Delhi District Court
Also In The Case Of K. Bhaskaran vs . Sankaran Vaidhyan Balan 1999 (4) on 18 April, 2018
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CC No. 5002215/2016
Sandeep Sehrawat
S/o Sh. Satya Pal Singh
R/o, H No. L-145, Block -L, Gali No. 9,
Behind Aramex Office,
Mahipal Pur Extension, Delhi-37 ............Complainant
Versus
Umesh Yadav
S/o Sh. Jaswant Singh
R/o, L- 94A, Plot No. 267,
Mahipal Pur Extension, Delhi-37
Also At:
L- 266, Street No. 9
Mahipal Pur Extension, Delhi-37 .............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 30.06.2016
(4) Date of conclusion of arguments: 20.03.2018
(5) Date of Final Order : 18.04.2018
(6) Final Order : Convicted
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 1 of 11
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that accused is his neighbour and well known to him. It is alleged that accused used to take financial help from complainant from time to time. Complainant advanced friendly loan of Rs. 2,50,000/- and of Rs. 1,00,000/- on 14.12.2015 and 25.01.2016 respectively to accused to meet domestic expenses, i.e. total loan amount of Rs. 3,50,000/-. The accused also executed receipt dated 25.01.2016 for the total loan amount. The accused gave one cheque of Rs. 3,50,000/- i.e. cheque in question dated 11.05.2016 drawn on HDFC Bank, Vasant Vihar, New Delhi, to complainant in satisfaction of loan, with an assurance of its encashment. When the complainant presented the cheque in his account maintained with Andhra Bank, Najafgarh, Delhi, the said cheque was returned vide bank return memo dated 16.05.2016 with the remarks "Payment Stopped by the Drawer". Thereafter, complainant served a legal notice dated 30.05.2016 upon the accused through his counsel demanding the said amount.
Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record, original cheque bearing no. 000003 of Rs. 3,50,000/-, drawn on HDFC Bank, Vasant Vihar, New Delhi as Ex. CW-1/1, cheque returning memo dated 16.05.2016 as Ex. CW-1/2, legal demand notice dated 30.05.2016 as Ex. CW-1/3, postal receipts of speed posts and registered post as Ex. CW-1/4 to Ex. CW-1/7, Regd. AD card as Ex. CW-1/8, receipt dated 25.01.2016 as Ex. CW-1/9 and Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 2 of 11 tracking report of delivery of speed post and registered post as Mark-A (colly)
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 27.09.2016 to which he pleaded not guilty and claimed trial. Accused stated that he had not taken any loan whatsoever from the complainant. He admitted his signatures on the cheque in question, however stated that the same were not filled in by him or by someone on his instructions. He stated that when he signed the receipt dated 25.01.2016, the same was a blank paper, which he gave to one Deepak Sehrawat and not the complainant.
5. The accused moved an application to cross-examine the complainant. Complainant as CW-1 was duly cross examined by the accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused stated that he had never taken any loan from the complainant. He stated that he had taken a loan of Rs. 15,000/- from one Deepak Sehrawat and cheque in question was given as a blank signed instrument alongwith a blank signed paper to said Deepak Sehrawat. The receipt dated 25.01.2016 was made on the same blank signed paper. He denied receipt of legal notice.
6. Accused preferred to lead evidence in his defence and had examined himself as DW-1. He also examined his cousin brother as DW-2. Both the witnesses were cross-examined at length by counsel for complainant.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 3 of 11 complainant before the court. The testimony of CW-1 is corroborated by the receipt dated 25.01.2016. It was argued that accused admitted his signatures on the cheque in his plea of defence which was recorded at the time of framing of notice under Section 251 Cr.P.C, in his statement under section 313 Cr.P.C, as well in his examination-in-chief as DW-1. He further argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act. He relied upon R. Mohan v. A.K. Vijay Kumar, AIR 2012 SC (Supp) 771, Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], T. Vasanthakumar v. Vijayakumari AIR 2015 SC 2240 and K.N. Beena v. Muniyappan, AIR 2001 SC 2895.
8. Per contra, Ld Counsel on behalf of the accused argued that accused never took any loan from the complainant. He reiterated the submissions made by accused in his statement under Section 313 Cr.P.C. regarding availing loan of Rs. 15,000/- from one Deepak Sehrawat and giving him cheque in question as a blank signed instrument alongwith a blank signed paper, on which the receipt dated 25.01.2016 was made. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case against accused beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act. He relied upon M.S. Narayana Menon v. State of Kerela and Anr. (2006) 6 SCC 39 and Kulvinder Singh v. Kafeel Ahmed 2013 II AD (Delhi) 81.
9. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 4 of 11
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. 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) 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.
Section 118 of the N.I Act provides :
"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, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"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".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 5 of 11 rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C. and in his statement U/s 313 Cr.P.C and also in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "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."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some 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. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 6 of 11
14. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him after he had advanced loan of Rs. 3,50,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record. The complainant also placed on record a document in vernacular Ex. CW-1/9, which is a receipt dated 25.01.2016, executed by accused whereby he admitted taking loan of Rs. 3,50,000/- from the complainant and acknowledged his liability for said amount towards the complainant. The receipt was signed by accused as well as two witnesses and also bore photograph of accused.
15. It is the case of the accused that he had never taken any loan from the complainant. The accused stated in his examination-in-chief that he was in need of Rs. 15,000/-. One Deepak Sehrawat, his schoolmate agreed to advance accused said loan on condition of accused giving him a blank signed cheque, photograph and a blank signed paper. The accused gave all the documents to Deepak in presence of his cousin Mahesh Yadav and loan was given to him on 4th, 5th or 6th April, 2016. Accused repaid Rs. 20,000/- to Deepak after 10-12 days of taking loan, however Deepak demanded more amount and refused to return the documents. The accused issued stop payment instructions to his bank for the cheque in question. DW-2, Mahesh Yadav, cousin brother of accused also corroborated the above testimony and stated accused called Deepak to office of DW-2 and that Deepak gave Rs. 15,000/- to accused and accused gave acheque and blank signed paper to Deepak. He also stated that accused repaid Rs. 20,000/- to Deepak in his presence and Deepak promised to return the documents in a day or two as same were kept at his house. Based on above testimonies, it was argued on behalf of accused that the blank signed cheque and blank signed paper have been misused by the complainant in collusion with said Deepak Sehrawat by filling in contents of the cheque and making the blank paper into a receipt Ex. CW-1/9. It is also averred that said receipt in a false and fabricated document, the photograph of accused and the revenue stamp on said receipt do not bear signature of accused and neither of the witnesses to said receipt are known to accused.
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 7 of 11
16. However, perusal of record reveals that the version of accused, regarding loan transaction with Deepak Sehrawat is not supported by any document on record, regarding grant of loan of Rs. 15,000/- or repayment of Rs. 20,000/- for the same. DW-2 also admitted in his cross-examination that no document was prepared, at time of giving of loan by Deepak or at time of repayment of loan. The same erodes credibility of the version of accused. Moreover, argument of accused regarding misuse of documents, is not tenable as he admitted in his cross- examination that he had not filed any complaint or case either against the complainant or said Deepak Sehrawat for misuse of cheque. Accused also admitted that he had not filed any case or complaint regarding fabrication of receipt Ex. CW-1/9. Even otherwise, the accused could not produce any material in evidence to cast doubt on the receipt Ex. CW-1/9. He has admitted his signature on the same and mere averment that the photograph and revenue stamp do not bear his signature or that the witnesses were not known to accused personally, does not cast doubt on the execution of the document, when accused himself did not take any action against the alleged fabrication of the documents. Mere issuance of stop payment instructions to bank for the cheque, is not sufficient to rebut the statutory presumptions.
17. Regarding the averment of the cheque being a blank signed one, once the accused has admitted his signatures on the cheque he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. Otherwise also it has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 8 of 11 "no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
18. Ld. Counsel for accused also argued that though complainant testified that he had earlier given Rs. 10,000/- and Rs. 20,000/- to the accused, no record of the same was produced. It was also argued that though in his examination-in- chief by affidavit, complainant stated that accused required loan to meet expenses of domestic requirements, in his cross-examination he took contradictory stand and stated that accused did not demand loan to meet household expenses. This court is of the view that omission to produce record regarding previous transactions between parties is not material in present case under Section 138 of the Act. Moreover no such record of previous transactions was called for by the accused in cross-examination of complainant. Regarding the inconsistency in testimony of complainant regarding reason for demand of loan by accused, the same is a minor inconsistency and not significant in light of written acknowledgement of debt vide receipt Ex. CW-1/9.
19. The accused has also alleged that legal demand notice under section 138 of the Act was not received by him. However it is worth noting that the address of the accused as mentioned in legal demand notice is the same address as that in his bail bond, notice under section 251 and statement of accused under section 313 Cr.P.C, i.e. L- 94A, Plot No. 267, Mahipal Pur Extension, Delhi-37 and also at L- 266, Street No. 9, Mahipal Pur Extension, Delhi-37. Moreover the accused has not brought on record any evidence to show that he was not residing at above addresses at time of legal notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 9 of 11 correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service.
20. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
21. It is also argued on behalf of accused that though complainant stated in his testimony that he sourced funds for present loan from his father, he has failed to examine his father as a witness. Ld. Counsel for accused also submitted that neither of the two witnesses to the receipt Ex. CW-1/9 were examined in evidence by complainant. However, regarding sources of funds, complainant in his examination-in-chief stated that he borrowed the money for present loan from his father. He stated that he works in transport business with his father and his father earns about Rs. 1,90,000/- per month from the business. Therefore the complainant sufficiently disclosed his sources of funds. Moreover mere omission to examine witnesses in corroboration of case of complainant, is inconsequential. The Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017 held:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 10 of 11 his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
In present case, the burden was on the accused to prove his case as set out in answer to the notice under Section 251 Cr.P.C. However as discussed above accused has not been able to prove his case regarding denial of present loan transaction and misuse of cheque in question and blank signed paper by complainant. No evidence in support of his plea has been placed on record and the statutory presumption under Section 139 of the Act has not been rebutted.
22. The judgments relied upon by the accused are distinguishable on facts and proposition of law laid down therein and hence, are not applicable to the case at hand. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
23. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
24. Let the convict be heard on quantum of sentence.
25. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date: 2018.04.18
16:16:16 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 18th April 2018 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Sandeep Sehrawat v. Umesh Yadav CC No. 5002215/2016 Page no. 11 of 11