Delhi District Court
Cis No 8764/16, Rajesh Jindal vs . Dharmender, U/S. 138 N.I. Act, 1/16 on 2 December, 2019
IN THE COURT OF MS RASHMI GUPTA
METROPOLITAN MAGISTRATE06, NORTH,
ROHINI COURTS, DELHI
Case No. 8764/16
CC No. 08/1/16
Rajesh Jindal v. Dharmender
U/S. 138 Negotiable Instrument Act
PS: Adarsh Nagar
JUDGMENT
1) Name of the complainant :Sh. Rajesh Jindal, S/o Sh.
and parentage Jai Kishan Jindal 2) Name of the accused :Dharmender, S/o Sh. Shyam and parentage Singh Chauhan 3) Offence complained of : Section138 Negotiable Instrument Act 4) Plea of accused : Pleaded not guilty 5) Date of institution of the case : 14.01.2016 6) Date of reserve for order :17.09.2019 7) Final order : Convicted 8) Date of final order : 02.12.2019 BRIEF REASONS FOR THE DECISION OF THE CASE:
1. Present is a complaint for offence under section 138 of the Negotiable Instrument Act (hereinafter referred to as the 'Act') with averments that the complainant Rajesh Jindal was close friend of CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 1/16 accused Dharmender and the accused approached the complainant for financial assistance in the month of November, 2014 and borrowed a sum of Rs. 4 lacs as friendly for personal use and assured to return the same within 3 months. For the purpose of returning the loan amount the accused issued a cheque bearing no. '113821' dated 16.11.2015 for a sum of Rs. 2,53,000/ drawn on Oriental Bank of Commerce, Swaroop Nagar, Delhi.
2. The present case pertains to the cheque bearing no. '113821' dated 16.11.2015.
3. Further, when cheque bearing no. '113821' dated 16.11.2015 was presented by the complainant to Oriental Bank of Commerce, the same was returned back being dishonored due to the reason of insufficient funds vide memo dated 20.11.2015. Thereafter, the complainant issued legal notice dated 10.12.2015 demanding the amount of Rs. 2,53,000/ the same was sent through speed post at the address of the accused.
4. The complainant tendered his evidence by way of affidavit in his pre summoning evidence and relied upon the following documents i.e. cheque bearing no. '113821' dated 16.11.2015 which is Ex. CW1/1, cheque return memo issued by the bank dated 20.11.2015 as Ex. CW1/2, legal notice dated 10.12.2015 as Ex. CW1/3, postal receipt vide which the said legal demand notice was sent through registered post is Ex. CW1/4.
5. Thereafter, the accused was summoned and notice against him was framed under section 138 NI Act vide order dated CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 2/16 02.08.2016 to which he pleaded not guilty and claimed trial and took the defence that he only took a loan of Rs. 50,000/ from the complainant, which he had already paid in cash but he was not given any receiving.. The cheque in question alongwith another blank cheque was given by him to the complainant at the time of availing loan from him.
6. During the post summoning evidence, the complainant adopted his pre summoning evidence which was tendered by way of affidavit and he was duly crossexamined by the Ld. Counsel for the accused. No other witness was examined by the complainant.
7. Thereafter, accused was examined under section 313 Cr.P.C on 27.03.2017. The accused denied taking of loan Rs. 4,00,000/ and stated that he had taken loan only of Rs 50,000/ which he had already returned. That he had issued two blank signed cheques to the complainant at the time of availing loan from him. He also denied receiving of any legal notice.
8. The accused chose not to examine any witness in his defence and thereafter, the matter was fixed for final arguments.
9. Sh. V.D. Mishra advanced his arguments on behalf of the complainant. Sh. A.S. Rana with Sh. Abrahm, advanced his arguments on behalf of the accused.
10. Both the sides have been heard and the record has been carefully perused.
EVIDENCE OF THE COMPLAINANT
11. Complainant Rajesh Jindal his post summoning evidence, CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 3/16 appeared as CW1 and adopted the contents of affidavit tendered by him at presummoning stage. In the crossexamination by the Ld. Counsel for the accused, however, nothing substantial could be elicited from the cross examination of the complainant which could support the defence of the accused or create doubt on the credibility of the witness.
12. The complainant in his crossexamination stated that he was earning about Rs. 50,000/, on an average, per month. He specifically denied the suggestion of taking two blank signed cheques from the accused as security. He stated that he was handed over duly filled cheque by the accused. The cheque in question was not filled in his handwriting. He denied the suggestion that accused had taken a loan of Rs. 50,000/ from him. But, he stated that he had given a loan of Rs. 4 lacs to the accused in one go. The accused returned only part amount and the balance without interest was Rs. 2,53,000/. That the accused gave one installment of Rs. 50,000/ and Rs. 25,000/ were given in five monthly installments of Rs. 5,000/ each for which he had issued the receiving. Relative of accused namely Tejpal had got compromised the matter in lump sum of Rs. 3,28,000/.
13. The factual position being thus, now let us quickly run through the legal benchmark which is to be satisfied in order to constitute an offence u/s 138 NI Act:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 4/16
(ii) that a cheque should have been issued for discharge, in whole or in part, of any debt or other liability.
(iii) that the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier.
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said 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. Being cumulative, it goes without saying that it is only when, all the aforementioned ingredients are satisfied, that a person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
SERVICE OF LEGAL DEMAND NOTICE
15. Let us begin by examining first, the much hackneyed and cliched defence of non service of legal notice. Perusal of the file shows that the accused has at the stage of recording his statement under section 313 CrPC has denied the factum of receipt of legal CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 5/16 demand notice. However, perusal of the file shows that the legal demand notice which was sent by the complainant was delivered to the accused. The complainant has placed on record the acknowledgement issued by Department of India Post (Ex.CW1/4), which clearly shows that the same was delivered at the address of the accused.
16. This defence of the accused has to fail for more than one reason. Accused has denied the service of legal notice, but quite notably, has not disputed the correctness of his address as appearing on the legal notice. This address on the legal notice once having been shown to be correct address of the accused and the legal notice having been dispatched by registered post, a presumption of 'due service' arises (in view of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act) and now it was incumbent on the accused to lead evidence to prove that the notice was not served on him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of 'due service'. A mere denial of the service of legal notice would not ipso facto rebut the presumption of 'due service'. In any event, in view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 6/16 to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. The relevant extract of the decision deserves to be quoted in extenso : ''17. It is also to be borne in mind that the requirement of giving of notice is a departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sentby post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of Act, make payment of the cheque amount and submits to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''.
17. The non service of legal notice challenge having been met, let CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 7/16 us now turn to the core issue in this case and examine ''whether the cheque in question can be said to have been issued in discharge of legal liability or not''.
EXISTENCE OF LEGALLY ENFORCEABLE DEBT OR LIABILITY.
18. Complainant in his evidence examined himself as CW1 and he adopted his presummoning evidence. In the crossexamination by the Ld. Counsel for the accused, however, nothing substantial could be elicited from the cross examination of the complainant which could support the defence of the accused or create doubts on the credibility of the witness. In the crossexamination, the complainant admit that on average he earns Rs.50,000/ per month. He also admitted that he has not shown the loan amount of Rs.4 Lacs in his ITR. He denied the suggestion that the accused has only took a loan of Rs.50,000/ from his which he has returned to him with interest. He also denied the suggestion that he has taken the blank signed cheques from the accused and the same has been misused by him. He also denied the suggestion that he is engaged in giving loan/money on interest to persons.
19. In the present case, it is alleged by the complainant that he is having a friendly relation with the accused and in the first week of November, 2014 the accused asked him for financial help of Rs.4 Lacs for his personal use. It is also alleged by the complainant that he has arranged Rs.4 Lacs from his relatives and gave Rs.4 Lacs to the accused and the accused assured him that he will repay the same CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 8/16 within a period of three months. It is also alleged that the accused could not make the payment within time, thereafter, he has done a settlement with the accused and the accused started repaying the friendly loan in installments. Thereafter, the accused in order to discharge his remaining liability of Rs.2,53,000/ issued a cheque bearing no.113821 dated 16.11.2015 drawn on Oriental Bank of Commerce, Swaroop Nagar, Delhi (Cheque in question Ex.CW1/1). It is also alleged that the complainant presented the said cheque in his bank, the same got dishonoured for the reason 'insufficient funds' vide return memo dated 20.11.2015.
20. In order to substantiate its claim, the complainant has brought on record the original cheque in question i.e, Ex.CW1/1. The close appraisal of the original cheque in question shows that the same has been issued by the accused Dharmender in favour of the complainant amounting to Rs.2,53,000/. The cheque in question bears the signature of the accused. The accused in the present case in his defence has admitted that the cheque in question bears his signatures. The complainant also brought on record the original return of memo i.e, Ex.CW/2 and from it transpires that the cheque in question has been dishonoured for want of "insufficient funds"
in the account of the accused. Complainant also brought on record the legal notice Ex.CW1/3 which has been addressed to the accused and the same has been served upon him through speed post vide postal receipt Ex.CW1/4. All the documents brought on record by the complainant have been unrebutted as the accused has failed to CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 9/16 lead any evidence to disprove the same.
21. Clearly from the documents on record, this court is of the considered opinion that the cheques in question Ex. CW1/1 has been issued by the accused in discharge of his legal enforcible liability.
22. In the present case, the accused has admitted that the cheques in question bears his signature. Therefore, once the accused admits that the cheque in question bears his signature and the cheque in question are drawn on a bank account maintained by him, a factual basis is established, to invoke the presumption of cheque having been issued in discharge of a legally sustainable liability and drawn for a good consideration arises by virtue of Section 118(a) read with Section 139 of NI Act. A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Sections 118(a) and 139 read as under:
118. Presumptions as to negotiable instruments "Until the contrary is proved, the following presumptions shall be made:
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration..";
139. Presumption in favour of holder--"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 in part, of any debt or other liability."
23. It is an established proposition of law that once the cheque relates to the account of the accused and he accepts and admits the CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 10/16 signatures on the said cheque, then initial presumption as contemplated under 139 NI Act has to be raised in favour of the complainant. It is a mandatory presumption though the accused is entitled to rebut the said presumption. In a catena of judgments, it has been laid down by the Hon'ble Apex court that such presumption in favour of the complainant cannot be rebutted by a mere plausible explanation but more than a plausible explanation by way of rebuttal evidence. Here I am guided by judgment of Hon'ble Supreme Court in M/s. Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518, The Hon'ble Supreme Court observed in para 11 as under: Para 11. "The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options.
He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 11/16 consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 12/16 118 and 139 of the Act. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue"
24. In my opinion, the accused has not succeeded in rebutting the presumption of legal liability or even probablizing his defence. In the present case, the accused has taken the defence that he has taken the loan amount of Rs.50,000/ from the complainant and the same has been paid by him to the complainant. The accused also at the time of notice of accusation under Sec. 251 of Cr.P.C. has taken the defence that he has issued two post dated blank cheques to the complainant at the time of availing the loan of Rs.50,000/ and the complainant in spite of receiving the loan amount has misused the blank cheques.
25. Thus, except the bald assertions of the accused that he has made repayment of sum of Rs.50000 loan amount and cheque in question has been misused by the complainant at the stage of framing of notice and during his examination under section 313 CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 13/16 Cr.P.C., not even an iota of evidence has been brought on record to support his defence. It is a settled law that the statement of accused under section 281 CrPC or under section 313 CrPC 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 witness, his statement under section 281 CrPC or under section 313 CrPC, cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that the explanation given by the accused, is truthful.
26. In the present case, the accused at the stage of recording of plea of defence, stated that the two blank cheques were issued by him to the complainant for availing the loan amount of Rs. 50000/ and same has not been returned by the complainant. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to crossexamination. His explanation has to be rejected as the accused did not appear in the witness box to dispel the presumption under section 118(a) NI Act read with section139 NI Act.
27. In the crossexamination of the complainant, ld. Counsel for the accused has put forth the suggestion to the complainant that he has not shown the source of his income and has not shown the loan amount in his IT return, and hence, he is not in a position to give loan of Rs.4 Lacs to the accused. This argument is devoid of any CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 14/16 merit as recently the Hon'ble Apex Court in case titled as Rohitbhai Jivanlal Patel vs. State of Gujrat and Anr. In Crl. Appeal no.508 of 2019 has held that it is not necessary that the complainant must disclose his source of income, rather the burden is upon the accused to rebut the presumption under section 118(a) NI Act read section with139 NI Act, which the accused in present case has miserably failed to rebut. There is no heavy burden on the complainant to the debt and complainant is not expected to prove the debt as in civil court.
28. Therefore, in my opinion, the accused has miserably failed in rebutting the presumption of legal liability even on the scale of preponderance of probabilities. The defence of the accused cannot be termed as a plausible defence.
29. The sheer lack of even an iota of material on record, to this effect, leads to the irresistible conclusion of the defence of the accused being sham and nothing but a complete lie.
30. Therefore, all factors, cumulatively seen, go on to show that the accused has miserably failed to probablize the defence set up by him with respect to the cheque amounting to Rs. 2,53,000/ (Ex.CW1/1). The presumption of legal liability under Section 118
(a) read with Section 139 of the NI Act has gone unrebutted. The complainant has successfully proved the basic ingredients of the offence under Section 138 of the NI Act.
31. Resultantly, the accused Dharmender S/o Sh. Shyam Singh CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 15/16 Chauhan stands convicted for the offence under Section 138 of the NI Act.
32. Put up for hearing on sentence for 09.12.2019.Digitally signed by RASHMI
Announced in open court GUPTA RASHMI Date:
GUPTA 2019.12.02
16:22:01
+0530
on 2nd Day of December, 2019
(Rashmi Gupta)
MM06, North District
Rohini Courts, Delhi/02.12.2019
CIS No 8764/16, Rajesh Jindal VS. Dharmender, U/s. 138 N.I. Act, 16/16