Delhi District Court
Cc No.26/16 Shaheen Khan vs . Suhaib Khan 1/8 on 21 July, 2018
IN THE COURT OF MM/ CIVIL JUDGE, SOUTH EAST DISTRICT, SAKET
COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Shriya Agrawal, DJS
CC No.26/2016 (Old No.807/13)
In the matter of:-
Smt. Shaheen Khan
W/o Mr. Mohd Zubari,
R/o 94, Gaffar Manzil, Jamia Nagar,
New Delhi-110025
At present
E-225 & 226, Shaheen Bagh,
Jamia Nagar, New Delhi-110025
..........Complainant
Vs
Suhaib Khan
S/o Mr. Manzoor Khan
R/o
1.F-275/A, Top Floor, Shaheen Bagh, A.F Enclave, Part-II, Jamia Nagar, New Delhi-110025
2.K-63, Gali No.5, A.F Enclave, Part-II, Jamia Nagar, New Delhi-110025
3. 19/21, Qanoon Gyan, Upper Cot, Bulandshahar, UP Accused.
Date of institution of complaint : 11.04.2016
Date on which order was reserved : 28.05.2018
Date of pronouncement of the order : 21.07.2018
Judgment
1. The present complaint had been instituted against the accused seeking prosecution U/s 138/142 NI Act read with Section 420 IPC.
2. Case of the complainant as per the complaint filed is that the accused had approached the complainant's husband Mr. Mohd Zubair on 01.07.2013 with request for friendly loan of Rs.32,500/- upon the assurance that the same would be repaid within 2 days. Due to cordial relations subsisting between the accused and complainant's husband for the last five years, the husband of complainant instructed his wife that is the complainant, to give Rs.32,500/- to the accused, as friendly loan for his business purpose. The same was handed over to the accused CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 1/8 at the house of complainant in the presence of complainant's husband at about 10:00 P.M on 01.07.2013. The accused issued a post dated cheque bearing no.068088 dated 07.07.2013 for sum of Rs.32,500/- drawn on HDFC Bank, Lajpat Nagar Branch, New Delhi on 02.07.2013 as per demand of the complainant, at the latter's house. It was an understanding that in case there would be delay in making the payment of the friendly loan, complainant would encash the cheque, which was assured to get honoured upon presentation. However despite repeated demands, as the friendly loan amount was not repaid, the Complainant went ahead with presenting the cheque with her banker at Jamia Cooperative Bank at Jasola Village on 08.07.2013, which cheque however stood returned vide memo dated 09.07.2013 with remarks ' Funds Insufficient'. When the complainant informed the accused about the same, he assured that if the cheque were presented again after 25.08.2013, the same would get honoured. The complainant again presented the cheque with her banker on 26.08.2013 for encashment which was returned by the banker with returning memo dated 27.08.2013 with remarks 'Funds Insufficient'. It is alleged that the accused had mischievously issued the cheque knowing fully well that the cheque would get dishonoured. The complainant sent a legal notice dated 24.09.2013 to the accused through her counsel calling upon him to make payment within 15 days from receipt of the notice. The legal notice stood served on 25.09.2013 and 26.09.2013. Despite service, the payment was not made and hence the present complaint has been filed.
3. On 12.11.2013 the pre-summoning evidence was tendered by the complainant by way of affidavit and her documents. The Ld. Predecessor observed that a prima-facie case of the dishonour of cheque stood made out against the accused and therefore he took cognizance of the same on the complaint, also issuing summons to the accused. Accused was admitted to bail subsequently and notice under Section 251 Cr.P.C. stood served upon the accused on 24.04.2014. In response to the notice under Section 251 Cr.P.C., the accused pleaded not guilty and claimed trial. In his defence he stated that he had taken a friendly loan from the complainant. However, the cheque was issued as security. Loan amount had been returned to the complainant and the latter had issued a duly executed receipt CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 2/8 against the payment, witnessed by certain witnesses. When the complainant was asked to return the cheque in question, she stated that cheque was misplaced by her, although assuring the accused that she would not misuse the cheque in any case. Since complainant developed a malafide intention, she misused the cheque in question. Accused has denied receiving the legal notice.
4. The matter got listed for complainant's evidence. On 27.08.2014 the complainant adopted the pre-summoning tendered by affidavit relying upon the documents namely Ex CW1/A SPA dated 08.11.2013 executed by the complainant in favour of her husband Mr. Mohd Zubair, Ex.CW1/1 i.e. the cheque in question, Ex.CW1/2 i.e the bank return memo, Ex.CW1/3 i.e the second bank return memo, legal notice Ex.CW1/4 (colly), postal receipt Ex.CW1/5 and tracking report Ex.CW1/6. In his cross examination recorded on 27.08.2014, the SPA holder of the complainant stated that he had come into contact with accused through his brother Mr. Suhail. He has good relations with accused and his brother for the past more than 5 years. It is stated by the witness that he had given a loan of Rs.32,500/-to the accused and that he previously used to give money to the brother of the accused as well, at the latter's request. In the course of the cross examination recorded on the same day, the witness was confronted with receipt Ex.CW1/DX1 and he was asked if the same had been executed at the time when accused had repaid the cheque amount to his wife, to which question the witness stated that receipt was a forged and fabricated document. However he admitted that receipt bore the signatures of his wife at point A. He again stated that he could not say if the signatures were of his wife. He denied the suggestion that the cheque amount had been repaid to him and that he had not returned the cheque in question to the accused. He stated that he had not repeatedly asked the accused for payment, since he was having good relations with him.
5. The second witness who entered the witness box on behalf of complainant was the Inspector, Post Office, New Friends Colony, New Delhi who had brought one letter issued by the Post Master Ex.CW2/1 alongwith delivery receipt Ex.CW2/2. In his brief cross examination he denied the suggestion that the documents filed by him were not reflecting the name of the person who had CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 3/8 received the delivery of the article.
6. The accused in his statement under Section 313 Cr.PC admitted that he had approached the husband of the complainant on 01.07.2013 with request to him to help him with a friendly loan of Rs.32,500/-, which was given to the accused at the request of the husband of the complainant, in the presence of the complainant's husband at 10:00 P.M on 01.07.2013. He also admitted that he had issued the cheque in question bearing no.068088 dated 07.07.2013 for Rs.32,500/- drawn on HDFC Bank, Lajpat Nagar, New Delhi in favour of the complainant in discharge of his debt or liability. However, in respect of the alleged dishonour, he explained that he had returned the amount to the complainant after a week, for which also a receipt was issued. However, when he demanded the cheque back, the same was not returned and she was told that the cheque got lost. Although the complainant had misused the cheque, it is a matter of record that the cheque got dishoured. He denied receiving the legal notice. He stated that he did not make the payment as there was no liability, as the amount stood repaid within week after receiving the amount.
7. The accused also opted to lead evidence in his defence. He examined two witnesses. Mr. Mussavir Khan (DW1) deposed on the strength of his affidavit Ex DW1/A, stating that he was a friend to the accused, and that the latter had taken a loan of Rs. 32,500/- from the complainant. After some time the same was repaid to the complainant, in his presence. The complainant had signed upon a receipt acknowledging the receipt of the loan amount. The receipt was prepared and signed by the complainant in his presence and he too had signed the receipt as a witness. In his cross examination, he stated that he does not know the complainant and that he had seen her in the office of the accused on 7.7.2013, when she was wearing a burqa. He admitted that he had not known the complainant prior to 7.7.2013. The lady present in the office of the accused on the concerned day did not tell him that she was Ms. Shaheen Khan. It was the husband of the complainant who had told him that his wife Ms. Shaheen Khan was present. It was he who had introduced him to her.
8. He stated that the receipt Ex CW1/DX1 was written in the handwriting of CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 4/8 his friend Mr. Suhail Khan. Some amount was given by the accused Mr. Suhaib to the husband of the complainant on 7.7.2013. He and the complainant had signed the receipt, but the accused had not signed the same. He acknowledged when confronted that while in his affidavit he had stated that the receipt was prepared and signed by the complainant, in his cross examination he stated as above. He also stated that the accused had not taken the loan in his presence and it was merely incidental that he was present at the spot when the accused had returned the money to the complainant on 7.7.2013.
9. An application U/s.73 Indian Evidence Act was moved for opinion of a handwriting expert on behalf of accused. Submissions were heard and the Ld. Predecessor had ordered that both the parties can bring handwriting expert of their own to take photographs of admitted signatures and the disputed signatures and furnish their reports. On 05.02.15, the submissions were advanced on the request for taking specimen signatures of the complainant. Both parties agreed for an advocate to be appointed as a local commissioner for taking the signatures of the complainant at her home. Pursuant to these directions, the signatures of the complainant were taken and the two expert witnesses for both sides on 13.02.2015 had taken the photographs of the specimen signatures and the disputed signatures on the receipt. They subsequently filed their reports. The second witness examined by the accused was the expert witness, Ms.Sonia Kumari as DW2. She tendered her reports Ex.DW2/A, whereby it was observed that the signatures on the Ex.CW1/DX1 and the specimen signatures were of the same individual, as no fundamental differences were detected. In her cross examination, the witness DW2 was asked several questions pertaining to her qualifications and her findings. She stated that although she was working as a Scientific Officer with the Premier Forensic Science Institute, she had rendered the work in the present matter in her individual capacity. She had joined the institute as a trainee, however was subsequently appointed at the post of Scientific Officer. In her cross examination, she admitted that she could not trace her appointment letter. She also admitted that the report filed by her did not carry the name of senior or any supervisor, nor did she attach the copy of reference letter given by the counsel for accused to her. She CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 5/8 later on produced one certificate issued by the director of the institute to her to show authorization.
10. The expert on behalf of the complainant was examined as CW3, who had also tendered his report Ex.CW3/A. In his cross examination the witness stated that he has expertise in the field and has given his expert opinion in numbers of matters. The witness was able to answer pointed questions with respect to the intricacies in the formation of the handwriting and natural variations/differences. By way of his report, he has attributed forgery by memory on the Ex.CW1/DX1 (receipt).
11. An application U/s 91 Cr.PC was moved whereby it was stated that the accused was not in India on the date of preparation of the receipt and alleged payment. The application was moved for directions for production of passport of the accused. The accused eventually of his own volition produced the copy of his passport for perusal.
12. Heard the final arguments. Perused the record.
13. In the ruling of Kusum Ignots & Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000) 2 SCC 745 the Apex Court has spelt out the ingredients of the offence under Section 138 of the Negotiable Instruments, 1881 as under:-
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that ac- count for the discharge of any debt or other liability;
(ii) that 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;
(iii) that cheque is returned by the bank unpaid, either be-
cause the amount of money standing to the credit of the account is insufficient to honour the cheque or that it ex- ceeds the amount arranged to be paid from that account by an agreement made with the bank;
CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 6/8
(iv) the payee or the holder in due course of the cheque 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 15 days (now 30 days) of the receipt of in- formation by him from the bank regarding the return of the cheque as unpaid;
the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."..
14. The accused has admitted the borrowing of the loan amount of Rs. 32,500/- from the complainant. He has also not disputed the issuance of the cheque in question. The defence essentially taken throughout by the accused is that there existed no liability ,since the amount loaned to him already stood repaid. He has relied upon the receipt Ex.CW1/DX1 dated 7.7.13 to substantiate his claim that the repayment of the dues was done and that no liability subsisted.
15. In view of provision of Section 139 Negotiable Instruments Act, 1881 which reads as follows:-
" It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or part, of any debt or other liability."
16. Since the issuance of the cheque in question has been admitted by the accused, the presumption squarely applies to the case at hand, that the cheque was issued towards an existing liability. The claim of the accused on the contrary is that the cheque was issued only as security and was never meant to be encashed. The accused has examined only one witness to the receipt viz-Mr.Mussavir Khan as DW-1. Neither did the second witness nor did the accused himself step into the witness box. The sole witness to the receipt examined also admitted contradicting in the deposition by way of affidavit where he had stated that the complainant had authored the receipt and on the other hand, in his court testimony, he stated that CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 7/8 Mr. Suhail had prepared the receipt. Even otherwise the witness failed to confidently identify the complainant, stating that he had not known her prior to the said meeting on 07.07.2013. Moreover, she was admittedly under a veil. The perusal of the testimony of DW-1 shows that the witness clearly could not say if the payment allegedly handed over was actually received by the complainant and for that matter, if at all the complainant was even present in the office of the accused as claimed. Also, his deposition clearly lacks in credit worthiness, in view of the contradiction in statements as to who authored the receipt Ex.CW1/DX1.
17. The expert witness who had appeared as DW2 in her cross examination could not establish her professional competence as a handwriting expert. She claims to have been working as a Scientific Officer having educational qualifications in the field of forensic science. On the basis of the report filed and her court testimony, no specific qualification of expertise or trainee in the field of handwriting analysis could come through. Thus her report also does not inspire confidence, since her credentials as an expert are themselves doubtful.
18. Since the onus to rebut the presumption U/s 139 Negotiable Instrument Act was solely on the accused, as the provision carries a reverse onus clause, the accused, even by pre-ponderence of probabilities has failed to rebut the presumption. The standard as required to be met by the accused as was held in Sangappa Vs. Sri Mohan ((2010) 11 SCC441), was that the accused was to raise a probable defence creating doubt about the existence of a legally enforceable debts or liability . The accused has failed to meet the said standard in defence, for the above discussed reasons, and also because he himself also did not step into the witness box.
19. Thus, with the presumption U/S 139 NI Act coming into play, the offence U/s 138 NI Act has been brought home. The accused is hereby found guilty and stands convicted for the offence U/s 138 NI Act, 1881.
20. Put up for hearing on sentence on 25.07.2018. Digitally signed by SHRIYA Pronounced in the Open Court SHRIYA AGRAWAL ON 21st July 2018 AGRAWAL Date: 2018.07.23 17:57:00 +0530 (Shriya Agrawal) MM/CJ/SE/Saket/21.07.2018 CC NO.26/16 Shaheen Khan Vs. Suhaib Khan 8/8