Delhi District Court
K.P. Solanki vs . on 31 May, 2010
1
IN THE COURT OF SH. VIVEK KUMAR GULIA,
METROPOLITAN MAGISTRATE - 1 [East],
KARKARDOOMA COURTS, DELHI.
In the matter of:
K.P. Solanki
Vs.
P.K. Bhandari
C.C. No. 8375/02
Police Station: Krishna Nagar
JUDGMENT
1. The serial number of the case : 855/02
2. The date of institution : 10.12.2002
3. Name of the complainant : Sh. K.P. Solanki S/o. Sh. Ghura Singh, R/o. B33, Jagatpuri, Delhi110 051.
4. The name, parentage and residence of accused : Sh. P.K. Bhandari G128, Jagatpuri, Delhi 110 051.
5. Offence complained of : U/s. 138 N. I. Act
6. Plea of the accused : Pleaded not guilty
7. Final Order : Convicted
8. Final argument heard/ Case reserved for judgment : 14.05.2010
9.Date of such judgment : 31.05.2010 Page no. 1 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 2 REASONS FOR THE DECISION OF THE CASE :
1. In the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (in short ''the Act''), it has been alleged that parties are residing in the same locality and were having friendly terms for several years. On 15.07.2002, a loan of Rs. 3 lacs was paid by complainant to accused and same was to be repaid within three months. In discharge of his liability, accused issued post dated cheque bearing no. 264204 dt.15.10.2002 drawn on Kangra Cooperative Bank Ltd., Jagatpuri, Delhi. On presentation, that cheque was dishonoured because of the reason ''Account Closed''. Thereafter, legal/demand notice dt. 12.11.2002 was sent to accused but notice returned back with the postal remarks "information given on 14.11.2002". In view of above, it is prayed that since accused failed to make payment against dihonoured cheque, he be tried and punished as per law.
2. Substance of accusation in the form of written notice u/s 251 Criminal Procedure Code, 1973 (Cr.P.C.) was read over and explained to accused on 03.05.2007, to which he pleaded not guilty and claimed trial.
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3. In post summoning complainant evidence, complainant himself appeared as CW1 in the witness box and reiterated the facts mentioned in the complaint by way of his affidavit Ex.CW1/1 and proved the documents, i.e., cheque in question Ex.CW1/A, cheque returning memo Ex.CW1/B, legal notice dt. 12.11.2002 Ex. CW1/C, envelop Ex.CW1/D, postal receipt Ex.CW1/E and debit advice Ex.CW1/F.
4. CW2, Dharam Pal, postman from Krishna Nagar, deposed that he is postman in the Jagatpuri area since 1990. It is further mentioned that he went at G128 for service of registered letter and gave his report on back side of cover Ex.CW1/D. Further it is mentioned that he cannot say as to in what manner and to whom the intimation about registered letter was given at the address.
5. The accused was questioned generally about the case put forward by the complainant against him and his statement was recorded U/s. 313 Cr. P. C., whereby he mentioned that the cheque in question was given as security to complainant for his appointment as chairman in Agricultural Committee of Congress. Further mentioned that no transaction had ever taken place between the parties in regard to cheque in question and same Page no. 3 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 4 has been misused by complainant. It is also submitted that complainant told him that the cheque has been misplaced and further he sent the legal notice at a false address.
6. Accused opted to lead evidence in his defence. DW1, i.e., accused deposed by way of his affidavit that no friendly loan was ever received by him from the complainant. It is mentioned that complainant demanded Rs. 3 lacs from him for making him chairman in Agricultural Committee of Congress and cheque in question was given as security for this purpose in the presence of H.Hashmi and Savita Sharma. However complainant could not get him appointed as chairman and thereafter misused the cheque in question. DW2, H. Hashmi, also deposed on the lines of accused (DW1).
7. I have heard the submissions made on behalf of contesting parties and perused the record carefully.
8. The most emphasized plea of accused in his defence is that the cheque in question was given to complainant as security for his appointment in the Agricultural Committee of Congress. Further alleged that cheque is without consideration since no loan Page no. 4 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 5 was ever taken by him from complainant. In order to substantiate his plea, firstly, accused crossexamined complainant CW1. During crossexamination, it came on record that complainant had been the worker of Congress Party and arranged the loan amount from his sons who are working independently. Further he admitted that house no. 128, Jagatpuri, Delhi is not the correct address of accused but the correct address is G128, Jagatpuri. Further he denied the suggestions that he demanded Rs. 3 lacs from accused for making him chairman in Agricultural Committee of Congress and that cheque in question was given as security in 2001.
9. Thereafter, accused (DW1) and H. Hashmi (DW2) submitted that blank but signed cheque in question was given to complainant as security on his demand for appointment of accused as chairman of Agricultural Committee of Congress. During crossexamination, both the witnesses mentioned that this is not in their knowledge that any one has been appointed as chairman after giving the money. DW2 also replied that he is not aware as to who appoints the chairman of Agricultural Committee of Congress.
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10. In view of above mentioned evidence led by both the parties, I come to the conclusion that the defence of accused that blank cheque in question was given as security for his appointment as chairman of Agricultural Committee of Congress is baseless. It cannot be believed that bribe was paid by accused to complainant by way of cheque for his appointment to the post of chairman. Further it has not been the case of accused that complainant had the absolute power to appoint any person as chairman of Agricultural Committee of Congress. Rather, in this regard, DW2 has testified in his crossexamination that he is not aware who is authorized to appoint the chairman.
11. The complainant has been able to disclose the source of loan amount. Further, the accused has not denied the friendly terms with complainant. Though it is alleged that cheque in question was given in blank but no efforts have been made by accused to prove that he has not filled up the columns pertaining to date, payee and amount of cheque in question.
12. Further, the complainant has placed on record the cheque Ex.DW1/DX2 to suggest that the dispute between the parties was settled in 2004 through Sh. M.K. Bhardwaj who handed Page no. 6 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 7 over said cheque of Rs. 80,000/ to complainant in discharge of liability of accused. Accused side has not been able to put forward any explanation or any fact to rebut the above mentioned plea of complainant. Thus, there is no material on record to suggest that cheque in question was not handed over to complainant for discharging the legal liability of the accused.
13. Lastly it is argued by Ld. defence counsel that the demand notice envelop Ex.CW1/D was not served on accused since the address mentioned thereon is admitted as not the correct address. On this point, it can be seen that though CW1 has conceded that the complete address has not been mentioned on the envelop Ex.CW1/D and legal notice Ex.CW1/C, however, he produced the local post man (CW2) to prove that the intimation as to registered letter was given at the address of accused. CW2 has deposed that he is working in the area for last so many years and personally knows the accused. Further he clarified that post man tries to locate the address from local inquiry in case of any doubt. The accused has given no reason to impute any motive on CW2 for giving the false report dt. 14.11.2002 that information has been delivered at the address of accused. The endorsement "intimation given" can be taken as Page no. 7 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 8 refusal. Sending of notice to the correct address of the accused and return of the same with endorsement "intimation given" are sufficient for the purpose of due compliance of sec. 138(b) of the Act. Burden to prove nontender of the article is on the accused. On this issue, reference can be have to the decision given in case titled as Bhaskaran vs. Betan (1999) 3 Ker LT 440 & Joseph Jose Vs. J. Baby 2002 Cr.LJ 4392 (Ker.).
14. Ld. defence counsel relied upon the decision given by High Court of Madras in case titled as S.S. Ummul Habiba vs. B. Rajendran cited as 2005 (1) JCC (NI) 35, wherein it was laid down that the return of postal cover as "intimated; unclaimed" by itself would not amount to constructive notice when it is averred by complainant in the complaint that accused is evading the service. However, Apex Court in the case titled as Srindhar M.A. vs. Metalloy N. Steel Corporation reported as 2000 (1) S.C.C. 397, held that presumption of deemed service is not a matter of course in all the cases and deemed service is to be accepted in the facts of the each case. Now, considering the facts of the present case and evidence led by CW2, it appears to me that complainant is entitled to claim benefit of presumption of deemed service of legal notice on accused.
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15. Now the question arises as to whether material on record is sufficient to disbelieve the version of complainant. The settled position of law is that the rebuttal cannot be by way of mere denial of liability for issuance of cheque and it has to be by way of proof adduced in the form of evidence to the satisfaction of the Court. Therefore, the burden to prove that the negotiable instrument was not issued for consideration lies upon the accused in a prosecution under Section 138 of the Act though it is equally established the burden is not heavy as it's upon complainant to bring home the guilt of accused beyond the reasonable doubt. In the case of Dhanvantrai Balwantrai Desai Vs. State of Maharasthra, AIR 1964, SC 575, the Constitution Bench of Supreme Court, while clarifying the distinction between discretionary and mandatory presumption, held that, " In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence " of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision (Sections 118 and 139 of the Act) make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is Page no. 9 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 10 directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to be rebutted."
16. In view of above, it is held that accused failed to rebut the presumptions existing in favour of complainant. The defence appears to be improbable, insufficient and unconvincing. In the result, accused is convicted of the offence u/s. 138 of the Act.
Announced in the open (Vivek Kumar Gulia) court on 31.05.2010 MM I (East) KKD Courts (total ten pages) Delhi. Page no. 10 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 11 IN THE COURT OF SH. VIVEK KUMAR GULIA, METROPOLITAN MAGISTRATE - 1 [ East], KARKARDOOMA COURTS, DELHI. C.C. No. 8375/02 Police Station: Krishna Nagar ORDER ON SENTENCE 07.06.2010
Present : Complainant in person with counsel.
Convict on bail with counsel.
Arguments heard on the point of sentence. Complainant contended that since convict issued the cheque in discharge of the liability and his guilt has been established beyond any doubt, he be punished with maximum sentence provided.
On the other hand, convict submits that as he is first offender and is dependent on his father. It is also stated that he is having two minor children. Therefore, it is prayed that a lenient view may be taken.
Keeping in view the submissions made on behalf of convict and considering that offence u/s. 138 NI Act has been introduced to encourage greater vigilance to prevent usual callous attitude of drawer of cheque and to lend greater credibility to the greater transactions and lastly that the cases of dishonour of cheques are on the high rise in the society, convict is sentenced to simple imprisonment for three months alongwith fine of Rs. 1,52,000/ as per section 143(1) (proviso) N.I. Act r/w section 357(1)(b) of Cr.P.C. Out of this amount, Rs. 1,50,000/ (cheque amount being Rs.1 Page no. 11 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 12 lac) shall be payable to complainant as compensation and Rs. 2000/ to State within a month from today. In default of payment of fine payable to State, convict shall further undergo simple imprisonment for one month.
Further, it is ordered that compensation amount, if not paid in time, it shall be recovered as fine as per provisions of 421 Cr.P.C. and convict shall further undergo simple imprisonment for three months.
At this stage, an application u/s. 389(3) Cr.P.C. for suspension of sentence and grant of bail is moved by convict. Heard. Since the convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond is furnished and accepted till 18.02.2010.
Announced in the open ( Vivek Kumar Gulia ) court on 07.06.2010 MMI(East)/KKD/Delhi Page no. 12 of 10 K.P.Solanki vs. P.K. Bhandari; CC no. 8375/02 13 C.C. No. 8375/02 Police Station: Krishna Nagar 07.06.2010 Present: Complainant with counsel. Convict on bail with counsel
Separate order on sentenced passed today. Fine of Rs. 2,000/ paid. In case order of the appellate court is not received till 18.02.2010, file be put up before me for further orders.
Copy of judgment and order on sentence supplied to convict free of cost.
(Vivek Kumar Gulia) MM I (East) KKD Courts Delhi.
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