Delhi District Court
Rattan Lal Sharma vs Satyender Kr. Panchal on 18 November, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII
CHIEF METROPOLITAN MAGISTRATE : NORTH EAST
DISTRICT : KARKARDOOMA COURTS : DELHI.
RATTAN LAL SHARMA VS SATYENDER KR. PANCHAL
CC/RBT No.: 2447/07
U.I.D. No. : 02402R0630963/07
U/s. : 138 N.I. Act
P.S. : SHAHDARA
J U D G M E N T
1 Sl. No. of the case : 2447/07
2 Date of institution of the case : 25/9/07 3 Name of the complainant : Sh. Rattan Lal Sharma.
4. Name of accused, parentage & : Satyender Kumar Panchal s/o Address Sh. Birbal Singh r/o E461, Hardev Puri, Delhi.
5 Offence complained of or proved : U/sec. 138 N.I Act. 6 Plea of the accused : Pleaded not guilty 7 Date reserved for order : 09/10/14 8 Final order : Convicted 9 Date of Judgment : 31.10.2014 Facts as borne out from the complaint are as follows :
1. By filing present case complainant contended that complainant and the accused are well known to each other and in the month of January 2007 accused had approached the complainant and CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 1 2 requested that he is in dire need of money and asked for a friendly loan in the sum of Rs.2,00,000/(Rupees Two Lacs) and promised to pay the same within six months. On the assurance of accused the complainant gave Rs.2,00,000/ to the accused.
2. It is further contended that in the month of July 2007 complainant asked for the return of money to the accused and accused issued four post dated cheque in the amount of rs.50,000/ each bearing cheque No. 215766 dt. 07.07.2007, 215767 dt. 21.07.2007, 215768 dt. 27.07.2007 and 215769 dt. 27.07.2007 all drawn Delhi Nagrik Sehkari Bank Ltd. B67, Jyoti Colony Loni Road Shahdara Delhi and the said cheques are annexed as "A" to "C".
3. Complainant presented the cheques with its banker, cheques bearing No. 215767, 215768 and 215769 were returned back uncashed with remarks "ACCOUNT CLOSED" vide memo dt. , received on 24.07.2007 & 30.07.2007.
4. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 20.08.2007 to CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 2 3 accused through regd. AD post. But he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter, complainant has filed this complainant U/s 138 of the Negotiable Instrument Act, 1881 (hereinafter "the Act") against the accused.
5. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C was led by the complainant. After considering the material and the presummoning evidence on record, the accused was ordered to be summoned vide order dated 30.10.2007 to face trial for the offence under section 138 Negotiable Instruments Act, 1881.
6. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C.
for the offence under section 138, Negotiable Instruments Act, 1881 was served upon him on 16.04.09 to which he simply pleaded not guilty and claimed trial.
7. After service of notice upon the accused under section 251 Cr.P.C.; CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 3 4 the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got himself examined by way of affidavit Ex. C1 and his brother Chaman Lal as CW2 . The complainant's evidence was closed on 02.05.2013
8. After conclusion of complainant's evidence, statement of accused was recorded on 30.05.2013 under Section 313 Cr.P.C. wherein the accused stated that the cheque in question was given for security, no legal notice receied and that there was no legal liability in respect of the same. The accused opted to lead defence evidence. In defence evidence, accused was examined as DW1, Shri Jitender Kumar as DW2 and Shri Karan Singh as DW3 and DE has been closed on 22.07.2014.
9. I have heard the rival submissions at Bar and have gone through the records of this case.
10.To constitute an offence under Section 138 N. I. Act it has to be proved that:
a) there was a legally enforcible debt.
CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 4 5
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to insufficiency of funds.
d) that the demand notice was duly served on the accused and despite that he failed to make payment.
11.The Negotiable Instruments Act, 1881 raises two presumptions; 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 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt. CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 5 6
12.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof beyond reasonable doubt. However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647. It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana Menon Vs. State of Kerala AIR 2006 SC 3366 can be fruitfully referred to.
13.Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge of a debt or liability is a mandate of law, though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 6 7 rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
14.Prior to proceed further here it is not out of mention to place here that the present case has been contensted by the accused on the ground that in the month of September, 2004, the accused was dire need of money so he approached to the complainant to provide a loan of Rs. 2 lacs from any bank. It is contended that the complainant asked accused that he could arrange the said loan amount from one Shri K. P. Singh who is the resident of Tagore Gali, Badarpur, Shahdara, therefore on asking accused has given cheque in questions duly signed without mentioning the name of bearer and date to the complainant in advance against surety for promise of loan but the complainant have never been provided any loan to the accused.
15.It is further contended that despite several requests cheque in question had not been returned back by the complainant and due to good relation between accused and the complainant, accused had also not pressed again for asking/return back the cheque in question. Here it is CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 7 8 also not out of mention to place here that during in his examination in chief , the complainant exhibited Legal notice dated 20.08.2007 as Ex. CW1/G but surprisingly no cross examination has been done to the CW1 in respect to the service of legal notice, moreover, the accused in his examination in chief has not denied the service of legal notice however, in his exaplanation under the statement of accused under section 313 /281 Cr.P.C he denied the service of legal notice but during his cross examination he admitted that he have not got issued any legal notice to the complainant regarding return of the cheque in question due to cordial relationship between the complainant and the accused, as such it is come up on record that the address mention on the legal notice Ex.CW1/G is not disputed byu the accused, hence I am left no option except to declare the legal notice Ex. CW1/G is proved. In this regard reliance can be placed on the judgment of Hon'ble Apex Court in V.RAJA KUMARI VS SUBBARMANA NAIDU cited as 2004 X AD (SC) 433" wherein it was held that :
"......The Principle incorporated in S. 27 of General Clause Act can profitably be imported in a case where the send has dispatched the notice by post with correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 8 9 subterfuge by successfully avoiding the notice....."
16.Now turning to the other contention of the accused which he has taken in his def ence that the cheque in question was allegedly given in the month of September, 2004 which was returned back as dishonoured vide returning memo which is Ex. CW1/D to Ex. CW1/F for want of account closed vide dated 24.7.2007 but now the question, whether this defence can be taken considered as a rebuttal evidence or not, in this regard here it is not out of place to mention here that during cross examination of CW1, the question that the accused has put o ne question i.e. I put it to you that the bank account pertaining to the present cheque had already been closed in the year 2005 what you have to say? CW1 answered that since the intention of the accused was malafide hence he might have issued the false cheque and denied the suggestion as it is incorrect to suggest that the accused has given the cheque in question against the security of loan amount which had been promised to provide him by me from one Shri K. P. Singh R/o:Babarpur, Shahdara, Delhi. It is also incorrect to suggest that due to this reason, the name of bearer and the date had not been mentioned on the said cheque. It is isncorrect to suggest that the accused had demanded the said cheuqes from me but I have not returned the same due to good relation between me and the accused at CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 9 10 that time.
17.On the other hand, in cross examination of the accused, he admitted that he had not issued any legal notice to the complainant regarding the return of cheque in question. Under these circumstances, the defence qua the fact that he had issued four cheques out of which three cheuqes are in question had been given towards security in respect to the arrangement of loan of Rs. 2 lacs in September, 2004 is unreliable and untrust worthy. Reliance can be placed on judgment reported as "
V.S. YADAV VS REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs. 138,139 and Cr.P.C., 1973251281 Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean mis reasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for sake of fundThis order is made for consideration and that is why Sec.139 CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 10 11 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881 Sec.138/139Dishonour of cheque Presumption under sec. 139Rebuttal of Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under sec. 139 N.I Act In order to rebut the presumption under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque 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 cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this case Judgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 313 Cr.P.C is not the evidence of the accused and it cannot be read as part of evidence. The accused has CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 11 12 an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under sec.
281 Cr.P.C or 313 Cr.P.C cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to crossexamination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under sec.
281 Cr.P.C that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 12 13 offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, 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 held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya G. Hedge, 2008(1) JCC (NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec. 138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 13 14 dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec. 139 of N.I Act. If mere statement under sec. 313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under sec. 139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which 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 cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.
18.The last defence which the accused has taken is that the complainant has not given any date of demand of loan, date of giving alleged loan, date of asking back the loan and date of issuing the cheques in CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 14 15 question neither in his complaint nor in his evidence by way of affidavit which is Ex. C1 and relied upon the judgment titled as Vipul Kumar Gupta VS. Vipin Gupta 2012(4) JCC(NI) 248.
19.This defence is also cannot be taken into cosnideration on rebuttal because the complainant not in his complaint but also in his examination in chief has specifically mentioned and deposed that demand of loan amount, giving of loan amount in the month of Jan.
2007 which had to be repaid within six months and therefore in the month of July, 2007 the complainant asked for return of money, therefore the accused had issued four cheques out of which three cheques are in question and so far as the contention in respect to the fact that the loan amount has not been shown in the ITR has already been decided by the Hon'ble Supreme Court in the case titled as Rangappa Vs. Srimohan 2010(5) SCALE 340 wherein three Bench of Hon'ble Supreme Court has held that the consideration attached to a cheque is a matter of presumption and complainant is not required to prove it beyond reaonable doubt. Moreover in the present case, the accused has not disputed the service of legal notice as per above discussion and admittedly accused has not issued any legal notice or notice for demand of return of cheuqes in question, hence I am of the consdiered view that the judgment relied upon by the Ld. counsel for CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 15 16 the accused are not applicable to the given facts and circumstances of the present case.
Decision and Reasoning:
19. After taking into consideration facts and circumstances as well the evidence led by the parties, I am of the considered view that all the four ingredients for offence under Section 138 N. I. Act has been proved in the present case beyond reasonable doubt.
20.For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused stand proved beyond reasonable doubt. Accused is accordingly convicted under Section 138 N. I. Act. Let accused/convict be heard separately on the point of sentence on 14/11/2014.
ANNOUNCED IN OPEN COURT Dated : 31.10.2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 16 17 IN THE COURT OF RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS, DELHI.
RATTAN LAL SHARMA VS SATYENDER KR. PANCHAL
CC/RBT No.: 2447/07
U.I.D. No. : 02402R0630963/07
U/s. : 138 N.I. Act
P.S. : SHAHDARA
18.11.2014
ORDER ON THE QUANTUM OF SENTENCE :
Present : Complainant in person with counsel Sh. Sanjeev Rathi.
Convict with proxy counsel Mr. S.S Rathi
1. Vide separate judgment passed and announced in the open court on 31/10/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. I have heard the convict and his counsel on the Point of Sentence.
3. It is argued by Ld counsel that convict is aged 63 years old and has no previous involvement or antecedents. It is stated that convict is supporting his family consisting of two sons, one daughter, wife and earning Rs.5000/ p.m by doing the work of Laith machine.
CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 17 18 Ld. Counsel requests for taking lenient view against the convict.
4. An application on behalf of accused filed u/sec. 360 Cr.P.C r/w section 3&4 of Probation Offenders Act and report from Probation office as well as from SHO P.S Shahdara received.
5. It is further submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as he is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last nine year and on account of conduct of convict, he may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
6. Opposed by Ld. counsel for complainant stating that convict be punished with maximum punishment and he do not deserve any leniency. Adequate compensation has been prayed to be given to the complainant by Ld. counsel for complainant.
7. I have heard the submissions of Ld. counsel for convict and have CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 18 19 perused the record. Liability in this case has already been proved during the trial and the payment is pending in this case since nine years.
8. Since the probation report in the present case has been called from SHO concerned as well as Probation office which are in favour of the accused,having considered the above said facts and circumstances of the case and the fact that convict has no previous criminal background, report of Probation Officer and SHO in favour of convict, hence it is expedient to release him on probation of good conduct and behaviour. Further no purpose shall be served to award the sentence either to fine or imprisonment, keeping inview the old age of the accused who is 63 years old and also keeping inview the fact that he should given opportunity to reform himself. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of two year. Further Rs.1,80,000/(Rupees One Lac & eighty thousand only) as compensation/cheque amount is awarded in favour of the complainant which has to be paid within one month failing which he shall further under go simple imprisonment for two years and compensation shall be CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 19 20 recovered as revenue of the State.
9. Convict is directed to appear before Probation Officer at least once in every three months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation bond furnished, and accepted.
10.Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT Dated : 18th November 2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.2447/07 RATTAN LAL SHARMA VS SATENDER KR. PANCHAL 20