Delhi District Court
Rajeev Varshney vs Harjeet Singh on 15 September, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE :
NORTH EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
RAJEEV VARSHNEY VS HARJEET SINGH
CC/RBT No. : 352/14
U.I.D. No. : 02402R0575872006
U/s. : 138 N.I. Act
P.S. : SHAKAR PUR
J U D G M E N T
1 Sl. No. of the case : 352/14
2 Date of institution of the case : 17/10/06
3 Name of the complainant : Sh. Rajeev Varshney
4. Name of accused, parentage & Address : 1. MS. HARJEET KAUR CHAWLA
R/O 1/5577, BALBIR NAGAR EXTN.
SHAHDARA DELHI, ALSO AT NAGAR
NIGAM PRATHMIK VIDAYALA, WEST
ROHATAS NAGAR, SHAHDARA DELHI.
2. HARPREET SINGH CHAWLA.
R/O 1/5577, BALBIR NAGAR EXTN.
SHAHDARA DELHI,
5 Offence complained of or proved : U/s 138 of Negotiable Instrument Act
6 Plea of the accused : Pleaded not guilty
7 Date reserved for order : 16/8/2014
8 Final order : Convicted
9 Date of Judgment : 30/8/2014
THE BRIEF REASONS FOR THE DECISION
1. Brief facts of the present case are that complainant is law abiding citizen of India and carry on business of computer parts at C17 Guru Nanak Pura Laxmi N agar Delhi. CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 1 2 Accused No.2 had regular business relations with the complainant and he used to purchase various computer parts from the complainant and therefore, the accused No.2 is indebted to Rs.9,55,000/(Rupees Nine Lacs, Fifty Five Thousand) being the total outstanding amount payable by the accused to the complainant for total purchasing of computer parts by accused on several dates. It is further alleged that in partly discharge of liabilities towards total outstanding amount on him, accused had issued cheque bearing No. 805325 dt. 24/07/2006 for sum of Rs. 2,00,000/, cheque bearing No. 805326 dt. 29/07/2006 for sum of Rs. 2,50,000/, cheque bearing No. 805327 dt. 02/08/2006 for sum of Rs. 2,50,000/ all drawn on Punjab & Sind Bank Babar Pur, Shahdara , Delhi and as per assurance of the accused the complainant presented the above said cheques with his banker OBC, Rajgarh Colony, Delhi but all the cheques were dishonoured and returned back with the remarks "PAYMENT STOPPED BY DRAWER" vide returning memo dt. 18.08.2006. Complainant thereafter sent legal notice dated 28.08.06 through registered post to the accused and despite service of legal notice, accused neither replied to the said legal notice nor cleared outstanding liability against the cheque in question, resulting into the filing of present complaint.
2. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C.
was led by the complainant. After considering the material and the presummoning evidence on record, the accused was ordered to be summoned vide order dated 17.10.2006 to face trial for the offence under section 138 Negotiable Instruments Act, 1881.
CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 2 3
3. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C. for the offence under section 138, Negotiable Instruments Act, 1881 was served upon him on 15.02.2008 to which he pleaded not guilty and claimed trial.
4. After service of notice upon the accused under section 251 Cr.P.C. on 15/2/2008 ; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant examined himself as CW1 by way of affidavit Ex CW1/X and Ex invoice Serial No. 245 to 319 as Ex CW1/1 to CW1/12, three Cheques in question Ex CW1/13 to CW1/15, returning memos are Ex CW1/16 to CW1/18, legal notice dated 28.08.2006 is Ex CW1/19, postal receipts are Ex CW1/20 to CW1/22, UPC is Ex CW1/23 and regd. AD as Ex CW1/24. Complainant closed his evidence on 24.09.2010.
5. Thereafter statement of accused u/sec. 313 Cr.P.C recorded on 08.12.2011 wherein accused stated that he wants to lead defence evidence. In support of statement of accused, accused examined Sh. Sidh Ram Thapliyal as DW.1 and closed his defence evidence on 09.04.2014.
6. I have heard the rival submissions at Bar and have gone through the records of this case.
7. To constitute an offence under Section 138 N. I. Act it has to be proved that: CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 3 4
a) there was a legally enforcible debt.
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to insufficiency of funds.
d) that the demand notice was duly served on the accused and despite that he failed to make payment.
8. The Negotiable Instruments Act, 1881 raises two presumptions; 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 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as Rangappa Vs. Sri Mohan 2010 (5) SCALE 340, it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
9. Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge or debt or liability is mandate of law, CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 4 5 though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of same evidence and material before the court.
10. This is a case filed on 13.10.2006 for hearing came to be hearing on 17.10.2006 with the averment that; It is alleged/deposed that:
1) Accused no. 2 Harjeet Singh Chawla had a regular business with the complainant.
2) Accused no. 2 Harpreet Chalwa used to purchase various parts of the compute from the complainant as such outstanding balance amount is Rs. 9,55,000/.
3) In discharge of liability accused no. 2 issued three cheques dated 24.07.2006, 29.07.06 and 02.08.2006 bearing No. 805325, 805326 & 805327 for sum of Rs.
2,00,000/, 2,50,000/ & 2,50,000/ respectively for a total sum of Rs. 7 lacs which are Ex.CW1/13 to Ex.CW1/15.
4) As per Assurance of accused no. 2 Harjeet Singh Chawla above said cheques have been deposited by the complainant in his bank but returned back unpaid with remarks Stopped Payment as per returning memo date 18.08.2006
5) Thereafter complainant requested to make payment of outstanding in cash but failed
6) Accused no. 1 was aware regarding the insufficient funds in her account deliberately she issued the cheque.
7) Subsequently on 28.08.2006 a legal notice of payment has been sent which was duly served upon accused on 30.08.2006 despite that no payment has been made resulting into filing the present case.
CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 5 6
11. In the present case 12 invoices have been placed by the complainant from Srl. No. 245, 246,248,252,271,272,274,275,276,282,310 and 319 allegedly delivered the goods on 18.05.06, 19.05.06, 20&23.05.06, 03.06.06, 30.06.06, 03.07.06, 04.07.06, 05.07.06, 06.07.06, 06.07.06, 21.07.06 & 28.07.2006 which are Ex. CW1/1 to Ex. CW1/12 and admittedly this fact has not been mentioned in the complaint but in para no. 3 of the Affidavit of the evidence of the complainant which is Ex.CW1/X has been deposed as "the Carbon copies of invoices are Ex. CW1/1 to Ex. CW1/12.
12. On 15.02.2008, notice u/s 251 Cr.P.C. has been framed to which accused pleaded not guilty and wants to contest the case on the ground that neither I nor my son Harpreet had any liability towards the complainant. My son had taken cheque in question from him for investing the amount in the complainant company. I had not received the legal notice and due to failure to share the profit I requested/instructed to my bank to stop the payment of the cheque in question.
13. On the other hand in reply under the statement of 313 Cr.P.C recorded on 08/12/2011 accused Harjeet Kaur Chawla submitted that I have handed over blank singed cheque to my son Harpreet Singh for making investment with the object of earning profit as I did not get profit therefore I directed my banker to stop the payment and surprisingly admitted the service of legal notice with further contention that he did not make the payment as it was fraudulent transaction by the complainant and there was nothing due against the complainant. Then lead evidence while examining CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 6 7 Shri Sidh Ram Thapliyal UDC as DW1 only to establish that the sale tax on the alleged sale has not been paid as per the document Ex.DW1/A collectively total in 23 pages original record is kept in CC No. 7855/07 (New CC No. 353/14). This DW.1 admitted in his cross examination that "it is correct that Sale Tax is on total sale done by the party." The party has to deposit Form No. 30 and 31 at the time of Final assessment. I am not able to trace out 30 and 31 in the present case. This might have been deposited by M/S System Technologies.
APPRICIATION OF FACTS, EVIDENCE AND ARGUMENTS
14. Prior to proceed further here it is relevant to mention that complainant has filed five cases i.e one case bearing No. 352/14 against Harjeet Kaur Chawla and Harpreet Singh Chawla and since cheque has been signed by Harjeet Kaur, only notice has been framed against her on 15/2/2008, second case bearing No. 353/14 has been filed against Inderjeet Singh(brother in law of Harpreet Singh), third case bearing No. 351/14 filed against Harpreet Singh who is son of Harjeet Kaur Chawla & Jitender Pal Chawla, fourth case bearing No. 350/14 has been filed against accused Jitender Singh Chawla and lastly fifth case bearing No. 349/14 has been filed against Jasvinder Singh. Admittedly all the cheque in question have been given by Harpreet Singh on behalf of all other accused persons to the complainant.
15. Complainant examined himself as CW1 in which he exhibits his evidence by way of affidavit as Ex.CW1/X in all five cases and only consolidated crossexamined in part, has been done in the leading case file CC No. 351/14 i.e Ravjee Varshney Vs Harpreet Singh) on 01/10/2008 but subsequently, at joint request crossexamination CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 7 8 has been done on 24/09/2010 in every five cases except to little bite change according to the contents/subject matter of the particular case.
16. In all five cases all the accused have taken basically two defence; one is that cheque in question was/were given to the complainant for investment purposes on the inducement of complainant and contended on the ground that complainant has given assurance to the accused Harpreet Singh who admittedly given all the cheque to the complainant that complainant would pay 2 to 25% profit on total investment within one year. Therefore, he has filed one criminal complaint against complainant which is admittedly did not pursue by the accused and same had been dismissed for non prosecution. Further that order has not been challenged as such that complaint of the accused is no more pending against the complainant in any of the court ; second defence which is come up on record/taken by the accused that complainant has not paid sale tax on the alleged sale of goods to the accused as such examined one witness from the Sale Tax Department as DW1.
17. Accused relied upon the judgments reported as:
i M/s Pine Products Industries Vs. M/s R.P. Gupta & Sons 2007(1) DCR417 Delhi, High Court;
ii. Sanjay Mishra Vs. Ms. Kanishka Kapoor AIR2009(4) Bom. 436;
iii Rajeev Gupta Vs State & Ors.2008 (1)DCR142 Delhi High Court.
iv. Acq. DCC557(Bombay) Hiten Sagar & Anothers Vs IMC Ltd.
v. P. Jaya Raj Vs. S. Saroja 2007(1) DCR562,Madras H.C vi. Sri Muragan Financiers Vs P.V Perumal Acq. DCC381 Madras H.C 2004.
CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 8 9 vii Mahender Gulab Chand Kochal Vs Sakharam Ram Dass Patil 2009 All. MR.(Crl.) 1995 Bombay.
viii. Mahesh Vs. Ramakant, 2010 (2) 669(M.P) ix Bhikhambhai RamChhodbhai Makwana Vs. State of Gujarat & Anr. Acq. DCC 574, Gujarat H.C. x. 2007(1) DCR131 (Allahabad) Arvind Kumar Jaiswal Vs. State of U.P. xi Selvam Vs Muthu 2008 (1) DCR 81 (Mad.) xii. M/s Gold Spot Vs Naik Hotel & Others 2009(1) DCR476 (Bom.) xiii M/s Narayana Menon@Maini Vs State of Kerala &Anothers, AIR 2006 SC3366.
xiv Narender Anantsing Kachave Vs State of Maharashtra 2008 (2) DCR 283(Bom.) xv. 2012 XI AD SC 69, Rev Mother Marry Kittey Vs Reni C. Ketharan.
xvi. Hiten sagar & Anr. Vs IMC Ltd. & Anr. 2001 Crl. L.J 4311.
xvii Nand Kishore Mehta Vs Sudhir Transport Ltd. 2009 (1) DCR608 Bombay.
xviii Kulvinder Singh Vs Kafeel Ahmed 2013 II AD Delhi 81 xix Sh. Ram Dass Anand Naik Vs. Sh. Jacob Fernandes & Anothers 2005 Bombay H.C Acq. Dcc988.
18. However, he has taken third defence during arguments that instead of liability towards the cheque or to make payment to the complainant accused has to recover sum of Rs.55,00,000/ towards his/their share for which investment has been done and handed over the cheque in question to the complainant but admittedly neither in civil court any counter claim has been filed nor any case before any court in accordance with peculiar jurisdiction has been filed, hence it cannot be considered CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 9 10 and as such not maintainable in eyes of law.
19. Further Here it is also important to note that during crossexamination suggestion has been put to the complainant/CW1 which is denied that it is wrong to suggest that " I instigated the accused on 02/6/05 to invest in the business of computer and computer parts. It is wrong to suggest that whatever investment made by the accused in one year, I would give return as profit to him by 25%. It is wrong to suggest that said cheques were given by the accused to me(complainant) for investment purposes.
20. But admitted by CW1 that It is correct that accused brought the cheque worth of Rs.1,90,000/ from his real uncle Jasvinder Singh. It is correct that I have received cheque from Harpreet Singh Chawla more than Rs.90,00,000/(Rupees Ninety Lacs) including cheque in question in all five cases. I maintain the account book. I am not maintaining cash book and Ledger but I am maintaining rough account of final account prepared by my charted accountant. It is correct that goods in question are sale tax items. I have the idea but not exact that accused Harpreet gave cheque of various persons i.e all the accused persons worth of Rs.1,03,00,000/. It is correct that all the cheque of Rs.1,03,00,000/except Rs.19,00,000/ (Rupees Ninteen Lacs) but not exact were encashed. It is also correct that I have not placed any record of sale tax in respect of entire transaction, voluntarily stated that, it was not asked for but I have brought it today. It is incorrect to suggest that I have not paid sale tax on the transaction of material fact of Rs.1,03,00,000/. vol. I have brought the record today in the court. It is incorrect to suggest that I gave cheque of Rs.1,39,000/ and again CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 10 11 said Rs.1,35,000/ to the accused Harpreet Singh towards profit. It is correct that there is no signatures of the accused on Ex.CW1/1 to Ex.CW1/12.
21. Further CW1 deposed that It is wrong to suggest that no goods were supplied to the accused against invoice Ex.CW1/1 to Ex.CW1/12. It is wrong to suggest that Ex.CW1/1 to Ex.CW1/12 are fabricated documents and same were prepared by me to file in the court. It is correct that in the case titled as Rajiv Varshney Vs. Inderjeet Singh there is no signatures of accused on the invoice Ex.CW1/1 to Ex.CW1/18. It is wrong to suggest that notice dt. 28/8/2006 Ex.CW.1/19 was based on false and frivolous documents. It is correct that I have received the reply of said notice vide Ex.CW1/31.
22. After taking into consideration the discussion above as well as evidence come up on record I am of the considered view that accused has been taken inconsistent stand to the different courts i.e before this court as well as before other court and in the different case which is pending before this court. At the time of framing of notice on 15/2/2008 accused contended that he has not received any legal notice in case file CC No. 352/14 (whereas in all other four cases service of legal notice has been admitted) where as from the bare perusal of the affidavit paced by complainant during arguments in support of written statement, it reveals that accused has admitted the service of legal notice as cleared from verification of affidavit dt. 25/5/07. Later on surprisingly in the statement u/sec. 313 Cr.P.C service of legal notice has also been admitted in this case as well and during crossexamination he also put one question regarding sending of the reply to the legal notice which is Ex.CW1/31 which is replied CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 11 12 by CW1 as " It is correct that I have received reply of notice dt. 28/8/06 Ex.CW1/31 as well as it is correct that said notice was replied by the accused with other accused, same is Ex.CW1/24.
23. From the evidence lead by the parties I am of the considered view that accused has been admitted that he has given total cheque of Rs.1,03,00,000/ out of which Rs.90,00,000/ or Rs.80,00,000/ as per averments made in civil case might have been paid and rest has not been paid. Defence has been taken by the accused is that all cheque in question were given towards investment purpose not towards the discharge of legal liability therefore all cheques were returned back unpaid on account of "Payment Stopped by the Drawer" hence it become necessary to the accused to rebut this presumption by leading any cogent evidence that for what account/purpose cheque of Rs. 90,00,000/ has been paid because subject matter of all five cases are of total of Rs.23, 90,600/ which is approximately to the tune of Rs.1,03,000,00/.
24. Further in the case reported as "Rangappa Vs. Sri Mohan 2010 (3) JCC 254(NI), it has been held by Hon'ble Supreme Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt, means second defence which accused has taken that all cheques which are subject matter of the present cases are not issued towards the discharge of legal liability in as much as complainant could not establish the payment of sale tax upon the alleged sale to the accused for which cheque in question was alleged to be given by the accused to the complainant. Further bare perusal of the testimony of CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 12 13 DW1 who is officer of Sale Tax Department and he admitted that it is correct that sale tax is on the total sale done by the parties meaning thereby no as such discrepancies has come on record because above captioned DW1 who only exhibits the document Ex.DW1/A collectively and accused has failed to pointed out or bring to the notice of the court that how much tax has been evaded which is relevant or consider for the rebuttal of the presumption which is otherwise not maintainable keeping in view the judgment reported captioned above "Rangappa Vs. Sri Mohan 2010 (3) JCC 254 (NI)" .
25. More over admittedly complaint case is u/sec. 420 IPC which has been filed by the accused has also been dismissed and admittedly no counter claim or any suit for recovery has been filed by the accused. In this regard reliance can be paced on judgment reported as " V.S. YADAV VS REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs. 138,139 and Cr.P.C., 1973251281Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean misreasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 13 14 sake of fundThis order is made for consideration and that is why Sec.139 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881Sec.138/139 Dishonour of chequePresumption under sec. 139 Rebuttal of Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under sec.
139 N.I Act In order to rebut the presumption under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this caseJudgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 313 Cr.P.C is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness.
Where the accused does not examine himself as a CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 14 15 witness, his statement under sec. 281 Cr.P.C or 313 Cr.P.C cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under sec. 281 Cr.P.C that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 15 16 this could be proved by the respondent only by way of evidence and not by leading no evidence."
It was further held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya G. Hedge, 2008(1) JCC(NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec. 138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec. 139 of N.I Act. If mere statement under sec.
313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under sec. 139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which cheques were issued. It was for the accused to prove if no loan was CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 16 17 taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant.
Nothing was proved in this case.
26. Being guided by the above judgments I am of the considered view that since no evidence on behalf of accused led which can be taken only for consideration as rebuttal evidence against the presumption qua issuance of cheque in question or against legal liability.
27. Since it is matter of fact that complaint case of accused persons has already been dismissed hence defence qua fact that cheque were obtained fraudulent by the complainant on the point of investment cannot be taken in consideration and treated as rebuttable presumption because no evidence has come on record so far as in this regard, rather conduct of the accused shows that he/she was this much of negligent or failed to lead evidence i.e. why court concerned dismissed complaint of the accused for non prosecution. Under these circumstances all judgments relied upon by the accused are not applicable to the given facts and circumstances.
DECISION & REASON CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 17 18
28. .After taking into consideration the facts and circumstances of the case and evidence led by the parties , I am of the considered view that all four ingredients for the offence under section 138 N. I. Act has been proved in the present case beyond reasonable doubt. Since the accused himself has admitted that accused Harpreet Singh had handed over/issued cheque in question blank, duly signed and no crossexamination has been done on the point that signatures on the cheque have not belongs to the accused persons. Further in reply to the legal notice Ex.CW1/31 it is admitted by the accused persons that on good faith and with the hope my client/accused would earn handsum profit through you, my client arrange for the investment and handed over the cheque worth Rs.80,00,000/ approximately to you. Similarly in para 1 of preliminary objection of written statement in civil case accused Harpreet Singh admitted while averted " Harpreet Singh of his own behalf collected the blank cheque from various persons and handed over the same to the complainant" hence he made arrangement for Rs.80,00,000/ approxed to the complainant by handing over/receiving cheque but did not raised any objection qua the signatures on the cheque in question by the accused persons so I am of the considered view that essentially two ingredients of offence u/sec. 138 of N.I Act is established by the complainant i.e cheque in question is towards legal enforceable debt and given towards discharge of legal liability has been established because accused himself put the question to the complainant in respect to the fact that he has given cheques for total sum of Rs.1,03,00,000/ and in case Rs.80,00,000/ have been reduced from Rs.1,03,00,000/ then it remains to the amount i.e Rs.23,00,000/ and here the subject matter of all the complaint cases is total sum of Rs.23,00,000/ approximately. Under these circumstances CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 18 19 defence/explanation u/sec.313 Cr.P.C can not be considered as rebuttal of presumption which is otherwise lies in favour of the complainant. Service of legal notice dt. 28/8/2006 Ex.CW1/19 is also admitted.
29. Further in view of the judgment reported as "Rangappa v/s Sir Mohan 2010 (S) SCALE340" and " V.S. YADAV VS REENA 2010(4) JCC (NI) 323" objections in respect to the fact that no sufficient sale tax has been paid on the alleged sale has not sustainable in the eyes of law. Further service of legal notice also proved by the complainant which is Ex.CW1/19 because accused himself admitted either at the time of framing of notice u/sec.251 Cr.P.C or at the time of recording statement of accused u/sec. 313 Cr.P.C. Hence in the present case all the four ingredients have been proved by the complainant beyond reasonable doubt as such I am of the considered opinion that accused has failed to rebut the presumption and essential ingredients of the offence stands proved.
30. For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused stand proved beyond reasonable doubt.
Accused is accordingly convicted under Section 138 N. I. Act. Accused be heard separately on the point of sentence on 10/09/2014.
ANNOUNCED IN OPEN COURT
Dated : 30/08/ 2014 (RAKESH KUMARIII)
CMM, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 19
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IN THE COURT OF SH. RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT : KARKARDOOMA COURTS :
DELHI.
RAJEEV VARSHNEY VS HARJEET SINGH
CC/RBT No. : 352/14
U.I.D. No. : 02402R0575872006
U/s. : 138 N.I. Act
P.S. : SHAKAR PUR
ORDER ON THE QUANTUM OF SENTENCE :
Present : Complainant in person with counsel.
Convict with counsel.
1. Vide separate judgment passed and announced in the open court on 30/08/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. I have heard the Ld. counsel for the complainant and convict and his counsel on the Point of Sentence.
3. An application on behalf of accused filed u/sec. 360 Cr.P.C r/w section 3&4 of Probation Offenders Act and report from Probation office received.
4. It is argued by Ld counsel for convict that convict is aged about 61 years old and has no previous involvement or antecedents, to this effect affidavit also filed. It is also stated that convict is doing teaching job(Gurmukhi Teacher) on contract basis in primary school and CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 20 21 earning Rs.4000/ p.m, she/convict is also suffering ailments and she is having responsibility to look after her family. It is further submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as she is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last eight years and on account of conduct of convict, she may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
5. Opposed by Ld. counsel for complainant stating that convict be punished with maximum punishment as per law and he do not deserve any leniency. Adequate compensation has been prayed to be given to the complainant by Ld. counsel for complainant .
6. I have heard the submissions of Ld. counsel for convict and have perused the record.
Liability in this case has already been proved during the trial and the payment is pending in this case since eight years.
7. Having considered the above said facts and circumstances of the case and the fact that convict has no previous criminal background and report of Probation Officer and SHO in favour of convict, hence it is expedient to release him on probation of good conduct and behaviour. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.50,000/ with one surety in the like amount for the CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 21 22 period of two years. Further Rs.7,00,000/(Rupees seven Lacs) as compensation is awarded in favour of the complainant which has to be paid within one month failing which he shall under go simple imprisonment for two years and compensation shall be recovered as revenue of State.
8. Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation bond furnished, and accepted till 15/10/2014.
9. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT
Dated : 15/09/2014 (RAKESH KUMARIII)
CMM, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 22
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CC/RBT No. : 352/14
P.S. : SHAKAR PUR
15/9/2014.
PRESENT: Complainant in person with counsel.
Convict in person with counsel.
Vide separate order on the point of sentence, convict is granted benefit of Probation u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.50,000/ with one surety in the like amount for the period of two years. Further Rs.7,00,000/(Rupees seven Lacs) as compensation is awarded in favour of the complainant which has to be paid within one month failing which he shall under go simple imprisonment for two years and compensation shall be recovered as revenue of State.
Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation bond furnished, and accepted till 15/10/2014. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
(RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC NO. 352/14, RAJEEV VARSHEY VS HARJEET SINGH & ORS. Page 23