Delhi District Court
Gurdayal vs . Ram Sewak 1/9 on 23 July, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. 02404R0291132010
CC No. 12010/1/10
Sh. Gurdayal
S/o Late Sh. Panna Lal,
R/o G428, Mangol Puri,
Delhi110083.
............Complainant
V/s
Sh. Ram Sewak,
S/o Sh. Brij Lal,
R/o G703, Near Hanuman Mandir,
Mangol Puri, Delhi110083.
...............Accused
JUDGMENT
(1)Name of complainant Sh. Gurdayal
and parentage address S/o Late Sh. Panna Lal,
R/o G428,Mangol Puri,
Delhi110083.
(2) Name of accused Sh. Ram Sewak
and parentage address S/o Sh. Brij Lal,
R/o G703, Near Hanuman
Mandir, Mangol Puri,
Delhi110083.
(3)Offence of complained of or proved: 138 N. I Act
(4) Plea of accused: Pleaded not guilty
(5)Date of institution of case: 24.11.2010
(6)Date of reserve of order: 23.07.13
(7)Date of Final Order: 23.07.13
(8) Final Order: Conviction
Gurdayal Vs. Ram Sewak 1/9
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The present complaint is filed Under Section 138 of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that accused was in friendly terms with the complainant for the last so many years and accused used to take financial assistance from the complainant. As the complainant was in good relations with the accused, he used to help the accused financially and in total the accused had taken sum of Rs. 2,35,700/ from the complainant. In liquidation of his liability to pay Rs. 2,35,000/ to the complainant, accused issued three cheques, one cheque of Rs. 44,200/, second cheque of Rs. 44,000/ & third cheque of Rs. 1,47,500/ bearing no. 266387, 266388 & 266390 respectively in favour of complainant. When the aforesaid cheques were presented in bank for its encashment, the same returned dishonored for the reasons "Insufficient funds" vide cheque returning memos dated 05.10.10. Thereafter, complainant contacted the accused and apprised him about the fate of the cheques issued by him but accused instead of making the payment of cheques amount started lingering on the matter on or other pretext, however lastly the accused clearly refused to make the payment and threatened the complainant for dire consequences. In this regard complainant made a written complaint with the SHO, PS Mangol Puri, Delhi. Thereafter complainant sent a legal notice dated 16.10.10 to the accused but instead of making the payment of cheques amount he sent a totally vague, false and baseless reply to the said notice. Thereafter complainant finally has filed the present complaint case with the submission that accused be summoned, trial and punished accordingly to law.
In his pre summoning evidence, complainant has examined himself on affidavit as Ex.CW1/A. He reiterated the contents of complaint and placed on record the original cheque bearing no. 266387 dated 22.08.10 amounting to Rs. 44,200/ as Ex.CW1/1, cheque bearing no. 266388 dated 23.08.10 amounting to Rs. 44,000/ as Ex.CW1/2, & cheque bearing no. 266390 dated 20.09.10 amounting to Gurdayal Vs. Ram Sewak 2/9 Rs. 1,47,500/ as Ex.CW1/3, all the cheques drawn on Allahabad Bank, New Delhi, cheque returning memos dated 05.10.10 as Ex.CW1/4, Ex.CW1/5 & Ex.CW1/6 respectively wherein it has been stated that cheques in question were dishonoured due to "Insufficient Funds", Copy of complaint given by complainant to the SHO, PS Mangol Puri as Ex.CW1/7, legal demand notice dated 16.10.10 as Ex. CW1/8A, Reply to the legal notice as Ex.CW1/8, UPC & postal receipt as Ex.CW1/10 & acknowledgement card as Ex.CW1/9.
Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which he stated that:
"The cheques in question pertains to my bank account. It bears my signature. The particulars i.e, name of the complainant, date and amount have been filled in by me. The cheques in quetion were given as security for the payment of committee".
Presummoning evidence of the complainant was treated as post notice complainant evidence as per the guidelines laid down by Hon'ble Delhi High Court, in case titled as Rajesh Aggarwal vs State & Anr. 2010, VII AD, (Delhi) 576.
Pursuant to allowance of application u/s 145 (2) NI Act, the complainant was recalled for crossexamination. Accused could not demolish the stand of the complainant in his cross examination.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
Gurdayal Vs. Ram Sewak 3/9(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118
(a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact ".
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the Gurdayal Vs. Ram Sewak 4/9 presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating circumstances were put to the accused wherein accused stated that:
"I have never taken any loan from the complainant. The aforesaid cheques Gurdayal Vs. Ram Sewak 5/9 were given to the complainant at the request of the complainant as the complainant wanted to have some property deal and for the same, he wanted to show these cheques to somebody. I had good relations with the complainant, so on his persuasions, I gave the aforesaid three cheques filled in all respect to the complainant which were to be returned to me as per our understanding and they were not meant for any presentation before the bank. I did not know of the dishonouring as these cheque were not meant for presentation, but when the complainant made the complaint to PS Mangol Puri, I came to know that the complainant has presented these cheques and they were dishonoured. I have received the legal notice. I do not have any liability towards the complainant".
Accused did not examine any witness in his defence evidence, therefore DE was closed vide order dated 02.07.13.
Oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
It is submitted by Ld. counsel for complainant that the signatures has been admitted by the accused on the cheques in question in his notice U/S 251 Cr.P.C. Relations with the complainant has been admitted by the accused in his reply to legal notice along with submission that he has taken loan from complainant but the loan amount has been disputed. It is further submitted by Ld. counsel that the matter was settled in mediation by accused and as per mediation order, three installments of Rs. 5000/ each has already been paid, therefore there is no iota of doubt regarding the liability of accused.
To this, Ld. counsel for accused has submitted that no written document has been executed towards the loan amount and the complainant has failed to show the source of his income as the loan of Rs. 2,35,700/ has been alleged by him and the cheque was given as security.
Entire record perused.
Gurdayal Vs. Ram Sewak 6/9Accused has taken contradictory stands in his notice U/s 251 Cr.P.C. & in his statement U/S 313 Cr.P.C. He has stated in his notice U/S 251 Cr.P.C. that he has given the cheques in question as security for the payment of committee and the same bear his signatures and the name of the complainant, date and amount was also filled by him. To this, law is very clear. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: "Section 20 of N.I At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and the extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357:
(2006) CrLJ3140: (2007) 6 Karn LJ 237 (Kant).
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475, where it was held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of section 87 merely by writing details on cheque".
On the other hand, accused has taken another defence by stating in his statement U/s 313 Cr.P.C. that the cheques in question were given to the complainant at his request as complainant wanted to have some property deal and for the same, he wanted to show these cheques to somebody and as he had good relations with the complainant, he gave the cheques in question filled in all respect to the complainant which were to be returned back to him and the same were not meant for any presentation before the bank.
Gurdayal Vs. Ram Sewak 7/9Accused has also admitted in his notice U/S 251 Cr.P.C. that the cheque in question bears his signatures. Reference has been made to Judgment of Apex Court in Rangappa vs Sri 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. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act".
After perusal of entire record and in view of the above, this court of the considered opinion that accused has not rebutted the presumption in favour of complainant as he has taken contradictory defences in his trial and hence, his version is not believable in toto. Therefore, complainant has proved his case beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is Gurdayal Vs. Ram Sewak 8/9 preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
As the complainant has proved its case beyond reasonable doubt, therefore, accused is being covicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT (SHEFALI BARNALA TANDON)
ON 23.07.13. METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Gurdayal Vs. Ram Sewak 9/9
IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
Unique ID No. 02404R0291132010
CC No. 12010/1/10
Gurdayal Vs. Ram Sewak
U/s. 138 Negotiable Instrument Act
24.07.13
ORDER ON SENTENCE
Present: Complainant with Ld. counsel Sh. Darshan Singh.
Convict with Ld. counsel Sh. Jitendra Kumar.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is having family consisting of three unmarried children and wife. It is further submitted by Ld. counsel that execution against the civil decree is still pending before the court of Sh. Ashish Aggarwal in lieu of the cheque in question and convict is first time offender, therefore lenient view may be taken.
Ld. Counsel for complainant has submitted that the matter pertains to the year 2010 and relates to the loan transaction of Rs. 2,35,700/ and the convict has defrauded the complainant and he has also made mockery of judicial system as he has admitted his liability in mediation settlement and he has also repaid three installments of Rs. 5000/ each and thereafter, he resiled from his settlement and claimed trial.
I have heard the submissions and carefully perused the record. Complainant regarding present cheques in question is pending since 2010 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2010 and cheque bouncing cases are on high rises and releasing the accused on probation would not have deterrent effect in the society. The convict has also made a settlement in mediation and also repaid Rs. 15000/ but later on he has resiled Gurdayal Vs. Ram Sewak 10/9 from his statement and claimed trial. He has taken contradictory stands in his trial just to prolong the trial.
Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs. 2,80,000/ (Rs. Two Lacs Eighty Thousands Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of two months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order.
Heard. Perused.
Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 30,000/ with surety of like amount. Requisite bail bond furnished and accepted till 24.08.13.
Copy of this order along with judgment be given to the accused free of cost. Bail bonds be put up on 24.08.13 File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon)
court on 24.07.13 MM (N/W)/Rohini Courts, Delhi.
Gurdayal Vs. Ram Sewak 11/9