Delhi District Court
Or In Part, Of Any Debt Or Liability. In ... vs . Bratindranath on 12 September, 2019
IN THE COURT OF SHRI SUSHIL KUMAR,
METROPOLITAN MAGISTRATE, NORTH-WEST-03, ROHINI
COURTS, DELHI
CC No. : 6039/2016
Sh. Devender Singh Rawat,
S/o Late Sh. K S Rawat,
R/o: House No.70, Pocket: D-14, Sector-3,
Rohini, Delhi-110085.
......Complainant
v.
Prem Ballabh Balodi,
S/o Sh. Shri Bhola Dutt,
R/o E-48, Sector-I, Rohini,
New Delhi-110085.
Also at:- Flat No.307 & 308A, First Floor,
Janta Flats, Nayay Khand-I, Indira Puram
Ghaziabad, UP
....Accused
Date of institution of case : 03.10.2012
Date of reserving the judgment : Not Reserved
Date of pronouncement of judgment : 12.09.2019
JUDGMENT
1. S. No. of the Case: 6039/2016 2. Date of institution of the case: 03.10.2012 3. Name of the complainant: Sh. Devender Singh Rawat 4. Name of the accused: Prem Ballabh Baladi 5. Offence complained or proved: 138 N.I. Act 6. Plea of Accused: "Not Guilty" 7. Final Order: Convicted u/s 138 of NI Act. 8. Date of Final Order: 12.09.2019 CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.1 of 12 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the present complaint filed by the Complainant against the above-named accused under section 138 read with section 142 of Negotiable Instrument Act, 1881 (hereinafter referred to as N.I. Act) for dishonour of two cheques bearing no.058776 dated 09.07.2012 for a sum of Rs.1,00,000/- and second cheque bearing no.058777 dated 08.08.2018 for a sum of Rs. 2,00,000/-, both drawn on Nainital Bank Ltd, West Pitampura Branch, Delhi were issued by accused in favour of complainant.
2. The brief facts of the case as averred by the complainant in his complaint are that complainant and accused were having friendly relationship with each other. He further averred that accused approached complainant on 15.06.2007 for providing a friendly loan of Rs.3,00,000/- and that repeated requests of accused, complainant had given Rs.1,00,000/- in cash and Rs.2,00,000/- by way of cheque to the accused against one promissory note dated 27.06.2007 which was duly signed by accused. That the accused assured that he will return the money within one year but he did not do so. It is further submitted that after completion of one year, when the accused has not returned the loan amount of the complainant, then the complainant visited time to time at the above mentioned first address but the accused could not be available at that address. That, thereafter, complainant met accused in the month of March, 2012 and demanded back the loan amount of Rs.3,00,000/-. It is further mentined in the complainant that accused issued two post dated cheque bearing no. 058776 dated 09.07.2012 for a sum of Rs.1,00,000/- and another cheque bearing CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.2 of 12 no.058777 dated 08.08.2012 for a sum of Rs.2,00,000/- both drawn on Nainital Bank, Rohit Kunj, Pitampura, Delhi in favour of complainant, towards the repayment of the aforementioned amount.
3. That complainant has further asserted in his complaint that accused had assured him that both the cheques in question will be honoured at the time of presentation but when the cheques in question were presented for encashment by the complainant with his banker, both cheques in question were returned dishounoured with two separate cheque return memos dated 17.08.2012 and 27.08.2012 respectively with the remarks "FUNDS INSUFFICIENT". That the complainant informed the accused regarding the dishonour of both the cheques in question and accused assured him to present the cheques again. The complainant presented the cheques again, however, the cheques got dishonoured again on 31.08.2012. the complainant felt that accused has no intention to return back the money. Thereafter, a legal notice dated 03.09.2012 was sent to accused through registered AD and Speed Post, however, despite service, accused failed to make payment against the cheque in question within the stipulated period. Therefore, the complainant was constrained to file the present complaint.
4. After taking pre-summoning evidence, the Court took cognizance of the offence under section 138 NI Act and directed issuance of process against accused. In pursuance thereof, accused appeared before the Court and furnished Court Bail. Thereafter, notice under section 251 Cr.PC was framed against the accused on 08.10.2013 to which he pleaded not guilty and claimed trial. Accused disclosed in his defence that the cheques in question were given by him to complainant but he has no liability towards CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.3 of 12 the complainant as he had transferred his vehicle i.e., Scorpio in the name of the complainant and adjusted his liability.
5. In his evidence, the complainant has examined himself as CW-1 by way of tendering an affidavit of evidence. The complainant placed reliance on the following documents :-
i) the two dishonoured cheques as Ex.CW1/1 and Ex.CW1/2,
ii) the cheque return memo as Ex.CW1/3 (Colly),
iii) the copy of legal notice dated 03.09.2012 as Ex.CW1/4,
iii) postal receipts as Ex.CW1/5 (Colly),
v) returned envelope along with AD Cards as Ex. CW1/6 & Ex.CW1/7.
6. In order to prove its case further, complainant Sh. Devender Singh Rawat examined himself as CW-1 and was cross-examined at length by Ld. Counsel for the accused.
7. Thereafter, CE was closed. It was followed by recording of statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused to which he pleaded innocence and false implication. Accused wishes to lead DE. Matter was posted for Defence Evidence.
8. In order to prove its case, accused examined himself as DW-1 another defence witness Sh. Niranjan Kumar, IT Officer, Nainital Bank as DW-2. DW-1/accused testified in his examination-in-chief that he had borrowed Rs.3 lacs from the complainant in the year 2007 because of business crises and that he had given three blank cheques to the complainant as a security of the aforesaid loan amount. Accused further CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.4 of 12 testified in his defence that he had only put his signatures on the bottom of the cheques and body of the cheques were not filled up by him. Accused further deposed in his defence that he had given his newly scorpio car bearing registration no.DL-8CL-1564 to complainant on account of payment of the aforesaid loan amount in November, 2007 vide delivery receipt dated 05.11.2007 which is Ex. DW1/1. Accused further stated in his examination-in-chief that complainant did not return the cheques in question given to him as a security stating that cheques in question were misplaced and he will return the same as and when he finds. That the complainant have misused the two cheques and filed the present case and one cheque is still with the complainant.
During cross-examination by Ld. Counsel for the complainant, DW-1 deposed he can read and understand English language and whatever is written in document delivery receipt dated 05.11.2007 (Ex. DW1/1) is correct with respect to the fact that there is nothing on this delivery receipt that car is going to be delivered to complainant in lieu to loan amount of Rs 3 lacs. He further testified that the cheques in question were signed by him. He further deposed that cash receipt dated 06.11.2007 was not signed by him at point A. He denied the suggestion that he had signed the cash receipt dated 06.11.2007. He denied the suggestion that he has received payment as consideration of selling of his car. He further submitted that he has not filed any document in respect of his present address. He further deposed that he has appeared before the Court after serving through warrants on the address of plot no. 113, SF-3, Sector -2A, Vaishali, Ghaziabad. He further testified that he has also not filed any document in respect of address plot no. 113, SF-3, Sector -2A, Vaishali, Ghaziabad. He further submits that he has not filed any record regarding his residential address after 05.09.2012 CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.5 of 12 regarding change of address from flat no. 307 & 308 A, I Floor, Janta Flat, Nyaykhand I, Indira Puram, Ghaziabad, UP. He denied the suggestion that he has received a sum of Rs 4 lacs in cash towards the consideration price of selling of his newly purchase scorpio car.
In order to prove his defence further, accused examined Ms. Niranjan Kumar, IT Officer witness from Nainital Bank, Pitampura as DW-2. DW-2 proved on record statement of account of account no.2000000005007 in the name of account holder namely Prem Ballab Baladi for the period from 01.04.2007 to 31.12.2007 and the same is Ex. DW2/A (running into 3 pages). He has also proved original cheques bearing no.58784, 58790, 58793, 58795 and 58769 and the same are Ex. DW2/B to Ex. DW2/F. During cross-examination of DW-2 by Ld. Counsel for complainant, he testified that cheque is considered outdated on the basis of the date mentioned on the same and not on the basis of the year / month in which the cheque book is issued by the bank to the account holder. DW-2 further deposed that the cheques Ex. DW2/B to Ex.DW2/F are not in the name of complainant Sh. Devender Singh Rawat. She further deposed that the cheques Ex. CW1/1 and Ex. CW1/2 pertains to Nainital Bank and same has been issued in the name of the accused / account holder namely Prem Ballabh Baladi. Thereafter, on 03.04.2019, upon the submissions of Ld. Counsel for accused, DE was closed. The matter was fixed for final arguments.
9. The Court has carefully perused the case record and have heard arguments advanced by Ld. Counsel for complainant as well as by Ld. Defence counsel.
CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.6 of 12
10. At the onset, it would be appropriate to have a glance at the ingredients of section138 NI Act which reads as under :
"138. 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 whole 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 agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision 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 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 n writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.7 of 12 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 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."
11. Coming back to the factual matrix of the present case. In the present case, accused has taken the defence that he had given three blank cheques including the two cheques in question to the complainant as a security of the loan amounting to Rs. 3,00,000/- taken by him from complainant but that the said loan was paid by him by transferring his Scorpio Car to the complainant. Accused has taken the defence that he had only put his signatures on the bottom of the cheques and body of the cheques were not filled up by him. It has been stated by accused that the complainant has misused his cheques despite receiving his scorpio car after adjustment of the loan amount. Accused has also taken the defence that he has not received the legal notice and that he had no liability towards the complainant at the time of presentation of the cheques in question.
12. Section 118(a) of NI Act provides that every negotiable instrument shall be presumed to have been made or drawn for consideration. The Hon'ble Supreme Court in the case of Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm & Ors. AIR 2008 SC 2898 has thus held:
"Under section 118 (a) of the negotiable instruments act, CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.8 of 12 the court is obliged to presume, untill the contrary is is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
13. Further, according to section 139 of NI act, a presumption is drawn against the drawer and in favour of the holder that "unless the contrary is proved, the holder of a cheque received the cheque for discharge, in whole or in part, of any debt or liability. In Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16, the Hon'ble Supreme Court has opined as under:
"22... It is obligatory on the court to raise this presumption (under section 139 NI Act) in every case where the factual basis for raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court 'may presume' a certain state of affairs. Presumption are rules of evidence and do not CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.9 of 12 conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact."
14. In view of the above presumptions and above-cited judgments, onus was upon the accused to prove in the trial by leading cogent evidence that he had repaid the loan of Rs.3,00,000/- to the complainant by way of transfer of his vehicle to the complainant and that the complainant has misused the two blank cheques in question which were given by him as a security of the loan amount. Thus, it is not in dispute that the two cheques in questions were given by accused to the complainant at the time of taking loan of Rs. 3,00,000/- from the complainant. It is also not in dispute that both the cheques in question bear signature of accused. The only defence taken by accused is that the complainant has misused the cheques even after repayment of the loan. Interestingly, accused has got examined himself as defence witness in the present case. During his deposition in the Court, he has proved on record a document Ex. DW1/1 i.e., delivery receipt to prove the factum of delivery of his scorpio car to complainant towards adjustment of loan amount. However, perusal of the document Ex. DW1/1 shows that nothing with respect to adjustment of the loan amount had been mentioned upon the same. Further, another cash receipt has been annexed with the same which shows that the total amount for which the said car was purchased was Rs.4,00,000/- out of which Rs.2,50,000/- was paid in cash CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.10 of 12 and the balance amount of Rs.1.50 lacs was given in cash by the complainant. It is also important to mention that two persons namely Mr. Kishan Chand Sethi and Mr. Sudama Singh are the witnessess of said cash receipt, however, none of the said witnesses have been examined by accused to prove the fact that the car was given for adjustment of the loan amount. Thus, this court is of the view that the accused has failed to rebutt the above presumptions. Further, the defence argued by the accused is one which cannot be accepted unless compelling reasons are there.
15. As already discussed above, accused has admitted the fact that he had taken loan of Rs.3 lacs from the complainant. He has also admitted that the cheques in question bear his signatures, however, he has disputed that the complainant has misused the blank cheques despite adjustment of the loan amount. He has testified in his defence evidence that the cheques in question were not returned by the complainant on the pretext that the same have been misplaced. No complaint with respect to misuse of cheques in question to any authority has ever been made by accused nor any such complaint has been proved on record during the trial. On the other hand, he has himself admitted the fact that there is nothing mentioned upon the delivery receipt which shows that the car was going to be delivered to the complainant in lieu of the loan amount of Rs. 3 lacs. Accused has also stated in his defence that he had not received legal demand notice but no evidence has also been led by him to that effect also. Thus, the accused in this case has not succeeded in adducing any evidence to rebut the presumptions raised against him.
CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.11 of 12
16. In the light of above discussion, this court is of view that accused Prem Ballabh Baladi is guilty for the offence punishable u/s 138 N.I. Act and is accordingly convicted for the same. Let the convict be heard on the point of sentence seperately. Digitally signed SUSHIL by SUSHIL KUMAR KUMAR Date: 2019.09.13 16:29:52 +0530 Announced in open Court (SUSHIL KUMAR) on 12th Day of September, 2019 Metropolitan Magistrate, North-West-03, Delhi CC No. 6039/16 Devender Singh Rawat v. Prem Ballabh Baladi Page No.12 of 12