Delhi District Court
Ct. Case No. 5393/17 Pankaj Kumar vs . Surinder Singh Taneja on 24 December, 2021
1/7
IN THE COURT OF SHRI JAGMOHAN SINGH
ACMM: NORTH: ROHINI COURTS:NEW DELHI
CC NO. 5393/17
Pankaj Kumar S/o Late Dr. Ramesh Kumar,
R/o 1360, First Floor,
Dr. Mukherjee Nagar, Delhi-110009.
...............Complainant
Versus
Surinder Singh Taneja S/o Sohan Singh Taneja
R/o H. No. 243, Sector-6, R.K. Puram,
New, Delhi-110022.
.....................Accused
1. Name of the complainant : Pankaj Kumar
2. Name of the accused : Surinder Singh Tajena
3. Offence Complained of or proved : Under section 138 & 142 of
Negotiable Instruments Act, 1881
4. Plea of the Accused : Pleaded not guilty
5. Date of filing : 04.12.2017
6. Date of Institution : : 06.12.2017
7. Date of reserving judgment/order : 24.12.2021
8. Final Order/Judgment : Convicted
9. Date of pronouncement : 24.12.2021
JUDGMENT
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. Vide this judgment, I shall dispose of the present complaint u/s 138 and 142 of the Negotiable Instruments Act, 1881 (in short, NI Act) filed by the complainant against the accused.
2. The case of the complainant is that he is Karta of Pankaj Kumar (HUF) as well as proprietor and owner of M/s Ply Flex Packaging Industries, F-72, Sector-8, Noida (UP). Accused took on rent the said premises vide Lease Agreement Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 2/7 dated 04.12.2015 from the complainant for a period of 11 months commencing from 10/12/2015 at a monthly rent of Rs. 60,000/- It is further alleged that after the expiry of aforesaid lease period, neither the accused vacated the aforesaid property nor made regular payment of monthly rent to the complainant. Hence, a sum of Rs. 4,40,000/- had become due and payable by the accused to the complainant towards the arrears of rent qua the said property for the period up to 31.07.2017. It is further alleged that in the last week of July, 2017 accused agreed to vacate the said property before 31.07.2017 after adjusting the interest free refundable security amounting to Rs. 1,20,000/-.
Accordingly, accused issued five cheques amounting to Rs. 3,20,000/- in total including the present cheque bearing no. 000028, dated 01.09.2017 for a sum of Rs. 1,00,000/- drawn on Yes Bank Ltd., Sector-27, Atta Noida Branch in favour of "Pankaj Kumar (HUF)' towards his discharge of his liability and assured that the said cheque would be encashed positively on presentation for encashment. It is further alleged that on presentation the above said cheque was received back dishonoured with the remarks "Payment stopped by drawer"
vide cheque return memo dated 11.10.2017. Thereafter, complainant got served legal notice dated 06.11.2017 upon accused through registered post. However, accused failed and neglected to comply the same. Hence the present complaint.
Trial
3. Cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by Ld Predecessor Court and accused was summoned vide order dated 06.12.2017. The accused appeared in Court and was admitted to bail. Thereafter, notice u/s 251 Cr.P.C. explaining accusations against the accused u/s 138 of the NI Act was served on 25.08.2018 to which he did not plead guilty and claimed trial. Thereafter, complainant examined himself in evidence and was cross-examined. Statement of accused was recorded u/s 313 Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 3/7 Cr.P.C. on 18.03.2019. The accused opted not to lead any evidence in his defence.
4. Documents relied upon by the complainant are as follows:-(i) Ex CW-1/1:
Lease Agreement, dated 04.12.2015; (ii) Ex CW-1/2 : Original Cheque bearing no. 000028, dated 01.09.2017 for a sum of Rs. 1 Lakh, drawn Yes Bank Ltd, Sector-17, Atta, Noida Branch; (iii) Ex. CW1/3: Cheque return memo dated 11.10.2017; (iv) Ex. CW-1/4: Copy of legal notice dated 06.11.2017; (v) Ex.CW1/5 to Ex CW-1/7 : Postal receipts; and (vi) Ex CW-1/8 : tracking report regarding delivery of the above said legal notice.
Relevant legal provisions
5. The relevant legal provisions may now be referred to. Offence under S. 138 N.I. Act is deemed to have been committed when 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.
To launch prosecution under the said section, the following requirements are to be fulfilled:- (i) that 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; (ii) 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (iii) 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.
Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 4/7 Being cumulative, it is only when all the ingredients and aforementioned requirements are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
6. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability. The said presumptions are rebuttable in nature.
7. 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 clear 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.
Appreciation of evidence
8. I have heard both the Ld. Counsels and also gone through the record carefully.
9. As noted above, the accused has not led any evidence in his defence. It may now be examined whether the accused has been able to rebut presumptions u/s 118 and 139 NI Act arising in favour of the complainant, with the aid of cross- examination of the complainant.
10. The defence which emerges from the cross-examination of the complainant is three fold, - (i) the accused had vacated the tenanted shop after a period of initial eleven months only and hence he did not owe any liability towards the complainant; (ii) the cheque in question was misplaced by the accused and has been misused by the complainant; and (iii) the cheque was blank signed and Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 5/7 remaining particulars were not filled by the accused.
11. The above defences may now be examined. As regards vacation of the shop after eleven months only, the complainant denied the said suggestion during his cross-examination and stated that the (written) tenancy agreement was completed in November 2016 and was extended with the mutual consent of parties for a further period of eleven months. The accused did not lead any evidence regarding vacation of the tenanted shop after the initial period of eleven months. In view of the same, the above defence does not hold ground and is rejected.
12. The second defence as noted above, is that the present cheque was misplaced by the accused and was misused by the complainant. The complainant denied the said suggestion too during his cross-examination. It is pertinent to note that accused has not filed on record any complaint made to his bank or to the police regarding the present cheque being misplaced. In these circumstances, it appears to the Court that the present defence has been taken only as an after thought to escape criminal liability in the present case. The same is also accordingly rejected.
13. The defence of the accused lastly is that he had only signed the present cheque and the remaining particulars were not filled by him. The same may now be examined. In this regard, it is pertinent to refer to Section 20 NI Act which provides for "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp."
14.The above legal position has been explained in the judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 6/7 in the following words:
"In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. "
15.The above judgment was quoted with approval by the Hon'ble Delhi High Court in Ravi Chopra vs State And Anr. 2008(2) JCC (NI) 169 and it was held that if the signatures on the cheque are admitted by the accused, it matters little if the name of the payee, date and amount are filled up at a subsequent point in time.
16.In view of the judgments discussed above, the contention of the Ld. Defence Counsel that other columns in the cheque, except the signatures, were not filled in by the accused does not have any force in the eyes of law.
17.Ld Defence Counsel also argued that initial onus was upon the complainant to prove existence of a legally enforceable debt and relied upon Krishna Janardhan Bhat Vs Dattatraya G. Hegde 2008 AIR SC 1325 in support of the same. However, it was held by the Hon'ble Supreme Court in Rangappa Vs Sri Mohan 2010 V AD (SC) 565 that the existence of a legally recoverable debt in favour of the complainant, is also a matter of presumption u/s 139 NI Act as . It was also held in the said judgment that earlier judgment of the Hon'ble Supreme Court in Krishna Janardhan Bhat (supra) did not lay down correct law to the above extent.
18.In view of the above reasoning, I hold that the accused has miserably failed to rebut presumption u/s 118 and 139 NI Act arising in favour of the complainant. Decision
19.In view of the above discussion, I hold that the complainant has been able to Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja 7/7 prove its case against the accused beyond reasonable doubt. Accordingly, accused Surinder Singh Taneja is convicted of the offence under section 138 NI Act. A copy of this judgment be given to the convict dasti and free of cost. Order on sentence shall be passed after hearing both the parties.
20. Bail bond in terms of Section 437A Cr.PC has already been obtained from the convict in compliance of the judgment of the Hon'ble High Court in State Vs Virender Yadav & Anr. 2014 I A.D (Del.) 389.
Announced in open Court on 24.12.2021 (7 pages) (JAGMOHAN SINGH) ACMM (North)/Rohini Courts Delhi Ct. Case No. 5393/17 Pankaj Kumar Vs. Surinder Singh Taneja