Delhi District Court
In The Case Titled Goa Plast Pvt. Ltd. vs . Chico Ursula D'Souza 2003 on 27 April, 2013
1
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
Madhu Bala @ Madhu Saini
VS
Ramesh Chand
CC NO. 1228/12
PS:Dabri
U/S: 138 N.I. Act
Date of Institution: 27.07.2006
Name of the Complainant Madhu Bala @ Madhu Sainin
w/o Mr. Ramesh Chand
r/o WZ 398, Palam Village,
New Delhi45.
Name and address of accused Ramesh Chand
S/o Late Sh. Karan Singh
R/o 67 A, Hari Nagar, Ashram,
New Delhi.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 27.04.2013
Date of Institution of case: 27.07.2006
Date of hearing final arguments: 22.04.2013
Date of decision of the case: 27.04.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgement, I shall decide the complaint case u/s 138 Negotiable Instruments Act, 1881 (as amended upto date) filed 2 by the complainant.
2. The facts in brief necessary for the disposal of the present case are that the complainant was/is the legal owner of the property no. 67, Hari Nagar Ashram, New Delhi and the original documents of the said property were lying in the matrimonial home when she was kicked out by the accused from the matrimonial home. In the absence of the complainant the accused had misused and fabricated the documents in her name without her consent and the accused sold the said property of the complainant by impersonation, forgery and cheating to another person. When the complainant came to know the said forgery and cheating committed by accused, the complainant asked him about the same and warned him that if accused will not return the said property along with original documents, the complainant will file criminal complaint against him. But after discussion it was settled between the complainant and the accused that the accused will make the total payment of Rs. 10,00,000/ of the said property to the complainant within six months and accordingly the accused issued post dated cheques in favour of the complainant for discharging his liabilities fixed towards the complainant. The accused had issued cheques bearing no. 231816 for a sum of Rs. 5,00,000/ dt. 09.06.2006 drawn on Canara Bank, Maharani Bagh, New Delhi110014 bearing his signatures. However, the aforesaid cheque when presented by the complainant for encashment got dishonoured with the remarks 'FUNDS INSUFFICIENT' vide a cheque returning memo dated 12.06.2006. On 30.06.2006 the complainant has thereafter given a legal notice of demand dated 28.06.2006 to the accused which was sent by registered AD Post thereby calling upon the accused to make the payment of the aforesaid sum. It is alleged that the accused has failed to pay any sum in response to the 3 legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 NI Act.
3. After the complaint was filed the complainant led her pre summoning evidence who tendered his affidavit in evidence and after hearing the Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 27.07.2006 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. Dated 29.07.2008 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove her case the complainant got herself examined as CW1 and reiterated the contents of the complaint on oath before this court. She got exhibited the original cheque bearing no. 231816 for a sum of Rs. 5,00,000/ dt. 09.06.2006 drawn on Canara Bank, Maharani Bagh, New Delhi110014 as Ex. CW1/A and the cheque returning memo dt. 12.06.2006 as Ex. CW1/B ,the legal notice of demand dated 28.06.2006 as Ex. CW1/C and the postal receipt vide which the aforesaid notice was sent as Ex. CW1/D. In her cross examination the complainant has stated that she is 6th standard passed and got married with accused on 31.10.79 and stayed with her husband till 19.10.2000. She has three sons. Her husband told her that he studied up to 5th class. Her husband used to go to work around 9 am but there was no certain time of his return to home, sometime he used to come even after one day or two days. She stated that she was not owner of 67, Hari Nagar Ashram but adjacent to 67, a hut which was built and purchased by her father for her family. She voluntarily stated that as the same was purchased by her father for her, she is having the ownership documents of the same and the same property was also called by 67, Hari Nagar Ashram since both were joint 4 and having the same passage. She stated that she does not remember the exact date when her father gave property no. 66/3. She does not remember the date when the settlement regarding the property had been arrived at between her and her husband. She admitted that except her and her husband, no body was present there at the time of settlement. She stated that she does not remember how many documents were prepared at the time of transfer of the said property. She admitted that the property was purchased from other person by her father in her name. The property was purchased from Sh. Sondha Mal. She does not remember the address of the seller of the property. She further stated that her husband was present while the documents were executed by the seller in her favour. She does not remember whether her husband signed as witness while execution of documents. The other witness was from the seller side but she does not remember his name. She voluntarily stated that there was no other witness from her side. She does not remember the year when she came to know about sale of the property in question by her husband. She does not remember the name of the purchaser of the property but she knows that the purchaser used to live nearby them. She does not know whether the account held by accused was saving account or current account from which the cheque was issued. She denied the suggestion that she used to keep all the documents of her husband with her. She stated that her husband issued the present cheque in question to her. The settlement between her husband was arrived at for Rs. 10 lacs out of which he issued the present cheque of Rs. 5 lac to her and promised to her pay balance of Rs. 5 lac to her after its encasement. She denied the suggestion that having written the same on the cheque herself. She denied the suggestion that the signatures of accused were put by her on the cheque or that she herself 5 written the amount on the cheque. She further denied the suggestion that she stole this cheque from the almirah of the accused when she visited the premises with her brother after her divorce. She denied the suggestion that while she was cheque leaf from the almirah from the accused her youngest son was present there and warned her about the same and further told her about apprised his father about the same. She further denied the suggestion that she took the blank cheque from the almirah of the accused and no settlement was arrived at between her and the accused. She admitted that while handing over the present cheque by the accused no witness was present there. Thereafter, the Complainant's Evidence was closed.
5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to the accused in which he stated that the cheque in question was not issued by him to the complainant in discharge of his liability against the loan. Accused stated that he did not receive the legal notice, however, the address is correct and he has been living at the given address since 50 years.
6. Thereafter the case was fixed for defence evidence. In defence evidence accused has examined his son namely Rahul Saini as DW1 and he stated that in the year 2002 his maternal uncle Anand Saini and his mausi Pusha Saini came to his house and picked some documents of his father which include copy of Voter I Card, copy of the documents of the property, one cheque book, copy of Passport. He informed his father in the evening when her father reached home. On next day his father gave instruction to the bank for stopping payment of the cheque. Copy of the written instruction to bank for stopping payment is Mark A. In his cross examination DW1 stated that he is 10th class passed. In his cross 6 examination he further deposed that his father gave written complaint to the police regarding forcible lifting of documents from his house by his maternal uncle and mausi. From the almirah the documents were lifted by his maternal uncle and mausi kept in a room which was not locked. He accompanied his father while giving written instruction to the bank for stopping the payment but he does not remember the date ,but it was in the year 2002. He admitted that he is staying with his father. He denied the suggestion that he is deposing on instance of his father. He does not know as to who sold the back portion of the house in which he is staying with his father. He admitted that he has no knowledge regarding the property being sold by his parents or either of them. After going through the cheque DW1 states that the signature is not of his father. He volunteered stated that his father does not know English and he used to write application in English for him. He admitted that the application which was given to the bank for stop payment was written by him. He admitted that the application was signed by his father in Hindi. He denied the suggestion that no such application was given by him for stop payment to the bank in year 2002.
7. It is submitted by the counsel for the complainant that complainant and accused were married and thereafter they had taken divorce from the court. It is further submitted by the counsel for the complainant that father in law of the accused had provided them a residential house i.e jhuggi adjacent to their home and the accused sold it to somebody and later on handed over a cheque of Rs. 5 lakh to the complainant as consideration of sale amount. The said cheque was dishonoured with remarks "funds insufficient". It is further submitted by the counsel for the complainant that in his cross examination accused did not deny his liability and his signature on the cheque. It is further submitted by the 7 counsel for the complainant that accused has stated before the court that cheques were stolen from his house, and he has not filed any police complaint qua the same during trial except that accused made a statement during trial that he issued a letter to the bank for stopping the payment of the said cheque. Ld. Counsel for the complainant further submitted that the cheque was returned with remarks "insufficient funds" which shows that no such communication has taken place between him and the bank. Ld. Counsel for the complainant further submitted that the reply of the bank in response to the letter of the accused which was communicated to the bank of accused on 18.07.2007, however, the cheque was of dated 09.06.2006 and which was returned unpaid on 12.06.2006 by the said bank.
8. On the other hand, Ld. Counsel for the accused has further submitted that vide letter dated 20.07.2007 the bank has communicated to the accused that cheque was already dishonoured and remarks given to it "insufficient funds". Ld. Counsel for the accused further submitted that the property no. 67 which has formed the basis of this complaint as averred by the complainant in his complaint is in the name of father of the accused and has wrongly averred the same in his complaint. Ld. Counsel for the accused has further submitted that in his defence son of the complainant has appeared as witness in support of his father who is accused in this case and the present complaint case is false as no son would stand as witness against his mother. Ld. Counsel for the accused further submitted that complainant had stolen this cheque as she used to have custody of the documents while she was married to the accused. Ld. Counsel for the accused further submitted that accused is illeterate and he cannot sign the cheque. Ld. counsel for the accused further submitted that complainant has not mentioned any witness who was 8 present when the sale agreement was made with respect to the property no. 66/3 by the accused with any other persons. Ld. Counsel for the accused submitted that accused is the 6th standard passed and is driver by profession. Ld. Counsel for the accused further submitted that accused could not sell the property no. 66/3 as he was not the owner of the property and at that time the complainant was the owner of the property.
9. In order to bring home the conviction of the accused, the complainant has to show not only an unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
10. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Act are as follows:
(i) The accused issued a cheque on an account maintained by him with a bank.
(ii) The said cheque has been issued in discharge of any legal debt or other liability.
(iii) The 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.
(iv) When the aforesaid cheque was presented for encasement, the same were returned unpaid/dishonoured.
(v) 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.
(vi) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the 9 cheque shall be deemed to committed an offence punishable u/s 138 Negotiable Instruments Act.
Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
11. WHETHER THE ACCUSED HAS ISSUED A CHEQUE ON ACCOUNT MAINTAINED BY HIM WITH THE BANK.
It is not disputed by the accused during the trial that the cheque does not belong to him. Accused only disputed his signature on the cheque. Since no evidence has been brought by accused during trial which could show that cheque was not signed by accused, further neither the banker has stated the reason for dishonourment of cheque as signature differ so as to support the claim of the accused that signature on the cheque is not of accused. Accordingly in the absence of any evidence, it can be safely said that cheque in question is of the accused as cheque in question was from his bank.
12. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
There is a presumption in favour of the complainant u/s 118 Indian Evidence Act 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 negotiation.
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 the discharge in whole or in part or in debt or liability. Further Section 139 NI Act is kind of reverse onus clause which puts 10 burden on the accused to prove its case.
Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated u/s 139 NI Act has to be raised by court in favour of the complainant. This presumption is mandatory presumption and not a general presumption but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by the accused must be probable and capable of being accepted. Merely submitting before the court without putting any evidence that cheques given were lost cheques for which intimation had been given to police would be of no use to the complainant.
In the case titled Goa Plast Pvt. Ltd. Vs. Chico Ursula D'souza 2003 (2).RCR.(CR.)131.SC. Hon'ble Supreme Court held "It is to be presumed that a cheque is issued in discharge of any debt or liability. The presumption can be rebutted by adducing evidence and the burden of proof is on person who wants to rebut the presumption.
In another case titled as Hiten P. Dalal Vs. B. Banerjee.SCC.Criminal.960 Hon'ble Supreme Court has observed "There is a presumption of consideration for issuing the cheque and the burden of proving that the cheque was issued without consideration is upon the accused."
Therefore, with the aforesaid discussion it stands duly proved that the accused has issued cheque bearing no. 231816 for a sum 11 of Rs. 5,00,000/ dt. 09.06.2006 drawn on Canara Bank, Maharani Bagh, New Delhi110014 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
13. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheque in question which are Ex. CW1/A are dated 09.06.2006 which got dishonoured vide cheque returning memo which are CW1/B dated 12.06.2006 which shows that the cheque has been presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
14. DISHONOUR OF CHEQUE IN QUESTION In the instant case, the cheque returning memo which is Ex. CW1/B is lying with the record of the case file. On perusal of the same it is revealed that the cheque returning memo are dated 12.06.2006 and the same were issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'FUNDS INSUFFICIENT'. Accordingly, it stands duly proved that when the cheque in question which is Ex. CW1/A was presented for encashment, the same was dishonoured vide cheque returning memo which is Ex. CW1/B with the remarks 'FUNDS INSUFFICIENT'.
15. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, the complainant has specifically stated in her examination in chief that she got issued the legal notice of demand dated 28.06.2006 through her counsel and the same has duly been served upon the accused. Legal notice bears the same address which was furnished by the complainant on the complaint and on which the summons were duly served to the accused.
Further there is a presumption u/s 27 General Clauses Act in favour 12 of the complainant that a properly address document sent by Registered Post is deemed to have been delivered if not returned back.
In this case, cheque in question dated 09.06.2006 got dishonoured vide cheque returning memo dated CW1/B and the legal notice of demand Ex. CW1/C has been duly served upon the accused vide registered post receipt which is Ex. CW1/D. It shows that the legal notice of demand has been served upon the accused within the statutory period of 30 days from the receipt of information by the complainant regarding the dishonour of the cheque issued by the accused.
So, in view of the presumption raised u/s 27 General Clauses Act the legal notice Ex.CW1/C stands served to the accused in view of the fact that in rebuttal no evidence was led by the accused.
16. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID CHEQUE In the case in hand, the complainant has deposed in evidence that despite receipt of the legal notice of demand, the accused did not make the payment of the cheques amount in question within 15 days of receipt of legal notice of demand. From the facts on record it is evident that accused has failed to make payment within 15 days of receipt of said legal notice. The cause of action has well arisen in favour of the complainant u/s 138 Negotiable Instruments At when the accused has failed to pay the entire cheque amount within 15 days of the receipt of legal notice of demand.
17. I have heard the final arguments addressed by Ld. Counsels for the parties and have also carefully perused the entire record which include judgments filed by Ld. Counsel for the accused.
18. The preliminary arguments raised by Ld. Counsel for the accused that in the present complaint case the complainant has averred that she 13 was the legal owner of the property no. 67, Hari Nagar, Ashram which was sold by the accused and thereafter matter was settled between the complainant and the accused and accused paid Rs. 5 lakh to the complainant by way of cheque bearing no. 231816 dated 09.06.2006 drawn on Canara Bank. The fact that the complaint bear the number of property as 67 which was stated by the complainant as to be owned by her, however, the evidence which has come before the court in the form of deposition of complainant where she has stated that she was not the owner of 67 but adjacent to 67/3 which was built and purchased by her father for her family in her name whose original records were brought by the complainant during her cross examination and the number of property revealed as 67/3 so it appears from the fact that due to a typographical error the complainant has wrongly mentioned the particulars of the property as 67 instead of 67/3 for which she produced the original documents during her deposition to the satisfaction of the court and as such the preliminary arguments raised by Ld. Counsel for the accused that complaint case is false is baseless and devoid of any merit.
19. With respect to another contention of Ld. Counsel for the accused that accused has informed the theft of the cheque in question beforehand to his bank and Ld. Counsel for the accused has also filed a communication made by Canara Bank dated 20.07.2007 wherein bank had certified that the cheque in question has been dishonoured with the reason "insufficient funds", however, the same was requested to be stopped payment by the accused herein, for this it is observed that the cheque in question of dated 09.06.2006 which was returned on 12.06.2006 by Canara Bank and the communication shown by Ld. Counsel for the accused is of 20.07.2007. Ld. Counsel for the accused 14 could not produce or brought before the court in support of their contention that cheque was stolen by the complainant and her brother in the year 2002 either in the form of police compliant or communication to the bank regarding the same and accordingly the contention of Ld. Counsel for the accused remains unsubstantiated and unproved and accordingly dismissed.
20. With respect to another contention of Ld. Counsel for the accused that accused is a illiterate person. The same contention of Ld. Counsel for the accused is also merit less and far from truth as during the course of arguments Ld. Counsel for the accused had at the first instance stated that accused is a illiterate person and he cannot sign the cheque and later he submitted that accused is 6th standard passed and driver by profession. The fact that accused is not illiterate person can be proved from the testimony of DW1 who was a defence witness and also the son of the accused stated that the application was signed by his father which was given to the bank for stopping of payment to the cheque. Further the accused did not make any statement while he was examined u/s 313 Cr.P.C by the court and afforded him an opportunity to make any statement in his defence and accordingly the contention of Ld. Counsel for the accused is dismissed being far from truth and vague.
21. With respect to another contention of Ld. Counsel for the accused that complainant has not made any witness who was present when the sale agreement was made with respect to property no. 67/3 by the accused with any person, it is observed that the present complaint u/s 138 NI Act qua dishonournment of cheque and as such there is need on the part of the complainant to prove the said agreement and same argument is also dismissed as merit less.
22. With respect to contention of Ld. Counsel for the accused that 15 accused could not sell the property no. 67/3 as same was in the name of the complainant, it is observed that since at that time both the complainant and the accused was married and from the fact on record it is evident that accused sold the property taking complainant into confidence and out of sale proceeds handed over a cheque of Rs. 5 lakh to the complainant as agreed amongst them which later got dishonoured on presentation. To sum up with in the present complaint, complainant has been successful in proving her case against the accused beyond reasonable doubt.
Conclusion
23. In view of the aforesaid discussion, this court is of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubt. All the ingredients of Section 138 of Negotiable Instruments Act stands satisfied. Accordingly, accused stands convicted of the offence u/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the Open Court (PANKAJ SHARMA) today on 27rd day of April, 2013 MM : Dwarka : Delhi