guilty
and claimed trial.
g)final order : The accused found
not guilty and
acquitted for offence.
h)date of such order : 19.07.2012
Date of institution of the complaint : 10.08.2009
Date of Reserving the judgment : 11.07.2012
Date of pronouncing the judgment : 19.07.2012
JUDGMENT
1. The present complaint is filed u/s 138 Negotiable CC NO 14801/09 2 of 13 3 Instrument Act (in short "N.I Act") filed by The Indiabulls Financial Services Ltd. "Financial Institution" before this court which is a special court constituted for dealing exclusively with criminal complaints relating to dishonour of the cheque instituted by "Financial Institution" only.
2. The complainant version in brief is that the complainant availed the personal loan from the complainant vide loan account no. S000232685. The accused made default in repayment of the loan and in partial discharge of liability the accused issued a cheque bearing no. 208755 dated 26.05.2009 for an amount of Rs. 33,980/ drawn on The Delhi State Co operative Bank Ltd., Hauz Khas, New Delhi. The said cheque when presented for encashment returned by bank with the remarks "Insufficient funds" vide bank returning memo dated 30.05.2009. Thereafter the complainant issued a legal notice dated 23.06.2009 to the accused demanding the cheque amount in question, and the same was posted on 24.06.2009 through registered A.D and UPC post. As per the complainant, despite the expiry of statutory 15 days period from the date of receipt of the notice, the accused failed to make the payment of the cheque in question. Thus, present complaint was filed on 10.08.2009.
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3. The complainant tendered his presummoning evidence by way of affidavit. Along with the affidavit complainant also relied upon documents which are EX CW 1/A to EX CW 1/F4. After considering the material on record the accused was summoned on 24.05.2011. The accused appeared in the court on 19.11.2011 and was admitted to bail.
4. Notice u/s 251 Cr.P.C. was framed against the accused on 17.01.2012. At the time of framing of notice the accused denied the receipt of legal notice in question. Further the accused pleaded not guilty and claimed trial and thereafter the matter was posted for complainant evidence.
5. During the trial the complainant examined two witnesses CW1, Sh Sandeep Kumar the Authorized Representative of the complainant Bank and CW 2 Sh. Bhuwan Chandra, Public Relation Inspector from Postal Department. Further it is provided U/S 145 N.I. Act that the complainant can give his evidence by way of affidavit. The complainant in his post summoning evidence tendered his evidence by way of affidavit Ex. CW1/1 and relied upon the documents already exhibited as Ex. CW1/A to Ex. CW1/H. The affidavit of CW1 is exhibited as Ex. CW1/1. Further Power of Attorney of the AR is CC NO 14801/09 4 of 13 5 Ex. CW1/B. Original cheque in question is exhibited as CW1/C. The cheque returning memo is exhibited as CW1/D. Office copy of the legal notice is exhibited as CW1/E . The postal receipt of registered AD/UPC is exhibited as CW1/F1 to F4.
6. The crossexamination of the A.R / CW 1 Shri Sandeep Kumar, mainly pertains to the issues whether the liability of the accused on the date of issuance of the cheque was in tune with the amount mentioned in the cheque in question, and whether the cheque in question was a security cheque and issued at the time of disbursement of loan.
7. No other witness was examined by the complainant and the complainant's evidence was closed on 31.05.2012 after recording the statement of the AR for the complainant.
8. The accused was examined u/s 313 Cr.P.C. and all the incriminating evidence were put to the accused. In his statement the accused admitted the loan. He also stated that the cheque in question was blank signed cheques issued by him as a security at the time of disbursement of loan. He stated that no cheque was given in order to settle the loan account as no settlement was taken place. He further stated that the liability was not to the extent of the cheque amount in question as on the CC NO 14801/09 5 of 13 6 date of issuance of the cheque. It is further stated that he did not receive any legal demand notice about the dishonoring of the cheque in question.
9. The accused did not lead any defence evidence and his defence evidence was closed.
10. Both the parties argued at length. Ld. Counsel for the Complainant argued that they have satisfied every ingredients of offence U/S 138 N.I. Act. It is further argued that in his statement recorded U/S 313 Cr.P.C, the accused has admitted the factum of taking loan from the complainant. It is further argued that accused has failed to rebut the presumption as contemplated by Section 118 (b) and 139 N.I Act. It is further argued by Ld. Counsel for the complainant that in any case the accused was supposed to maintain sufficient balance for the installments which he was admittedly supposed to pay.
11. The counsel for the accused has argued that the cheque in question was issued as the security blank signed cheque at the time of disbursement of loan. The cheque in question was not issued in discharge of any debt or liability. It is further argued that on the date of issuance of cheque only Eight installments were due and the liability of the accused was not in CC NO 14801/09 6 of 13 7 tune with the amount of the cheque in question.
12. At this stage it would be necessary to see the effect of statutory presumption under section 118 and section 139 N.I.Act in order to judge the legal and factual merit of the defence's contention.
Section 118 and 139 of N.I.Act, have been dealt with in cantena of judicial pronouncements by the Hon'ble Supreme Court. And it would be sufficient to refer to the following judgments in this regard.
In " K. Bhaskaran Vs. Sankaran Vaidhyan Balan"(AIR 1999 SC 3762), it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Sec.118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharges of any debt or liability. The burden was on the accused to rebut the aforesaid presumption.
Thus, the effect of these presumptions is to place the evidential burden on the Accused of proving that the cheque was not received by the bank towards the discharge of any liability.
In this regard it is fruitful to refer to the ratio of the judgment in "M. S. Narayana Menon v. State of Kerala" (AIR CC NO 14801/09 7 of 13 8 2006 S C 3366) and "Krishna Janardhan Bhat Vs. Dattatraya G.Hegde (2008 A.I.R. (SC) 1325 ), on the point that it is not necessary that the rebuttal is always essentially by leading separate contrary evidence and it would suffice if the accused can demonstrate from the crossexamination of the complainant that the burden to prove contrary is discharged. So far as presumption as to issuance of cheque for consideration and in discharge of debt, the accused need not disprove the complainant case in its entirety. He can discharge his burden on the preponderance of probabilities through direct or circumstantial evidence for which he can rely on evidence adduced by the complainant.
But again each case depends on its own facts and circumstances. And now I would examine whether in present case the accused is able to prove successfully to the contrary.
13. It is admitted as well as proved that loan of Rs. 29,288/ was sanctioned in favour of the accused, however a sum of Rs.23,812/ was disbursed in his account. It is also admitted by the accused that the cheque in question was issued by him after signing it, however the same was blank in all other respect. It is also proved that the cheque in question is presented within six months of date of issuance. It is further proved that on presentation the cheque in question, it returned dishonored vide CC NO 14801/09 8 of 13 9 return memo for the reasons "Insufficient Funds".
However, receipt of legal demand notice was denied by the accused but it is established by the complainant that the legal demand notice was sent through registered AD/UPC service at the correct address of the accused.
The receipt of the registered post / UPC is placed on record as Ex. CW/E. The address mentioned on the Legal Demand Notice and UPC is not disputed by the accused. On this issue it is very well settled by the Hon'ble Supreme Court in the matter of C.C. Alavi Haji Vs. Palapetty Mohammed & Anr. that if any borrower who claims that he did not receive the notice sent by the complainant can within 15 days of receipt of summons from the court in respect of complaint U/S 138 N.I. Act make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the notice of summons and therefore the complaint is liable to be rejected. A person who does not pay within 15 days of the receipt of the summons from the court along with the copy of the complaint U/S 138 of the Act cannot take the defence that there was no proper service of notice as required U/S 138 of the Act. It was further held that in such cases the court shall take the presumption of section 27 of General Clauses Act and Section 114 of Indian Evidence Act. Hence, it can be presumed u/s 27 CC NO 14801/09 9 of 13 10 General Clause Act r/w section 114 in Indian Evidence Act that in due course regarding legal demand notice was served upon the accused. So, this submission of the accused is not sustained.
14. The only contentious issue to be decided between the parties is that whether the cheque EX CW 1/B was issued by the accused for discharge in whole or in part of legally recoverable debt or other liability. In brief the defence of the accused is that he availed personal loan of Rs. 29,228/ to be repaid in 36 EMIs of Rs. 1546/ each. EMIs were to be paid from October, 2007 to October, 2010. Further on the date of issuance of cheque only eight installments were due and his liability is not to the extent of the cheque amount i.e,. Rs.33,980/ and the cheque in question was given as a security cheque at the time of disbursement of the loan. It is also argued that the accused neither received any loan recall notice nor entered into full and final settlement with the complainant.
15. It is established on record that the accused had availed loan of Rs.29,288/ from the complainant company to be repaid in 36 EMIs of Rs.1546/. It is also admitted that he issued the cheque in question, however, the same was alleged to be given in blank and issued as a security cheque at the time of disbursement of loan and was not issued in discharge of any CC NO 14801/09 10 of 13 11 legally recoverable debt or liability. As per the account statement of the accused, the accused has paid total 11 EMIs and on the date of issuance of cheque only 8 installments were due. On this aspect it is deposed by CW1/AR that the cheque in question was a full and final settlement cheque and given by the accused as he approached the complainant for settlement. It is further stated by CW1/AR that no settlement letter is placed on record as in case of settlement by cheque no letter is issued. In this regard it is pertinent to mention that as per averment made in para no. 4 of the complaint the cheque in question was issued in discharge of parts of debts accrued on account of dues of the complainant. However, in the complainant's evidence CW 1/AR stated that the cheque in question was issued in lieu of the full and final settlement. This stand of the accused is contradictory and clear improvement to the stand taken in the complaint. Further no settlement letter is placed on record. In view of the contradictory stand taken by the complainant, in the complaint and in the affidavit, accused successfully raised the reasonable doubts as to the full and final settlement and further the issuance of cheque in question in lieu of that settlement. The complainant failed to rebut the burden that the cheque in question was issued in lieu of full and final settlement. In order to establish the liability, the complainant relied on the statement of account EX CW 1/H. As CC NO 14801/09 11 of 13 12 per the statement of account the accused had paid total 11 installments till 21.10.2008. On the date of issuance of cheque i.e.26.05.2009 only 8 installments were due and the liability of the accused was only to pay those outstanding 8 installments. The EMI amount of Rs.1546/ and hence by no stretch of calculation the liability of accused can be extent to the cheque amount in question i.e. RS.33,980/
16. One of the most essential condition for the offence u/s138 NI Act is that the cheque is issued to discharge of any legally recoverable debt or liability. In view of the above submissions and findings, it is proved that the loan agreement took place between the parties. As per the admitted statement of the account of the accused the liability of the accused as on the date of issuance of cheque was of only 8 defaulted EMIs. The loan was to be repaid in 36 installments of Rs. 1546/ each. So the liability of the accused was not to the extent of the amount of the cheque in question i.e. 33,980/. In this way it is proved that the cheque was not issued in discharge of any legally recoverable debt or liability. Hence, one of the most essential condition to attract section U/S 138 N.I. Act is not fulfilled. In this way, accused successfully rebut the presumption U/S 118 and 139 of N.I Act.
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Accordingly, the accused is acquitted for the offence
under Sec. 138 NI Act for the cheque in question. ANNOUNCED IN THE OPEN COURT ON 19.07.2012 All the pages from 1 to 13 are signed by me.
(PAWAN KUMAR ) METROPOLITAN MAGISTRATE, SPECIAL COURT 10, COURT NO312, DWARKA COURTS,DELHI.
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