Delhi District Court
Narender Soorma vs . Amit Khanna on 19 March, 2018
NARENDER SOORMA VS. AMIT KHANNA
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
CC NO.7571/2016
PS : Jagatpuri
U/S 138 Negotiable Instruments Act
SH. NARENDER SOORMA ............. Complainant
VS.
SH. AMIT KHANNA ............. Accused
a) ID No. of the case : 02402R0074712012
b) Date of Institution : 15.03.2012
c) Name of complainant : Sh. Narender Soorma
S/o Sh. G.K. Kalra
R/o 158, Bank Enclave,
Delhi - 110092.
d) Name & address of accused : Amit Khanna
S/o Late K.C. Gupta
R/o B247, 2nd Floor,
Priyadarshni Vihar,
Delhi - 110092.
Also at
Administrator Officer
Apollo Hospital,
New Delhi.
Also at
43, Guru Angad Nagar
Extn., Laxmi Nagar,
Delhi110092.
e) The offence complained of : U/S 138 N. I. Act
f) The plea of accused : Pleaded not guilty
g) Order reserved on : Not reserved
CC NO.7571/16, PS JAGATPURI Page 1/13
NARENDER SOORMA VS. AMIT KHANNA
h) Final order : Conviction
i) The date of pronouncement : 19.03.2018
JUDGEMENT
1. The complainant has filed the complaint under section 200 Code of Criminal Procedure alleging the commission of the offence under section 138 of Negotiable Instruments Act (NI Act).
2. It is stated by the complainant in the complaint that the complainant on account of friendly relations with the accused on the repeated request gave a loan of Rs.6,75,000/ to the accused in cash. The accused towards the discharge of his liability of the said loan issued a post dated cheque of Rs.6,75,000/ drawn on PNB with the assurance that the said cheque would be honoured on presentation. The complainant on the due date i.e. date mentioned on the body of the cheque, presented the said cheque to his banker but the same was returned vide memo dated 29.12.2012 with the reason "insufficient funds". The complainant issued a legal notice dated 24.01.13 to the accused which was duly served. However, the accused in spite of receipt of the said legal notice did not make the payment of the cheque amount within 15 days and thereby the accused committed the offence U/S 138 N.I. Act and hence the present complaint.
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3. Before issuing the summons to the accused, the complainant examined himself by way of affidavit as CW1. In the affidavit, the complainant deposed substantially what has been averred in the complaint. No other witness than the complainant has been examined at preliminary stage.
4. The accused was summon vide order dated 01.09.2016. Notice under section 251 of Code of Criminal Procedure was given to the accused to which the accused pleaded not guilty and in defence the accused stated that he would tell his defence in his application U/S 145(2) N.I. Act.
5. In the application U/S 145(2) N.I. Act, the accused stated that the complainant was stranger to the accused and that the accused has been falsely implicated by the complainant. The accused also stated that the accused had never received any amount from the complainant or handed over any cheque in discharge of any of the liability of the accused to the complainant.
6. The defence with respect to cheque in question of the accused was that the accused issued the cheque in question to one Ravi Arora for a sum of Rs.75,000/ on 15.11.12 with the understanding that the accused within two months would pay the said amount to Ravi Arora and would receive back the cheque from him. The accused CC NO.7571/16, PS JAGATPURI Page 3/13 NARENDER SOORMA VS. AMIT KHANNA has expressed his apprehension that it was Ravi Arora who with a view to create false evidence misused the said cheque and handed over same to the complainant.
7. Vide order dated 11.04.17 application U/S 145(2) N.I. Act of the accused was allowed. The complainant was crossexamined and thereafter the accused was examined U/S 313 Cr.P.C where in all the incriminating evidence which had come on record was stated to the accused and asked for his explanation. In the statement U/S 313 Cr.P.C, the accused inter alia stated that the cheque which is on record was blank which was handed over by the accused to Ravi Arora. The accused did not know how the said cheque came into the possession of the complainant. The accused admitted that he had received the legal notice issued by the complainant to which the accused had replied.
8. In defence, the accused had examined himself as DW1. No other witness in defence other than the accused has been examined and the defence evidence was closed.
9. I have heard the arguments and perused the record of the case and also the written submission filed by the complainant.
10.The offence punishable under Section 138 of Negotiable Instruments Act, is provided as under:
CC NO.7571/16, PS JAGATPURI Page 4/13NARENDER SOORMA VS. AMIT KHANNA "138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from CC NO.7571/16, PS JAGATPURI Page 5/13 NARENDER SOORMA VS. AMIT KHANNA the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
11.The Supreme Court in 'Kusum Ignots & Alloys Ltd. v. Pennar Peterson Securities Ltd. (2000) 2 SCC 745' explained the ingredients of the offence under Section 138 of the Negotiable Instruments as under:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because 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;
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(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such 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."
12.In the context of prosecution for offence under Section 138 Negotiable Instruments Act, the provisions contained in Section 118 (to the extent relevant here) and Section 139 Negotiable Instruments Act are also relevant and may be taken note of 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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
..............
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(g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course:
............
"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".
13. The trial for an offence U/S 138 N.I. act begins with two presumptions are in favour of the complainant (i) the cheque qua which the complaint has been preferred was issued for a valid consideration in view of Section 118 N.I. Act (ii) that the cheque with respect to which a complaint has been filed was issued in discharge of a legal debt or liability of the accused. The accused unless and until rebuts the presumption with which the complaint has begun, it has to be deemed that the accused has committed offence U/S 138 N.I. Act if the other ingredients of the said section of N.I. Act are satisfied. It is only when the accused by cross examining the complainant and the other witnesses rebuts the initial presumption and the burden which is on the accused because of the legal presumption which is in favour of the complainant; the complainant would be obligated to prove that the cheque for the issuance of the cheque, there was a consideration and that the accused had issued the cheque for discharge of legal debt or CC NO.7571/16, PS JAGATPURI Page 8/13 NARENDER SOORMA VS. AMIT KHANNA liability.
14. It is agreed by the counsel for the accused that the accused is stranger to the complainant and was not friend of the complainant. In the crossexamination of the complainant, it has been deposed to by the complainant "I do not know the other family members of the accused. I do not have any document like photographs that I know the accused". Even if two persons are close friends, there is no presumption of any kind that both friends would know each and every detail about their family members; that they would know parents' name, childrens' name etc. Two persons can be close friends in spite of the fact that both are unaware about many facts pertaining to each other and every family members. Therefore, simply because the complainant has admitted in the cross examination that the complainant did not know about other family members of the accused, it has not been disproved by the accused that the complainant was not a friend or a known of the accused also on the basis of the crossexamination it is not proved (in view of Section 3 of Evidence Act) that the accused is a stranger to the complainant.
15. It has also been argued by the counsel for the accused that in the body of the complaint, the complainant did not mention the date of the cheque from where the accused had arranged the money which CC NO.7571/16, PS JAGATPURI Page 9/13 NARENDER SOORMA VS. AMIT KHANNA was paid to the accused, also in the ITR of the complainant, the complainant did not mention about the payment of loan to the accused. In the opinion of the Court all the facts which have been elicited in the crossexamination of the complainant does not rebut the initial presumption U/S 118 & 139 N.I. Act. It may also be mentioned that in a complaint U/S 138 N.I. Act U/S 200 Cr.P.C the same need not be the encyclopedia of each conceivable fact.
16.The complainant is only obligated to mention that he had received the cheque in discharge of legal debt or liability which on presentation was dishonoured. The complainant sent a legal notice as per Section 138 N.I. Act and the accused in spite of receipt of the said notice did not make the payment. The fact that the complainant did not mention that the complainant had arranged the money from his family members for giving loan to the accused does not rebut at its own that the complainant did not pay the loan amount of Rs.6,75,000/ to the accused. Even the fact that the date and the other details have not been mentioned in the body of the complaint does not give any kind of advantage to the accused when on the body of the cheque the date has been mentioned.
17.The counsel for the accused has not brought to the notice of the Court any relevant provision of or any law by which the complainant is obligated to mention about any friendly loan which CC NO.7571/16, PS JAGATPURI Page 10/13 NARENDER SOORMA VS. AMIT KHANNA is given by the complainant to the accused in his ITR.
18.From the entire crossexamination, the Court is unable to come to the conclusion that the accused has been successful in rebutting the initial presumption which is against the accused implying thereby that any burden was shifted to the complainant to prove in affirmative that the cheque was not issued by the accused to the complainant.
19.Now, coming to the defence of the accused that the cheque in question was given by the accused to one Ravi Arora. Before proceeding further, it may be mentioned that a cheque is a negotiable instrument i.e. if a person signs a cheque and does not fulfil any other particulars in the cheque and hands over to any person that person can negotiate the cheque i.e. hand over the cheque to any person and even in such a situation if the subsequent person is the 'holder in due course', even then complaint U/S 138 N.I. Act is maintainable. From the material on record, it is not clear that the accused had given any cheque to Ravi Arora and if accused had given any cheque to Ravi Arora, that cheque was the same cheque with respect to which the present complaint has been filed or it was some other cheque.
20.In reply to the legal notice of the complainant Ex.CW1/5 it has CC NO.7571/16, PS JAGATPURI Page 11/13 NARENDER SOORMA VS. AMIT KHANNA been mentioned, "there was cordial relations between my client and Ravi Arora and also some financial transactions. The said cheque of Rs.75,000/ was given to Ravi Arora on 15.12.12". In the crossexamination of the complainant from the suggestion which was given to the complainant, it appears that the cheque which was allegedly issued by the accused to Ravi Arora or for a sum of Rs.75,000/, however from Ex.CW1/1 i.e. cheque in question, it does not appear that the said cheque was initially for Rs.75,000/ or that the complainant has altered the said cheque in any manner. From the material on record i.e. Ex.CW1/1 the cross examination of the complainant and the contents of reply to notice Ex.CW1/5, it does not appear that the cheque on record was the same cheque for Rs.75,000/ which might have been given by the accused to Ravi Arora. Be that as it may. If the defence of the accused is that the accused had given any cheque in question to Ravi Arora then burden of proof as per Section 101 of Evidence Act lie on the accused to discharge the onus by examining Ravi Arora as witness. In fact, at the first place that the accused has not discharged the burden that the accused had in fact issued the cheque in question to Satish Arora, it has to be assumed that the defence taken by the accused regarding issuing the cheque in question to Ravi Arora is not true. And second when the material CC NO.7571/16, PS JAGATPURI Page 12/13 NARENDER SOORMA VS. AMIT KHANNA facts for the offence U/S 138 N.I. Act has been proved by the complainant and when the accused has not been able to dislodge the initial presumption U/ 118 & 139 N.I. Act, the Court is of the opinion that the complainant has proved his case beyond reasonable doubts; that the accused has committed the offence U/S 138 N.I. Act. Accordingly, accused is hereby convicted for the offence U/ 138 N.I. Act. VIJAY Digitally signed by VIJAY KUMAR JHA KUMAR Date: 2018.03.19 JHA 17:16:21 +0530 Dictated & Announced in Open Court (VIJAY KUMAR JHA) on 19.03.2018 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi CC NO.7571/16, PS JAGATPURI Page 13/13