Delhi District Court
Cc No.11/11 Rakesh Gupta vs . Rajpal Page No. 1 Of Pages 11 on 16 November, 2012
CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 1 of Pages 11
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 11/11
Unique ID No. 02402R088632011
PS. Preet Vihar
Sh. Rakesh Gupta,
S/o Sh. Mahender Pal Gupta,
R/o 56A/2, Jawala Nagar,
Church Road, Shahdara,
Delhi ......... Complainant.
Versus
Rajpal,
S/o Sh. Bhagirath,
R/o 198/7, Shri Ram Nagar,
G.T. Roadd, Shahdara,
Delhi ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 09.03.2011
Plea of Accused : Not guilty
Complaint filed on : 18.03.2011
Final Arguments heard & Concluded on : 26.10.2012
Date of decision of the case : 16.11.2012
Final order : Conviction
CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 2 of Pages 11
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Sh. Rakesh Gupta against the accused Rajpal.
2. The facts in brief necessary for the disposal of the present case are that, complainant was / is a petty trader dealing in wires, copper, brass etc. The complainant delivered goods, cable, wire to the accused worth Rs.85,080/but after much persuasion the accused only paid a sum of Rs.40,000/ to the complainant. Thereafter the accused could not pay any amount to the complainant and after number of talks he agreed to pay Rs. 15,000/ instead of balance of Rs.45,080/ which was accepted by the complainant as well. On that accused issued a cheque bearing no. 160915 dated 31.01.2011 for the sum of Rs.15,000/ drawn on Andhra Bank, Vishwas Nagar branch to the complainant but on presentation the said cheque was returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memo dated 07.02.2011. Thereafter a legal notice was sent to the accused dated 19.02.2011 which was sent on 21.02.2011 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 3 of Pages 11 counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 03.08.2011 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 31.10.2011 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited original cheque bearing No. 160915 as Ex. CW1/A, the cheque returning memo is Ex. CW1/B, the legal notice of demand dated 19.02.2011 is exhibited as Ex. CW1/C, The original receipts of registered post is Ex. CW1/D. Thereafter, the complainant evidence was closed at request.
5. After that on 21.03.2012 the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated the cheque in question was given to the complainant as advance payment to supply 10 pair bundles of PVC wire but the complainant did not supply the same to him due to sudden rise in market price of those goods, due to which he suffered penalty from MTNL. It is further stated by him that he had got dishonored the cheque in question as no goods were supplied by the complainant to him. Thereafter the case was CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 4 of Pages 11 fixed for Defence evidence. The accused examined himself as DW1. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 5 of Pages 11 If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. In the present matter the accused has accepted the issuance of the cheque in favour of the complainant, he also accepted the receipt of legal notice. It is also accepted by him that all the particulars on the cheque were filled up by him in his own handwriting. He has not disputed the presentation of the cheque and its dishonor within the period of its validity. He also accepted that he has not paid the cheque amount even after receipt of the legal notice. The only defence raised by him is that the cheque in question was given as advance security, since the complainant did not supply the wires to him, therefore he was not liable to make payment in respect of the cheque. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
09. It is submitted by the CW1 that the cheque in question was issued by the accused to discharge his liability.
10. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 6 of Pages 11
11. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
12. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act.
13. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, 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 this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance under which the cheques 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 cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 7 of Pages 11 presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
14. Similarly in the present case it was for the accused to prove why he did not write a letter to the complainant for return of the cheque in question. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a transaction he could not have rebutted the presumption u/s 139 NI Act. It was for the accused to have protested and asked the complainant to return the cheque and if still cheque was not returned he would have served a notice as complainant.
15. Therefore after the establishment of the fact that the cheque was issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence and not by mere plea taken in the statement of the accused recorded under section 313 r.w section 281 of Cr.P.C. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in Birender Singh V. state (NCT of Delhi) 2008(1)JCC (NI) 15).
16. In a similar case, Jose Vs. P.C. Joy 2008 (4) RCR (Crl) 251( Kerala HC), it was submitted by the accused that the CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 8 of Pages 11 cheque in question was given by the accused to the complainant as a security. Though the liability was settled as evidenced by Ex. D1 & Ex. D1(a) the cheque was not returned, inspite of requests. Therefore a stop memo was issued to the bank by the accused. He also gave a criminal complaint against the complainant which was taken on file as C.M.P 281/01 ( Ex. D2).
17. On these cogent evidences and the fact of issuing stop memo to the bank and filling a criminal complaint against the complainant the presumption under NI Act stood rebutted. However in the present case there is no cogent evidence whatsoever has been adduced by the accused to support his plea that the cheque in question was given to the complainant as advance security. No stop memo has been issued by him to his bank. He has not taken any other legal remedy against complainant. Infact in his cross examination it was submitted by the accused that he did not made any complaint against the complainant. Thus this bald plea of the accused having not been substantiated by any cogent, convincing and clear evidence would not be sufficient to rebut the presumption of law.
18. The accused miserable failed to prove that he had placed any order with the complainant and for which the cheque in question was given as advance security as the accused failed to bring any document on record in evidence to show that he had received any such order from MTNL as alleged by him. Hence this defence of the accused remain not proved. Infact after final CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 9 of Pages 11 arguments certain documents are filed on record by the complainant showing the reply to the RTI made by the complainant wherein it was stated by the GM, MTNL that no PVC cable or any other material has been ordered / purchased from M/s Raj Trading Company, Shahdara w.e.f November 2010 to January 2011. On the basis of this document it is argued that Raj Trading Company which is admittedly the firm of the accused had not received any order from the MTNL for supply of wire. This document being not exhibited / proved before the Court, can not be relied upon. However it was upon the accused to prove that he had received any such order and for which he placed an order with the complainant after giving the cheque in question as advance security but the accused has miserable failed to bring any document on record to prove that. It is further contended by the Defence Counsel that it is admitted by the complainant that the scrap was in his custody, then how the accused became liable for the same. Since goods allegedly purchased by them remain in the custody of the complainant only. Thus contention is not significant enough to rebut the presumption of law which has arisen in the favour of the complainant. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favor of the complainant and the same can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. A fact is said to be proved when its existence is directly CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 10 of Pages 11 established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.
19. The counsel for the accused cited the decision of the Supreme court in his favour titled as Krishna Janardhan Bhat v. Dattataraya G. Hegde (2008) 4 SCC 54, however the ratio of this case that existence of legally recoverable debt is not a matter of presumption under section 139 of the NI Act, has been overruled by the Hon'ble Supreme Court itself in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench Judgement) where in it was held:
We are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.
20. Thus from the above stated discussion it is clear that the accused has failed to rebut the presumptions U/s 118 (b) and 139 of Negotiable Instruments Act.
21. Considering the entire evidence on record, it stands duly proved that the cheque in question which is CW1/A was issued and drawn in discharge of legal liability of the accused and for consideration.
CC No.11/11 RAKESH GUPTA Vs. RAJPAL page no. 11 of Pages 11
22. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Rajpal, S/o Sh. Bhagirath, R/o 198/7, Shri Ram Nagar, G.T. Roadd, Shahdara, Delhi stands convicted of the offence u/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the open court today i.e. 16.11.2012 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.11.2012 Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:16.11.2012