Delhi District Court
H. L. Soni vs . on 31 July, 2014
IN THE COURT OF SH. RAVINDER SINGHII, METROPOLITAN
MAGISTRATE (NI) ACT - 07
DWARKA COURTS, NEW DELHI.
Case No. : 4850/14
Unique Case ID No: 02405R0189592011
H. L. Soni
R/o B882, Panchwati Apartments
Vikas Puri, New Delhi110046 ........................... COMPLAINANT
Vs.
1 Rajeev Kapoor
R/o D130, 6th Floor, Rohit Apartment
Sector10, Dwarka, New Delhi 110075
Also At: C/o Avdesh Kapoor/Sanjeev Kapoor
C4E, Janakpuri, New Delhi 110058
2 Priya Kapoor
R/o D130, 6th Floor, Rohit Apartment
Sector10, Dwarka, New Delhi 110075.......................... ACCUSED
Date of Institution: 03.06.2011
Plea of the accused persons: Pleaded Not Guilty
Date of Reserving Judgment: 03/06/2014
Date of Judgment: 31/07/2014
Sentence/final Order: Accused No. 1 Convicted
Accused No. 2 Acquitted
JUDGMENT
1. By way of present judgment I shall decide the present complaint case under Section 138 of Negotiable Instrument Act 1881 (as amended up to date, herein after said as NI Act) filed by the complainant H. L. Soni against the accused No. 1 Rajeev Kapoor & accused No. 2 Priya Kapoor.
CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 1/11FACTS OF THE PRESENT COMPLAINT CASE
2. The factual matrix as per the allegations in the complaint which are necessary for disposal of the present case are that the accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor) approached the complainant for friendly loan. It is further alleged that on the request and assurance of both the accused No. 1 and 2 that they will return the loan amount along with interest within a reasonable time, the complainant had granted a loan of Rs. 2,00,000/ to the accused persons. It is further alleged that in order to liquidate the liability of Rs. 2,00,000/ along with interest of Rs. 70,000/ aggregating to Rs. 2,70,000/, the accused No. 1 (Rajeev Kapoor) initially issued three cheques bearing No. 000032, 000033 & 466478 dated 31.10.2010, 21.11.2010 and 27.11.2010 respectively amounting to Rs. 30,000/, Rs. 40,000/ and Rs. 2,00,000/ respectively. It is further alleged by the complainant that the afore mentioned cheques were dishonored and the accused No. 1 and 2 in order to cheat the complainant and to further buy more time for payment has issued another cheque bearing No. 708655 dated 07.01.2011 i.e. cheque in question, amounting to Rs. 2,70,000/ drawn on State Bank of India, Sagar Tower, Janakpuri, District Center branch, New Delhi. It is further alleged that both the accused signed the aforesaid cheque and assured the complainant that the cheque would be encashed on presentation. It is further alleged that on presentation of the same the cheque was dishonored vide cheque returning memo dated 21.04.2011 with the remarks "Funds Insufficient". It is further alleged that the complainant thereafter has given a legal notice of demand dated 28.04.2011 to both the accused No. 1 and 2 by registered post on 29.04.2011 thereby calling upon the accused persons to make the payment of the cheque amount. It is alleged that the accused persons No. 1 and 2 have failed to pay any sum in response to the legal demand notice as a result of which the complainant has filed the present complaint for prosecution of the accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor) U/s 138 of the NI Act.
3. After complaint was filed, the complainant H. L. Soni has lead his pre summoning evidence by way of an affidavit and after hearing the Ld. CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 2/11 Counsel for the complainant and considering the entire material and documents on record summons were issued against both the accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor) by the Court for the offence U/s 138 of NI Act vide order dated 04.06.2011. On appearance of both the accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor) separate notices U/s 251 Criminal Procedure Code (herein after said the Code) dated 06.02.2013 were given to both the accused No. 1 and 2 to which they pleaded not guilty and claimed trial. Thereafter, an opportunity to file an application U/s 145 (2) of the NI Act was given to the accused persons. Thereafter the accused persons moved an application U/s 145 (2) of NI Act and the same was allowed and the case was listed for cross examination of the complainant witnesses.
COMPLAINANT'S EVIDENCE
4. The complainant Sh. H. L. Soni got himself examined as CW1 and adopted his evidence affidavit Ex. CW1/Y. CW1 also relied upon documents Ex. CW1/1 to Ex. CW1/9.
5. Ex. CW1/1 is the original cheque in question. Ex. CW1/2 is the Cheque returning memo. Ex. CW1/3 is the legal notice of demand dated 28.04.2011. Ex. CW1/4 to Ex. CW1/6 are the registered post receipt, Ex. CW1/7 to Ex. CW1/9 are the returned envelope. CW1 (Complainant) was cross examined by the Ld. Counsel for the accused persons. Thereafter, the complainant's evidence was closed at request.
6. After Complainant's evidence the statements of both the accused No. 1 and 2 were recorded U/s 313 of the Code in which all the incriminating evidence were put to both the accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor).
STATEMENT OF THE ACCUSED NO. 1 (RAJEEV KAPOOR UNDER SECTION 313 OF THE CODE
7. The accused No. 1 (Rajiv Kapoor) stated that he was having money CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 3/11 transaction with the complainant and he has not taken any loan from the complainant. The accused further admitted that he has issued the cheque in question bearing his signatures towards discharge of his liability. Further the accused also stated that he also got intimation about the dishonor of the cheque in question. The accused further denied the receipt of the legal demand notice and also stated that the complainant has filed a false case against him. It is further submitted by the accused that the complainant has deposed against him falsely. The accused further stated that the cheque in question was given by him as a security in the money transaction which he was having with the complainant. The accused further stated that he has repaid a total of 45 lacs to the complainant. The accused further stated that the complainant has been receiving amounts from him and only small amount remains to be paid by him. The accused further stated that he owes a total liability of Rs. 3,00.000/ and he is paying the same due to the reason that he was involved in money transaction and also on humanitarian grounds. The accused further stated that he wants to pay the amount and again stated that he is not supposed to pay a single penny to the complainant.
STATEMENT OF THE ACCUSED NO. 2 (PRIYA KAPOOR UNDER SECTION 313 OF THE CODE
8. The accused No. 2 (Priya Kapoor) denied that she has availed a friendly loan of Rs. 2,00,000/ from the complainant. The accused further stated that she do not know the complainant. The accused further submitted that the account on which the cheque in question is drawn was opened only for the purposes of Visa and she has no information about the account. The accused further stated that the cheque in question does not bear her signature. The accused further stated that she is not aware about the dishonor of the cheque in question. The accused further denied the receipt of legal demand notice. The accused also stated that the complainant has filed a false case against her and the complainant has also deposed against her falsely. Further the accused also stated that she has no knowledge about the present complaint case and she do not owe any liability towards the CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 4/11 complainant.
DEFENCE EVIDENCE
9. Thereafter, the case was fixed for defence evidence. Both accused No. 1 (Rajeev Kapoor) and accused No. 2 (Priya Kapoor) has lead common evidence in their defence. Accused No. 2 Priya Kapoor examined herself as DW1 and further one Vikas Sharma was also examined by the accused persons as DW2. Both the defence witnesses were duly cross examined by the Ld. Counsel for the complainant. And thereafter defence evidence was closed at the request of the Ld. Counsel for both the accused persons and the matter was listed for final arguments.
FINAL ARGUMENTS
10. Final arguments were addressed on behalf of both the parties. I have heard the Ld. Counsels for both the parties and have given my anxious and thoughtful consideration to submissions made, further I have also perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provision of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 5/11 due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF DEFENCE RAISED BY BOTH THE ACCUSED NO 1 AND 2 AND THE INGREDIENTS OF SECTION 138 OF THE NI ACT
11. Initially I am dealing with the liability of accused No. 2 Priya Kapoor. It is an admitted fact that the cheque in question Ex. CW1/1 is issued on the joint account in the name of accused no. 1 Rajeev Kapoor and accused No 2 Priya Kapoor. However accused No. 2 Priya Kapoor has denied her liability towards the complainant both at the time of framing of notice and also in her statement U/s 313 of the Code and has stated that she has nothing to do with the transaction and the cheque in question Ex. CW1/1 does not bears her signature. In support of her defence the accused No. 2 Priya Kapoor has also examined herself as DW1 and reiterated the same contentions. DW1 further has stated that the cheque in question Ex. CW1/1 was not issued in her presence. Interestingly complainant as CW1 in his cross examination has only pointed out about his transaction with accused No. 1 Rajeev Kapoor and issuance of Cheque in question by him, no where throughout the cross examination the complainant has revealed about any transaction with accused No. 2 Priya Kapoor. Further it is also surprising to see that the Cheque in question Ex. CW1/1 only bears the signature of accused No. 1 Rajeev Kapoor and not that of accused No 2 Priya Kapoor. It is trite to say that under Section 138 of the NI Act, it is only the drawer of the cheque who can be prosecuted. In the case in hand, the accused No 2 Priya Kapoor is not the drawer of the cheque in question as she has not signed the same. Though it contains name of both the accused No. 2 Priya Kapoor and her husband accused No.1 Rajeev Kapoor, the fact remains that her husband (accused No. 1 Rajeev Kapoor) alone has put his signature on the same. Therefore, there remains no doubt that the cheque in question Ex. CW1/1 has not been issued by the accused No. 2 Priya Kapoor. It is also trite to say that a joint account holder does not itself become liable for prosecution U/s 138 of the NI Act. In case of issuance of cheque from joint accounts, a joint account CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 6/11 holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from other joint account holder i.e Accused No.1 Rajeev Kapoor in the instant case. The culpability attached to dishonour of a cheque can, in no case "except in case of Section 141 of the N.I. Act" be extended to those on whose behalf the cheque is issued. It is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Accordingly, in view of my discussion above accused No. 2 Priya Kapoor who is not the signatory of the cheque in question Ex. CW1/1 is hereby acquitted for the offence U/s 138 of the NI Act.
12. Coming to the liability of the accused No. 1 Rajeev Kapoor. It is not disputed by the accused No. 1 Rajeev Kapoor that the Cheque in Question Ex. CW1/1 is drawn on the account maintained by him. Further signature on the cheque in question Ex. CW1/1 has also not been disputed by the accused. Infact the accused No. 1 Rajeev Kapoor at the time of framing of notice and also in his statement U/s 313 of the Code has himself admitted that the cheque in question Ex. CW1/1 bears his signature and further has also admitted that the same has been issued by him to the complainant. Further the presentation, dishonor of the cheque in question and the cheque returning memo has also not been challenged by the accused. Therefore, In light of the evidence on record coupled with the admission by the accused it stands duly proved that the cheque in question Ex CW1/1 was issued by the accused from his own account and the same is also signed by the accused. Further it also stands proved that the cheque in question Ex. CW1/1 was got dishonored vide cheque returning memo Ex. CW1/2 with the reason "Funds Insufficient".
13. It is trite to say that once execution of the promissory note is admitted (as has happened in the instant case), the presumption under Section 118(a) and Section 139 of the NI Act would arise that it is supported by a consideration. Such a presumption is rebuttable in nature. The accused can prove the nonexistence of a consideration by raising a probable defence. If CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 7/11 the accused discharges the initial onus of proof by showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the Complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In case, where the accused fails to discharge the initial onus of proof by showing the non existence of the consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) and Section 139 of the NI Act in his favour.
14. Throughout the trial two fold defence has been taken by the accused firstly that he has not been served with any legal demand notice by the complainant and the secondly the cheque in question Ex. CW1/1 has been issued by him as a security to the complainant and not in order to discharge his liability as alleged by the complainant.
15. Coming to the first line of defence taken by the accused No. 1 Rajeev Kapoor. The accused No. 1 Rajeev Kapoor both at the time of framing of the notice under section 251 of the Code and also in his statement under section 313 of the code has denied the receipt of the legal demand notice Ex. CW1/3. The complainant as CW1 has placed on record the legal notice of demand Ex. CW1/3, the registered post receipt Ex. CW1/4 to Ex. CW1/6 and also the returned envelopes Ex. CW1/7 to Ex. CW1/9. On perusal of the returned envelopes Ex. CW1/7 to Ex. CW/9 it is revealed that all of them have been returned unserved with remarks "refused". Interestingly DW1 Priya Kapoor (wife of accused) has admitted in her cross examination that she was residing with accused No.1 Rajiv Kapoor at D130, 6th Floor, Rohit Apartments, Sector 10, Dwarka i.e the address mentioned in the complaint and the legal demand notice but she also stated that she and accused No.1 Rajiv Kapoor were not staying at said Dwarka address in the year 2011 as they had left same. Surprisingly perusal of the report on summons sent to CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 8/11 the accused No.1 Rajiv Kapoor at the said Dwarka address reveals that the process server met the accused No.1 Rajiv Kapoor at the said address and he refused to accept the summons. Therefore it is apparent that address mentioned in the legal demand notice was the correct address of the accused No.1 Rajiv Kapoor and further it is also evident that the accused No. 1 Rajiv Kapoor was residing at the said address. It is trite to say that when there is service of notice by registered post on the correct address which apparently has taken place in the present case refusal on the part of the accused would amount to proper service. Otherwise, a trickster cheque drawer would avoid receiving the legal demand notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. Therefore, there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that the Legal Demand Notice has not been served upon him. It was for the accused to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the postal receipts were incorrect. Except denials and suggestions the accused has not any lead any evidence to corroborate his stand. Therefore its stands proved that the legal demand notice Ex. CW1/3 has been served upon the accused. As such non receipt of notice as a defence on part of the accused has no force.
16. Now coming to the second defence taken by the accused No. 1 Rajeev Kapoor. The accused No. 1 Rajeev Kapoor in his statement under section 313 of the code has admitted that he was having transactions with the complainant and he still owes an amount of Rs. 3, 00,000/ to the accused. Further the accused has also admitted his signatures on the cheque in question Ex. CW1/1, however he stated that he has given the cheque in question Ex. CW1/1 to the complainant as a security and not in order to discharge his liability as alleged by the complainant. To corroborate his stand, the accused No. 1 Rajeev Kapoor has examined accused No. 2 Priya Kapoor as DW1 and one Vikas Sharma as DW2. DW1 in her chief CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 9/11 examination has stated that she came to know from the accused No.1 Rajiv Kapoor that the complainant has got money invested through him in properties. It is further submitted by DW1 that the accused No.1 Rajiv Kapoor has given cheques to the complainant as security. Further DW2 Vikas Sharma also stated that the cheques have been given by the accused No.1 Rajiv Kapoor to the complainant as security. Surprisingly, both the defence witnesses have not testified as to the fact that whether the cheque in question Ex. CW1/1 is the part of the said security cheques allegedly given by the accused No.1 Rajiv Kapoor to the complainant. Further DW2 has also stated that he has given Rs. 3,00,000/ to the accused No.1 Rajiv Kapoor which has been given by him to the complainant in his presence, further DW2 has also deposed that Rs. 5,00,000/ was also paid by the accused No. 1 Rajeev Kapoor to the complainant in his presence. Surprisingly, DW2 has not testified to the effect that whether the said payment (though denied by the complainant) was made to the complainant by the accused No.1 Rajiv Kapoor against the cheque in question Ex. CW1/1. Further it is surprising to see that the said witness ie. DW2 is not a summoned witness and he has admitted in his cross examination that he has deposed in the court at the instance of the accused No. 1 Rajeev Kapoor. Further it has also come in evidence that the said witness and the accused No.1 Rajeev Kapoor are business partners and the witness has also stood as surety for the accused No. 1 Rajeev Kapoor, which cast doubts about the veracity of the deposition of DW2 and also shakes his credibility. Furthermore DW1 Priya Kapoor has largely testified only for exonerating herself from the liability towards the complainant.
17. Apart from the aforesaid flawed defence, the accused No. 1 Rajeev Kapoor has not lead any cogent evidence to corroborate his stand. It is trite to say that mere denial on the part of the accused No. 1 Rajeev Kapoor and putting suggestions to the complainant (CW1) would not absolve him from any liability. It was for the accused No. 1 Rajeev Kapoor to prove the circumstances under which the cheque in question Ex. CW1/1 was issued by him by leading cogent evidence so as to discharge and rebut the presumption raised against him by the Statute U/s 139 and 118 (a) of the NI CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 10/11 Act.
18. The accused No. 1 Rajeev Kapoor has not brought any material on record and also no cogent explanations or any probable defence which would rebut the shadow of presumption existing in favour of the Com plainant. Therefore, this court do not find any force in the arguments ad vanced by the learned counsel for the accused No. 1 Rajeev Kapoor that he has succeeded in rebutting the presumption under Section 139 of the NI Act.
19. From the materials brought on record and evidence lead by the com plainant it stands duly proved that the accused No. 1 Rajeev Kapoor has failed to rebut the presumptions U/s 118 (a) and section 139 of the NI Act. Therefore, I hereby hold that the Complainant has proved and substantiated the allegations that the cheque in question Ex. CW1/1 was issued by the ac cused No. 1 Rajeev Kapoor in discharge of his legal liability and for consider ation. Furthermore, accused No. 1 Rajeev Kapoor has also failed to prove that he has made payment to the complainant within 15 days from the re ceipt of the legal demand notice.
20. In view of the aforesaid discussion, I hereby hold that the complainant has proved and substantiated its allegation against the accused No. 1 Rajeev Kapoor and further all the ingredients of Section 138 of NI Act also stands proved against the accused No. 1 Rajeev Kapoor. Accordingly, accused No. 1 Rajeev Kapoor S/o Sh. A. K. Kapoor is hereby convicted for the offence u/s 138 of the NI Act.
This judgment contains 11 pages. Every Page of this judgment has been signed by me Copy of this judgment be given to the convict Rajeev Kapoor free of cost.
Announced in the open Court (RAVINDER SINGH II)
Dated 31.07.2014 MM (NI Act 7)
DWARKA/NEW DELHI.
CC No. 4850/14 H. L. Soni Vs. Rajeev Kapoor & Anr. Page No. 11/11