Delhi District Court
This Point And Is Laid By The Apex Court In ... vs Sri Mohan Air 2010 Sc on 29 May, 2012
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. R1245892005
Sh. Rishipal
S/o Pyare Lal
R/o H. No.148, Village
Mangolpur Kalan
Delhi110083.
............Complainant
V/s
Smt. Chandrakalal
W/o Sh. Padam
R/o H. No. 195
Village Mangol Pur Kalan
Delhi
...............Accused
JUDGMENT
(1) Name of complainant and address Sh. Rishipal S/o Pyare Lal R/o H. No. 148, Village Mangol Pur Kalan Delhi110083.
(2) Name of accused, Smt. ChandraKala.
and parentage address W/o Sh. Padam,
R/o H. No. 195, Village
Mangol Pur Kalan, Delhi.
(3) Offence of complaint of or proof: 138 N. I Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 02.09.2003
(6) Date of reserve of order 21.05.2012
(7) Final order CONVICTED
(8) Date of Final Order 29.05.2012
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The present complaint is filed Under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that the accused approached the complainant for a loan of Rs. 2,95,000/. The complainant keeping in view the cordial relation, gave a friendly loan of Rs. 2,95,000/ to the accused. The accused in order to discharge her above mentioned liability of paying back the loan to the complainant handed over cheque of Rs. 2,95,000/ bearing no. 123877 dated 13.05.03 drawn on Allahabad Bank, with the assurance that the cheque will be honoured on its presentation, but when the aforesaid cheque was presented for encashment by the complainant with his bank, the said cheque was returned back uncashed and dishonoured by the banker of accused for the reason "Payment Stopped By Drawer" vide returning memo dated 16.06.03. The complainant received intimation regarding the dishonour of cheque from his bank on 19.06.03. Complainant immediately contacted the accused and apprised of the aforesaid facts and requested her to pay the cheque amount of Rs. 2,95,000/ but the accused avoided the same. Thereafter, complainant sent a legal notice dated 15.07.03 to the accused demanding the amount of cheque. The accused was duly served with the said notice and despite of it, the accused has not tendered the said amount to the complainant. Hence, it is prayed that accused be summoned, tried and punished in accordance with law.
In her pre summoning complainant's evidence complainant has examined himself on affidavit as CW1. Complainant reiterated the contents of his complaint and placed on record the original cheque in question dated 13.05.03 issued by the accused as Ex. CW1/1, original cheque returning memo of Allahabad Bank, Mangolpur Kalan, New Delhi as Ex.CW1/2, wherein it has been stated that cheque in question is dishonoured due to "Payment Stopped By Drawer", return memo of complainant bank i.e of Corporation Bank, Rohini Branch as Ex CW1/3, legal demand notice dated 15.07.03 as Ex.CW1/4 and postal receipt as Ex.CW1/5 & UPC as Ex.CW1/6.
Accused was summoned for an offence punishable u/s 138 of Negotiable 2/10 :3: Instrument Act and notice u/s 251 Cr.PC for this offence was served upon her to which the accused pleaded not guilty and claimed trial and she has stated in her notice that her cheque book was lost.
Presummoning evidence of the complainant was adopted as post notice complainant evidence by the complainant.
In his cross examination complainant has stated that " I know the accused for a long time as accused is my sister in law (Bhabhi). I and accused resides in the same village but having different houses to reside. Before filing of the present case, I used to go to the house of accused as I have family relation and also meet the accused in marriages/functions etc. I cannot tell the exact dates when I meet the accused lastly. I do not know about the each and every family transactions of the accused family. He denied the suggestion he had stolen any cheque book signed by the accused from her residence. The accused and her son came to my house and handed over me the impugned cheque and many other cases are also pending against the same accused."
The accused could not demolish the stand of the complainant. Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Abovesaid three ingredients have been proved by complainant in the present case.
3/10 :4:The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] " Presumptions are rules of evidence and do not 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 nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt 4/10 :5: observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under section 281 CrPC was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that "She had lost her cheque book and on losing of the cheque book, she made an application on dt. 26.05.03 to her banker for making stop of the payment of cheques from her account. She further stated that the complainant along with his wife (Devar and Bhabhi) used to come to my home. She further states that she has been falsely implicated in this case and she has no liability towards the complainant"
In her statement u/s 281 PC the accused has preferred to lead defence evidence.
In her defence, accused has examined Sh. Mayank Probationary Officer, Allahabad Bank as DW1. In his examination he stated that he has brought the summoned record/document regarding account no. 20459698435 in the name of Smt. Chander Kala, as he had been authorized by Senior Manager, Allahabad Bank, Mangol Pur Kalan. A cheque book containing 20 leaves serial no. from 123861 to 123880 was issued to Chander Kala. On the application filed by her on 26.05.2003 to bank for stop payment regarding her account, payments were stopped. The statement of account is Ex DW1/A. In his cross examination, DW 1, admits that the statement for the period 01.01.2001 to 22.09.2008 has not shown/reflected the number of cheques i.e no 123861 to 123880. He admits that no letter pertains to that the account holder Smt. Chander Kala directed the bank to stop payment is annexed with the EX DW1/A. He further states that he could not say whether the bank has received any letter in respect of the payment stopped of the cheque book containing 20 leaves from 123861 to 123880. He denied the suggestion that the bank has deliberately stopped the payment of the abovesaid cheques in connivance of the complainant Smt. 5/10 :6: Chander Kala. He could not say whether the bank has received any letter in respect of stop payment of abovesaid cheques from the complainant. He admits that the bank is not able to produce the said letter.
Accused has examined herself in his defence as DW2 after allowance of application U/s 315 Cr.P.C. In her chief examination, she deposed that she had given a letter to bank for stop payment of the cheuqe in question as her cheque book was misplaced. The letter is Ex DW2/1. The complainant is her distance brother in law and he had visiting terms and used to visit her house.
She denied the suggestion in her cross examination that she had not given the letter Ex DW2/1 to the bank and further forged and fabricated the same by stamping it. She further denied the suggestion that she had taken a loan of amount of Rs. 2,95,000/ from the complainant Rishi Pal. She admits that there is only one other case pending beside this case U/s 138 N. I Ac against her. She further denied the suggestion that more than one case are pending against her and she was habitual to this effect that firstly he take loan and then to avoid his liability she adopted this ill tactics. She further denied the suggestion that other persons have lodged complaint against her in police station. She further denied the suggestion that She and her son went to the residence of the complainant and handed over the impugned cheque to the complainant in discharge of loan amount. She further denied the suggestion that the story of lost of cheque book is an after thought, made by her to avoid her liability.
Accused has examined in his defence Sh. Virender as DW 3, in his chief examination, he deposed that he along with his mother Chander Kala went to Allahabad Bank, Mangol Puri Kalan to stop the payment regarding missing/stolen cheques on dt. 26.05.2003.
In his cross examination, DW3 deposed that the EX DW2/1 was written by his maternal uncle. He had gone through the contents of the said letter. He admits that in the said letter, only the factum of missing of cheuque book is mentioned and not the factum of stolen cheques. He further denied the suggestion that he had not gone to Allahabad Bank, Manglol Pur Kalan to stop the payments regarding the cheques on dt. 26.05.2003 with his mother. He further denied the suggestion that he along with his mother went to the residence of the complainant and handed over the cheque to him.
Accused did not examine any other witness. Accordingly DE was close Oral arguments tendered by the Complainant as well as Ld. counsel for the 6/10 :7: accused were heard at length.
Ld. Counsel for complainant has stated that all the ingredients of section 138 has been complied with, therefore the offence is committed.
Entire record is perused ,the complainant has initially discharged his burden of proof by placing material on record and also upon relying on the presumption on his favour and the burden of proof shifted on the accused and it is well settled preposition of law that whereas the complainant has to established the guilt of accused beyond reasonable doubt the accused has to lead probable defence and to prove the same on the touchstone of preponderance of probabilities.
In the present case the accused has taken the defence that her cheques were lost and she has given the intimation to the bank in this regard and pursuant to her application payment from her account was being stopped. Law is very clear on this point and is laid by the Apex Court in Rangappa vs Sri Mohan AIR 2010 SC 1898 " Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a 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 way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act."
With regard to the facts in the present case, this courts also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 " The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume 7/10 :8: that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. "
The presumption is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.8/10 :9:
In the present case the accused has failed to give probable defence as in her defence she has examined the bank witness as DW1 but the bank witness could not be produced the letter which the accused has written to the bank for stop payment, the statement of account has been exhibited by the bank witness which clearly reflects that at the time when cheuqe was presented the amount stood in the account of the accused was insufficient to honour the present cheque.
Accused has again and again stated that the blank signed cheques were being lost but she is not able to explain that why she kept blank signed cheques in her house. It is also pertinent to mention here that she has not lodged any complaint with the police with regard to the lost of the cheque.
The reliance has been placed by this court on catena of judgment which shows that if this sole defence without cogent proof is to be believed it will negate very object of section of 138. In continuation of this facts, conduct of the accused is also seen by the fact that there is another 138 case pending against her. Adding to it has also been stated by the accused that the complainant has visiting terms with her and probably he has stolen the said cheques but no complaint of theft against the complainant has ever lodged.
Whereas the complainant has stated that as there was a family relation between him and the accused (both being Devar and Bhabhi) a friendly loan was advanced to the accused without execution of any loan agreement.
Therefore It is concluded that the complainant has proved his case beyond reasonable doubt and accused are unable to disprove their liability for issuance of cheque in question as well as its consequential dishonouring on the touch stone of preponderance of probability.
After having gone through the entire submissions of Ld. Counsel for the complainant as well as Ld. Counsel for the accused, this court is of the considered opinion that complainant has proved its case beyond reasonable doubt. Reliance has been placed by this court on the judgment of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35], wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".9/10 :10:
Keeping in view the aforesaid discussions, I hold that complainant has proved its case beyond reasonable doubt, therefore, accused is convicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 29.05.12. (SHEFALI BARNALA TANDON) METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI 10/10 IN THE COURT OF Ms. SHEFALI BARNALA TANDON, MM, DELHI CC No. 13329/1/03 Unique ID No.R1245892005 Rishi Pal Vs. Chander Kala U/s. 138 Negotiable Instrument Act 30.05.12 ORDER ON SENTENCE Present: Complainant in person.
Convict with Ld. Counsel Sh. Krishan Kumar.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is the first time offender and having family to support which consists of his ailing husband, his two unmarried sons and she is senior citizen of 65 years . It is further stated that convict is never involved in any criminal activity in the past and has not been previously convicted for any offence and a lenient view should be taken against the convict .
Counsel for the complainant has stated that the matter is pending since 2003 and the cheque in question was given by the convict in discharge of his liability maximum fine be imposed upon the convict. It is also stated that total amount involved in the present case is around Rs.2,95,000/ which is due since 2003 and on faith the loan amont was given as there was family terms with the accused.
I have heard the submissions and carefully perused the record.
Complainant regarding present cheques in question is pending since 2003 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act since the cases of dishonour of the cheque are on high rise in the society and the same shall not serve a deterrent to others. Considering the totality of circumstances, convict contd......
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is sentenced to simple imprisonment for a period of one year as accused is a female and is further ordered to pay compensation to the complainant for an amount of Rs.5,90,000/ (Five lac Ninty thousand only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 2 months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard.
Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 50,000/ with surety of like amount. Bail bond furnished and accepted till 30.06.12.
Copy of this order be given to both the parties free of cost.
Bail bonds be put up on 30.06.2012.
File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon)
30.05.12. MM (N/W)/Rohini Courts, Delhi.
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