Delhi District Court
In The Case Titled Goa Plast Pvt. Ltd. vs . Chico Ursula D'Souza 2003 on 20 December, 2013
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IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
Veer Singh
VS
Satpal Singh
CC NO. 20/12
PS: Palam Village
U/S: 138 N.I. Act
Date of Institution: 29.05.2012
Name of the Complainant Veer Singh s/o Late Sh. S. Gokul
Singh, r/o RZ 110, Indra Park
Colony, Uttam Nagar, New
Delhi110059.
Name and address of accused Satpal Singh s/o Late Bishan
Singh, r/o WZ 234 A, Gali No. 6,
Sadh Nagar, Palam Colony, New
Delhi110045.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 20.12.2013
Date of Institution of case: 29.05.2012
Date of hearing final arguments: 10.12.2013
Date of decision of the case: 20.12.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgement, I shall decide the complaint case u/s 138 Negotiable Instruments Act, 1881 (as amended upto date) filed 2 by the complainant.
2. The facts in brief necessary for the disposal of the present case are that the complainant is resident of Delhi and engaged in the business of Readymade Garments and accused is also resident of Delhi. Accused is known to the complainant as a friend. In the month of August, 2010 the accused approached the complainant and requested the complainant to lend Rs. 30,000/ as a friendly loan as the accused was in urgent need of money at that time. The accused assured and promised to the complainant that he will pay the amount in a couple of month. Considering the close relation and friendship with the accused, the complainant gave the accused an amount of Rs. 30,000/ in cash. After expiry of the period as assured by the accused when the complainant asked for his money the accused issued in favour of the complainant a cheque no. 144368 dty. 07.11.2010 for a sum of Rs. 30,000/ drawn on AXIS Bank Ltd. WZ 24 A, Palam Colony, New Delhi11 in discharge of the obligation and in liquidation of his admitted debt and liability as stated above and requested the complainant to present the cheque for encashment at the end of December, 2010 or first week of January, 2011. When the said cheque was presented for encasement by the complainant with his banker namely Punjab & Sind Bank, New Delhi in the normal course of business within the period of its validity but to the utter shock and surprise of the complainant the said cheque was dishonoured for payment by the banker of the accused and the said cheque was returned to the complainant's banker. The cheque was dishonoured for payment for the reason "funds insufficient" vide returning memo dated 10.01.2011. The accused however failed and neglected to make the payment in discharge of his debt and liability as promised. After repeated request and reminder accused again issued a 3 fresh cheques in favour of the complainant bearing no. 547110 dt. 25.10.2011 for the amount of Rs. 30,000/ drawn on Punjab & Sind Bank, C26, Vikaspuri, New Delhi in discharge of his liability. Upon representation for encashment within the period of validity the said cheques were also dishonoured for the reason "funds insufficient". The complainant through his counsel served a legal notice of demand dt. 16.04.2012 through registered post AD at the address of the accused demanding payment of the dishonoured cheque within 15 days of the receipt of the notice. Despite the service of the legal notice, the accused has not made the payment of the cheque in question to the complainant till date. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 NI Act.
3. After the complaint was filed the complainant led presummoning evidence who tendered his affidavit in evidence and after hearing the Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 29.05.2012 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. dated 14.12.2012 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before the court. He got exhibited the original cheque bearing no. 547110 for a sum of Rs. 30,000/ dt. 25.10.2011 drawn on Punjab & Sind Bank, C26, Vikaspuri, New Delhi18 as Ex. CW1/1 and the cheque returning memo dt. 27.03.2012 as Ex. CW1/2 ,the legal notice of demand dated 4 16.04.2012 as Ex. CW1/3 and the postal receipt vide which the aforesaid notice was sent as Ex. CW1/4. In his cross examination the complainant stated that he is doing the readymade garments business on commission basis. He used to go to abroad off and on for visiting and meeting with his relatives and friends. He used to visit various countries like USA, Japan, U.K., Germany and France. He used to visit the aforesaid countries after time gap of one or more years. He went to Germany with Sh. Manohar brother of accused five years back. He voluntarily stated that it was in the year 2008. The wife and daughter of Sh. Manohar also went to Germany. He does not remember the number of cheques given by the accused to him. The cheques were of different banks. He had not withdrawn the amount paid to the accused from the bank and same he received as sale proceeds of his crops. He took VRS in 2000 on the health grounds. The agreement executed between him and the accused is on 28.11.2009. Witness is confronted with the agreement CW1/6 in CC No. 15/12 where friendly loan is not mentioned in the agreement. He denied the suggestion that since friendly loan is not mentioned in the agreement Ex. CW1/6, the cheque given by the accused to him was for some other purpose and the cheque in question was not issued by the accused for payment of loan amount to him and the cheque in question was not in discharge of legal liability owned by accused towards him. He kept the photocopy of the documents related to immovable property of the accused with him. He does not know the name of owner of this property. The accused did not come to him to take photocopy of the documents. He had not kept any other documents as security except photocopy of the documents pertaining to property of the accused. Witness was confronted with the para 4 of the affidavit of the complainant in which complainant admitted that the accused had 5 handed over the physical and vacant possession of the one room on ground floor of the property. After every dishonour of the cheque he used to inform the accused through phone calls. The body of the entire cheques were filled up sometimes by him and sometimes by accused. He denied the suggestion that the body of the entire cheques were filled up by him and he took the cheques in question for other purpose not for the discharge for this loan liability and because he did not advance loan amount in the mode of cash and this is why he did not say about the denomination of the notes. He further denied that suggestion that he is involved in sending people abroad from India and as he is involved in sending people abroad he took one room from the accused along with copies of the documents and cheques of the accused. Thereafter, the Complainant's Evidence was closed.
5. After that 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 he stated that he had issued the cheque and his brother assured the complainant that he would make payment for the said cheque. In his statement u/s 313 Cr.P.C accused stated that he did not receive the legal demand notice, however, the address WZ 234 A, Gali no. 6, Sadh Nagar, Palam, Colony, New Delhi46 is correct and he had been living on this address for the last 20 years.
Thereafter the matter was fixed for DE and in his defence accused examined Vinod Kumar as DW1 who stated that he know the accused since 1990. Satpal Singh is his jija. When the complainant and the accused were talking about the payment of Rs. 4,50,000/ he was present there. The accused Satpal Singh had given the cheque to Veer Singh as security cheque. Veer Singh told Satpal Singh that when he will receive the payment of Rs. 4,50,000/, he will return the said blank 6 cheque. Once the accused and the complainant were present in a car Swift Desire Car he was also present in the car and they were talking about the payment of Rs. 4,50,000/. At that time Satpal Singh was telling to Veer Singh that he will return the money when he will get it from Germany. When Veer Singh told Satpal Singh that if he would make payment early his cheques will be returned. In his cross examination by Ld. Counsel for the complainant he stated that he is a property dealer. He met Veer Singh. Satpal Singh gave blank cheques to Veer Singh at one time before him. The brother of the accused went to Germany five years back. The brother of the accused went to Germany with his wife only. He knows that the complainant works as an agent. He does not know about the amount equivalent to dishonoured cheque for which the complaint is filed. Thereafter the matter was fixed for final arguments.
6. It is submitted on behalf of the accused that accused has been falsely implicated by the complainant as the liability is owed by the brother of the accused towards the complainant and the cheque given by the complainant are security cheque. It was further submitted on behalf accused that since the accused does not owe any liability towards the complainant the burden is on the complainant to prove the liability of the accused. It is further submitted by the counsel for the accused that accused did not receive the legal notice sent by the complainant.
7. In order to bring home the conviction of the accused, the complainant has to show not only an unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
8. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Act are as follows: 7
(i) The accused issued a cheque on an account maintained by him with a bank.
(ii) The said cheque has been issued in discharge of any legal debt or other liability.
(iii) 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.
(iv) When the aforesaid cheque was presented for encasement, the same were returned unpaid/dishonoured.
(v) 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.
(vi) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to committed an offence punishable u/s 138 Negotiable Instruments Act.
Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
9. WHETHER THE ACCUSED HAS ISSUED A CHEQUE ON ACCOUNT MAINTAINED BY HIM WITH THE BANK.
The accused has himself admitted to have issued the cheque in question in his statement u/s 313 Cr.P.C. and while answering to the questions posed to him at the time of framing of notice u/s 251 Cr.P.C he admitted that the cheque bears his signature. From the facts on record and after due admission of the accused that he issued the cheques to the complainant duly signed by him during the trial, the present fact stands proved. Even this may be the case the person who is voluntarily giving the blank cheque duly signed by 8 him takes the risk of it being used. Therefore, it stands duly proved that the cheque has been issued by the accused.
10. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
In his statement u/s 313 Cr.P.C accused himself admitted that he had issued the cheque to the complainant.
Also there is a presumption in favour of the complainant u/s 118 Indian Evidence 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 negotiation.
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 or in debt or liability. Further Section 139 NI Act is kind of reverse onus clause which puts burden on the accused to prove its case.
Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated u/s 139 NI Act has to be raised by court in favour of the complainant. This presumption is 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 9 raised by the accused must be probable and capable of being accepted. Merely submitting before the court without putting any evidence that cheques given were lost cheques for which intimation had been given to police would be of no use to the complainant.
In the case titled Goa Plast Pvt. Ltd. Vs. Chico Ursula D'souza 2003 (2).RCR.(CR.)131.SC. Hon'ble Supreme Court held "It is to be presumed that a cheque is issued in discharge of any debt or liability. The presumption can be rebutted by adducing evidence and the burden of proof is on person who wants to rebut the presumption.
In another case titled as Hiten P. Dalal Vs. B. Banerjee.SCC.Criminal.960 Hon'ble Supreme Court has observed "There is a presumption of consideration for issuing the cheque and the burden of proving that the cheque was issued without consideration is upon the accused."
Therefore, with the aforesaid discussion it stands duly proved that the accused has issued cheque bearing no. 547110 for a sum of Rs. 30,000/ dt. 25.10.2011 drawn on Punjab & Sind Bank, C26, Vikaspuri, New Delhi18 as Ex. CW1/1 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
11. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheque in question which is Ex. CW1/1 is dated 25.10.2011 which got dishonoured vide cheque returning memo which are CW1/2 dated 27.03.2012 which shows that the cheque has been presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
12. DISHONOUR OF CHEQUE IN QUESTION 10 In the instant case, the cheque returning memo which is Ex. CW1/2 is lying with the record of the case file. On perusal of the same it is revealed that the cheque returning memo are dated 27.03.2012 and the same were issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'FUNDS INSUFFICIENT'. Accordingly, it stands duly proved that when the cheque in question which is Ex. CW1/1 was presented for encashment, the same was dishonoured vide cheque returning memo which is Ex. CW1/2 with the remarks 'FUNDS INSUFFICIENT'.
13. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, the complainant has specifically stated in his pre summoning evidence by way of affidavit which is Ex. CW1/3 that he got issued the legal notice of demand dated 16.04.2012 through post receipt which are Ex. CW1/4 through his counsel and the same has duly been served upon the accused. Legal notice bears the same address which was furnished by the complainant on the complaint and on which the summons were duly served to the accused.
Further there is a presumption u/s 27 General Clauses Act in favour of the complainant that a properly address document sent by Registered Post is deemed to have been delivered if not returned back.
In this case, cheque in question dated 25.10.2011 dishonoured vide cheque returning memo Ex. CW1/2 dated 27.03.2012 and the legal notice of demand Ex. CW1/3 has been duly served upon the accused vide registered post receipt which is Ex. CW1/4. It shows that the legal notice of demand has been served upon the accused within the statutory period of 30 days from the receipt of information by the complainant regarding the dishonour of the cheque issued by the accused.
So, in view of the presumption raised u/s 27 General Clauses Act the 11 legal notice Ex.CW1/3 stands served to the accused in view of the fact that in rebuttal no evidence was led by the accused. Further in view of judgment of the Hon'ble Supreme Court of India in case titled as "C.C. Alavi Haji Vs Palapetty Muhammed & Anr." Appeal (Crl.) 767 of 2007 wherein it is held that:
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of rceipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment withing 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 along with 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."
14. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID CHEQUE In the case in hand, the complainant has deposed in evidence that despite receipt of the legal notice of demand, the accused did not make the payment of the cheque amount in question within 15 days of receipt of legal notice of demand. From the facts on record it is evident that accused has failed to make payment within 15 days of receipt of said legal notice. The cause of action has well arisen in favour of the complainant u/s 138 Negotiable Instruments At when the accused has failed to pay the entire cheque amount within 15 days of the receipt of legal notice of demand.
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15. I have heard the final arguments addressed by Ld. Counsels for the parties and have also carefully perused the entire record which include judgments filed by Ld. Counsel for the accused.
16. With respect to preliminary argument on behalf of the accused it is observed that the burden of proof in 138 NI Act case is on the accused to disprove the liability by adducing the evidence and once the initial burden is discharged by the accused, the same shift to the complainant to rebut the same. However, in this case the accused has merely stated that he did not owe the cheque amount to the complainant and has not brought any evidence to support his claim and thereby he has not been able to discharge the initial burden placed upon him by the statute.
17. In the present case, the accused admitted twice before the Court regarding the issuance of cheque for amount of Rs. 30,000/ drawn on Punjab & Sindh Bank, Vikas Puri, in favour of the complainant, one at the time of framing of notice and another in his statement u/s 313Cr.P.C. However, at both times, he stated that he issued the cheque which was blank and as security cheque. The legal preposition in this regard is settled that if the person issues a cheque to someone duly signed by him, though blank, he gives the authority to the drawee to fill the particulars in the cheque so given. Further, with respect to the contention raised on behalf of the accused that the cheque was a security cheque, the same is not supported by any evidence whatsoever during the trial and the same contention appears to be vague and accordingly unattainable in the eyes of law. It is important to note in this case that DW1, who is the brother in law of the accused stated in his examination in chief that the accused gave cheque to the complainant in his presence. He also stated that the complainant assured the accused of representing the cheque in the event of getting payment of Rs. 4,50,000/ from the accused. Same facts 13 further emboldens the case of the complainant. Nothing favourable could be elicited by the accused from the cross examination of the complainant by Counsel for the accused. Further, no evidence has been led on behalf of the accused to demolish the case of the complainant.
18. Further, in this case, accused got the matter referred before the mediation immediately after appearing before the Court and got the matter settled with the complainant but later on refused to pay the settlement amount and requested for the trial of the offence. No plausible explanation whatsoever has been given by the accused to revert from the mediation settlement arrived at between him and the complainant.
Conclusion
19. In view of the aforesaid discussion, this court is of the considered opinion that the complainant has proved its case against the accused beyond shadow of reasonable doubt. All the ingredients of Section 138 of Negotiable Instruments Act stands satisfied. Accordingly, accused stands convicted of the offence u/s 138 Negotiable Instruments Act.
Copy of this judgment be given to the convict free of cost.
Announced in the Open Court (PANKAJ SHARMA) today on 20th day of December, 2013 MM : Dwarka : Delhi