Delhi District Court
Kapoor Singh Rathee vs Ishwar Soni on 20 February, 2023
IN THE COURT OF SH. SAURABH GOYAL, METROPOLITAN
MAGISTRATE (SOUTH) NI ACT (DIGITAL-01), SAKET COURTS:
NEW DELHI
CT No. 4113/2021
KAPOOR SINGH RATHEE Vs ISHWAR SONI
1. Complaint Case No. : 4113/2021
2. Name and address of the
complainant : Kapoor Singh Rathee
S/o Late Sh. Chaudhary Beghraj
R/o H No. 97, Ground Floor, Village-
Khurd, Near Chattarpur Mandir,
New Delhi-110068.
3. Name and address of the
accused : Ishwar Soni
R/o H No. 176, In front of Purshotam
Chakki, Rajpur Khurd, Delhi-
110068
4. Offence complained of : Under section 138 of the Negotiable
Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty.
6. Final order : Acquittal
7. Date of institution : 14.09.2021
8. Date on which reserved
for judgment : 13.02.2023
9. Date of judgment : 20.02.2023
Digitally
signed by
SAURABH
SAURABH GOYAL
GOYAL Date:
2023.02.20
15:42:02
+0530
CT No. 4113/2021 Page No. 1 of 7
BRIEF STATEMENT OF FACTS
1. Briefly, the case of the complainant is that accused used to reside nearby to the house of the complainant in village Rajpur Khurd from the last many years and the complainant was well known to the accused and also having good faith upon accused. Accused requested to the complainant to pay a total sum of Rs. 1,04,000/- which was taken by the accused on different dates and every time the accused promised the complainant to return the entire amount as soon as possible.
2. However, on number of occasions the complainant had approached the accused and had also made several phone calls and requested the accused to return his aforesaid amount but accused always gave false assurance to the complainant to return his money and after great persuasions at last the accused promised the complainant to return his money till end of May 2021 but even thereafter the accused has not returned a single penny to the complainant.
3. Due to the aforesaid conduct of the accused, complainant sent a legal notice dated 24.06.2021 which was sent to the accused on 05.07.2021. After receiving the legal notice accused met the complainant and agreed to return the aforesaid money and thereafter in discharge of his liability the accused issued a cheque in favour of complainant bearing number 642893 dated 20.07.2021 for an amount of Rs.1,04,000/- drawn on Syndicate Bank, Rajpur Khurd Branch. The complainant presented the aforesaid cheque for encashment with his banker i.e. Canara Bank, Rajpur Khurd, Digitally signed by SAURABH SAURABH GOYAL GOYAL Date:
2023.02.20 15:42:07 +0530 CT No. 4113/2021 Page No. 2 of 7 however, the said cheque was returned dishonored as "EXCEED ARRANGEMENT" vide return memo dated 20.07.2021.
4. In the pre-summoning evidence, the complainant produced affidavit Ex.CW 1/A and has relied on Ex CW 1/1 to Ex CW 1/6. On finding a prima facie case against the accused, the accused was ordered to be summoned to face the trial u/s 138 NI Act.
5. After hearing the arguments, at the time of framing of notice of accusation, the notice of accusation u/s 251 Cr.P.C. was framed against the accused to which the accused pleaded NOT GUILTY and claimed trial. The accused has taken the defence that in August 2018, accused took a loan of Rs. 80,000/- from the complainant against which he gave a security cheque to the complainant in the blank signed condition. The aforesaid amount was taken on interest and accused regularly paid the interest amount of Rs. 4,000/- every month till March, 2021. On 23.03.2021 accused paid amount of Rs. 84,000/-
(principal amount + interest) by way of cash to the complainant. This amount was given in the presence of one of his customer namely Rihana @ Shabnam.
6. In order to prove his case, complainant got himself examined as CW-1. The complainant adopted his pre-summoning evidence as post-summoning evidence and the accused cross-examined the complainant.
7. Thereafter, statement of accused u/s 313 Cr.P.C. was recorded wherein the accused denied all the incriminating circumstances put to him pursuant to which accused wished to lead DE. Hence, the matter proceeded for defence evidence.
8. In order to rebutt the allegations of the complainant, accused examined himself as DW-1, and produced his customer namely Rihana @ Shabnam as DW-2 and Assistant Manager of Canara SAURABH GOYAL CT No. 4113/2021 Page No. 3 of 7 Digitally signed by SAURABH GOYAL Date: 2023.02.20 15:42:15 +0530 Bank namely Ms. Hema as DW-3. Thereafter, DE was closed by the accused and the matter proceeded for final arguments.
9. Arguments were heard for both the parties and the record of the case has been perused.
10. Therefore, after going through the evidence and arguments ad-
vanced on behalf of both the parties, it emerges that the accused took a friendly loan of Rs.1,04,000/- from the complainant on vari- ous occasions. When the accused failed to return the amount as promised, the complainant requested him several times but in vain. Thereafter, a legal notice dated 24.06.2021 was served upon the ac- cused to discharge his legal liability after which,the accused issued the cheque in question dated 20.07.2021 in the sum of Rs.1,04,000/- drawn on Syndicate Bank, Rajpur Khurd Branch, New Delhi (Ex.CW1/1) and assured that the same will be honoured on presen- tation.
11. However, when the said cheque was presented for encashment by the complainant in his bank i.e. Canara Bank, Rajpur Khurd Branch, New Delhi, which is the same branch as that of the accused of which the cheque in question was issued, the same was returned with remark "EXCEEDS ARRANGEMENT" vide returned memo Ex.CW1/2 dated 20.07.2021 and thereafter legal notice dated 24.07.2021 Ex.CW1/3 was served which was delivered upon the ac- cused as is evident from postal receipt Ex.CW1/4, Ex.CW1/5 and Ex.CW1/6. Moreover, the accused has admitted the receipt of the le- gal notice in his statement under Section 313 Cr.P.C.
Digitally
signed by
SAURABH
SAURABH GOYAL
GOYAL Date:
2023.02.20
15:42:20
+0530
CT No. 4113/2021 Page No. 4 of 7
12. It is pertinent to mention that neither the signature nor the issuance of the cheque Ex.CW1/1 to the complainant is disputed by the ac- cused but the accused has taken the defence that the said cheque was issued as undated security cheque and has repaid the entire amount along with interest and the cheque in question has been misused. But there is no evidence of repayment of the loan amount and as such the legal liability cannot be said to have been discharged by the accused.
13. But it has come in evidence on behalf of the accused from the testi-
mony of DW3, Ms. Hema, Assistant Manager Canera Bank, Rajpur Khurd Branch, New Delhi that erstwhile Syndicate Bank from which the cheque in question has been drawn has been merged with Canara Bank as on 31.03.2019 and the cheque book was issued in favour of the accused on 10.08.2018. DW3 has further stated that the cheque in question was presented after 30.06.2021 in the Canara Bank Branch. Further, counsel for the accused has placed on record the website publication (https://www.livemint.com/money/per- sonal-finance/all-ifsc-codes-cheques-of-this-bank-will-become- invalid-from-next-month-11624855040307.html)dated 29.06.2021 containing the news that the merger of Canara Bank and Syndicate Bank came into effect in April, 2020 and the present cheque books with old MICR and IFSC shall be valid upto 30.06.2021 only, after which the said cheque books shall become invalid. The said news article has been substantiated from the testimony of DW3 as well. It has been further argued by counsel for the accused that the Canara Bank had informed its customers which included both the com- plainant as well as the accused that the old cheque books will be-
Digitally
signed by
SAURABH
SAURABH GOYAL
GOYAL Date:
2023.02.20
15:42:26
+0530
CT No. 4113/2021 Page No. 5 of 7
come invalid from July, 2021. The customers of Syndicate Bank have been told to update their bank's branch and IFSC Code by 30.06.2021 and that the cheque books of Syndicate Bank shall be- come invalid after that.
14. Therefore, on account of merger of Syndicate Bank with Canara Bank, the cheque issued by Syndicate Bank having old IFSC Code of Syndicate Bank were valid for presentation upto 30.06.2021 and thereafter the same became an invalid instrument for presentation. The Canara Bank ought to have returned the said cheque Ex.CW1/1 as an invalid instrument and was not required to be processed by the bank officials.
15. Therefore it is evident that when the said cheque Ex.CW1/1 was presented by the complainant for encashment with Canara Bank on 20.07.2021 the cheque in question had become invalid after 30.06.2021 on account of merger of Syndicate Bank with Canara Bank and the cheque was not presented within the validity period i.e. prior to 30.06.2021 and thus on account of bank notification, the said cheque had become invalid for the purpose of presentation to the Canara Bank. Further, there was no requirement of mentioning of the fact of dishonour of the cheque as "Exceeds Arrangement" in the return memo Ex.CW1/2. It is evident that the cheque in question dated 20.07.2021 had expired and was not presented within its va- lidity period upto 30.06.2021.
16. Therefore, no doubt the accused had issued the said cheque but the same had become invalid due to the operation of the notification Digitally signed by SAURABH SAURABH GOYAL GOYAL Date:
2023.02.20 15:42:32 +0530 CT No. 4113/2021 Page No. 6 of 7 by the bank of the accused and the same was duly notified by the bank to all its customers.
17. Therefore, when the cheque had become invalid then no prosecu-
tion can be based upon said invalid cheque as held by Hon'ble High Court of Jharkhand in C.R.M.P. No. 2393 of 2017 Santosh Biswas Vs. State of Jharkhand decided on 07.02.2018. Therefore, in the in- stant case when the cheque has become invalid for presentation then no prosecution under Section 138 NI Act is maintainable as the ba- sic requirement of Section 138 NI Act i.e. issuance of valid cheque is not complied with. When the cheque itself is invalid then the question whether there was sufficiency of funds or not is not re- quired to be examined for purpose of prosecution under Section 138 NI Act.
18. Therefore, the case of the complainant is hereby not made out and the complaint is hereby dismissed and accused stands acquitted of the acquisition. Bail Bond and Surety Bond stands discharged. However, the complainant is at liberty to pursue his other civil rem- edy as per law. The complaint is disposed of accordingly.
Pronounced in the open court on 20.02.2023 Digitally signed by SAURABH SAURABH GOYAL GOYAL Date:
2023.02.20 15:42:38 +0530 (SAURABH GOYAL) MM (NI Act) Digital Court-01 South, Saket Courts, New Delhi 20.02.2023.CT No. 4113/2021 Page No. 7 of 7