Delhi District Court
Supreme Court Reported As "K. Bhaskaran vs . Sankaran on 14 December, 2012
IN THE COURT OF SH. ARUN GOEL, METROPOLITAN
MAGISTRATE (N.I ACT - 02), DWARKA COURTS, NEW DELHI.
GE CAPITAL TRANSPORTATION FINANCIAL SERVICES LTD
COMPLAINANT
VERSUS
ROHIT LOGISTC PVT LTD. ACCUSED
P.S:
U/s 138 Negotiable Instrument Act
1. Serial No. /CC of the case : 9/12
2. Name of the complainant : G.E Capital
Transportation
Financial Services Ltd.
Office at AIFACS
building , 1 Rafi Marg,
New Delhi.
3. Date of Institution : 23.04.2009
4. Name of the accused : Rohit Logistic Pvt. Ltd
Through its Directors/
Managing Director
X216, Truck
Terminal , Near
Kamgar Chowk,
MIDC Waluj, Aurang
431133.
5. Date when judgment was :05.12.2012
reserved
6. Date when judgment was :14.12.2012
pronounced
CC No. 9/12 Page No. 1
7. Offence complained of and :138 N.I Act.
proved
8. Plea of accused : Guilty
9. Final Judgment : Convicted.
JUDGMENT: Vide this separate judgment, I shall dispose off the criminal complaint filed Under Section 138 of the Negotiable Instrument against the accused namely : ROHIT LOGISTIC PVT LTD.
BRIEF FACTS OF THE COMPLAINT ARE AS FOLLOWED:
1. The complainant has stated that the accused had approached the complainant company for loan facility of Rs. 9,35,000/. The same was sanctioned to the accused vide loan account no. TWPUNRCVZ00324823 and it was disbursed to the accused on 07.12.2007. The above said loan was to be repaid in 48 installments of Rs. 121950/ each. The accused in discharge of his partial liability had issued a cheque bearing no. 88386 for the sum of Rs. 121950/ dated 07.01.2009 drawn on ICICI Bank to the complainant . However, when the said cheque was presented for encashment it was dishonoured vide cheque return memo dated 10.02.2009 with reasons "insufficient funds in account".
2. Thereafter, legal notice dated 06.03.2009 was issued upon the accused intimating about the dishonour of the cheque by registered post. However, despite the intimation of legal CC No. 9/12 Page No. 2 notice, accused failed to make the payment to the complainant. Hence a complaint under Section 138 Negotiable Act (herein after referred as "N.I Act") was filed before this court on 23.04.2009.
3. After filing the complaint, the complainant lead Pre summoning Evidence and examined his AR as CW1 and thereafter, accused was summoned and Sh. Akshay Kumar appeared on behalf of the accused. After appearance of the accused , notice under Section 251 Cr.P.C was framed on 15.05.2012, in which the accused pleaded not guilty and claimed trial. Thereafter, complainant lead Post summoning evidence, In post summoning evidence, complainant examined Atul Bansal as CW1, who tendered his affidavit of evidence as CW1/I , and relied upon the following documents
a) Copy of Power of Attorney as Ex. CW1/A.
b) original cheque bearing no. 088386 dated 07.01.2009 of Rs. 121950/ as Ex. CW1/B.
c) original cheque return memo dated 10.02.2009 as Ex. CW1/C.
d) legal notice dated 06.03.2009 as Ex. CW1/D.
e) postal receipts date 09.03.2009 as CW1/E.
4. C.E was closed on 30.07.2012. Thereafter, statement of accused under Section 313 Cr.P.C was recorded on 29.08.2012 and all the incriminating evidence was put to him. Accused had stated that he wants to lead D.E. Sh. Akshay Kumar appeared as DW1 and had relied upon documents such as Emails sent to official of the CC No. 9/12 Page No. 3 complainant as Ex. DW1/1 and DW1/2. D.E was closed on 10.10.2012. Thereafter, the matter was listed for final arguments.
5. Final arguments were advanced by both the parties.
6. In this case, Ld. Counsel for the complainant has stated that the accused had taken the loan from the complainant and was liable to pay the same. The cheque in question was given towards the legal liability and the same was dishonoured. Legal notice had been issued and despite service of legal notice, accused had failed to make the payment. Ld. Counsel for the complainant further submitted that all the necessary ingredients of Section 138 NI. Act i.e cheque was issued against the legal liability and the same has been dishonored, Statutory legal notice has been issued and the payment has not been received from the accused, have been proved. It is further stated that the accused is liable to be convicted under Section 138 of the N.I Act.
7. On the other hand, Ld. Counsel for the accused has denied the contentions of the Ld. Counsel for the complainant. It is submitted on behalf of the Ld. Counsel for the accused that the complainant has failed to prove his case and the complaint is liable to be dismissed. He has raised the following objections:
a) Firstly, this court does not has a territorial jurisdiction with regard to the present case.
b) Secondly, there is no legal liability of the accused.
c) Thirdly, it is stated that no statutory notice as required CC No. 9/12 Page No. 4 under the provisions of N.I Act has been served upon the accused.
8. Before proceedings further,Before proceedings further, it would be useful to have the Section 138 of N.I Act. It states as follows: "Dishonour of cheque for insufficiency, etc, of funds in the account - Where 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years) or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this Section shall apply both unless
(a) 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;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the CC No. 9/12 Page No. 5 said amount of money by giving a notice in writing , to the drawer of the cheque, of the receipt of information by him from the bank regarding the return of the cheque as unpaid ; and (c ) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
9. The section 118 of the N.I Act further provides as follows: "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
10.The Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability"
11.The effect of Section 118 and 139 of the N.I Act is that it has to be presumed that the cheque was issued with respect to a legal liability. In the judgment passed by the Hon'ble Supreme Court reported as "K. Bhaskaran Vs. Sankaran Vaidhyan Balan" (AIR 1999 SC 3762) while dealing with CC No. 9/12 Page No. 6 Section 118 and 139 of the N.I Act, the Hon'ble Supreme Court observed as follows:
"It was observed that as the signature in the cheque is admitted to be that of the accuse , the presumption envisaged in Sec. 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharges of any debt or liability. The burden was on the accused to rebut the aforesaid presumption".
12.It would be relevant to mention that it has not been disputed by the accused that cheque was issued by him or that he had not received taken the loan from the complainant.
13.Now, coming to the first contention of the accused that this court does not has the territorial jurisdiction with regard to the present case. It is stated by the accused that the loan agreement between the parties was executed at Aurangabad, the cheque was issued at Aurangabad and the accused has its office and works for gain at Aurangabad. The banker of the accused is also at Aurangabad and No cause of action has arisen within the territorial jurisdiction of this court. Hence, this court does not has the territorial jurisdiction to entertain the present case.
14.Ld. Counsel for the accused has also relied upon the judgment of Hon'ble Delhi High Court reported as Sh. Raj Travels and Tours Ltd & Ors. Vs. Destination of the World CC No. 9/12 Page No. 7 (Subcontinent) Private Ltd, reported in IV (2011) BC681. It is stated by the Ld. Counsel for the accused that it has been specifically held in this case that the jurisdiction of the court will only arise from the place of banker of the accused. The place of the bank of the complainant cannot confer jurisdiction to the court. It is stated that the banker of the accused, on whom the cheque in question has been drawn, is at Aurangabad. Hence, this court does not has the jurisdiction with regard to the present matter.
15.Admittedly, the cheque in question Ex. CW1/B clearly mentions that it is payable at par at all branches of the payee bank. Ex. CW1/C1 i.e return memo is given by the payee bank and address mentioned on it is of Delhi. In the judgment relied upon by the accused, i.e Sh. Raj Travels and Tours Ltd & Ors. Vs. Destination of the World (Subcontinent) Private Ltd. (SUPRA), it has been mentioned in Para 36 as follows: "Before concluding I would be failing not to lodge a caveat. With electronic banking and facility payable at par of clearance provided by bankers and especially in metropolitan Cities, where cheques are cleared by not being presented to the drawee bank but at nodal branches of the concerned banks, the subject matter of jurisdiction may have to be decided keeping in view that the drawee bank has created an agency where the cheque in question transmitted for clearance and the situs where the clearance takes place would then arguably become the place where the cheque would be required to be treated as CC No. 9/12 Page No. 8 presented to 'the bank' i.e the drawee bank. But, in such circumstances, properly constituted pleadings have to be found in a complaint and lodging the caveat, I leave it at that for debate to be properly argued in an appropriate case with the necessary relevant pleadings".
16.The above stated judgment clearly reveals that when the cheque is payable at par, an agency is created by the payee bank. In that case, the traditional meaning of drawee bank would not apply and the place where the cheque is cleared would have the jurisdiction in that case. In the complaint, complainant has stated that the cheque in question was presented at Delhi and the same has been dishonoured from Delhi. In this case, in view of the judgment of Hon'ble Supreme Court reported as K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr reported in Crl. A. No. 1015 of 1999. This court will have the jurisdiction in the present matter because one of ingredient of the offence under section 138 N.I Act, i.e the place where the cheque has been dishonoured, has been committed with in the jurisdiction of this court. Hence, this contention of the Ld. Counsel for the accused is not tenable.
17.Now, coming to the second contention of the accused that there is no outstanding legal liability of the accused. It is stated by the accused that the vehicles were repossessed by the complainant on the assurance that no further amount will be paid by the accused to the complainant. Hence, as per the agreement between the parties, the loan was settled and no legal liability of the accused remains. It would be CC No. 9/12 Page No. 9 relevant to mention that accused has not filed on record any document to prove its contention mentioning the factum of settlement.
18.In the present case, complainant has filed on record the Ex. DW1/P, which are the statement of account of the accused and they clearly mentions that the amount is still due upon the accused even after the sale of the vehicle. The accused has further relied upon the email Ex. DW1/1 to prove that the complainant was liable to return the Post dated cheque including the cheque in question. The said email is alleged to be sent to one of the Official of the complainant. There is no mention of the above stated cheque in the email correspondence between the parties.. The first email is dated 26.02.2009 but the cheque in question is dated 07.01.2009 and it has been dishonoured on 10.02.2009. which means before the start of conversation between the parties. Moreover, in the email sent by the accused dated 09.03.2009, it has not raised any objection about the present cheque presented for payment and it has not asked for return of the same.
19.In that case, in view of the presumption made under Section 139 read with Section 118 of N.I Act, it has to be presumed that the cheque in question was issued against the legal liability of the accused . The accused has failed to rebut the presumption. Accordingly, this contention of the accused is also no tenable.
20.Now, coming to the third contention of the accused . It is stated by the accused that no legal notice has been served CC No. 9/12 Page No. 10 upon it and one of essential ingredients of Section 138 N.I Act has not been complied with and hence the present complaint filed by the complainant is not maintainable. DW1 Sh. Akshay Kumar was cross examined by the Counsel for the complainant. In his cross examination, he has admitted that the address mentioned in Ex. CW1/D i.e "Rohit Logistic Pvt Ltd, X216, Truck Terminal, Near Kamgar Chowk, MIDC Waluj, Aurang - 431133" is its correct address. The address which is mentioned on Ex. CW1/D is same that has been mentioned in the complaint. Accused has been served on the same address. The Counsel for the accused has further stated that the Ex. CW1/E is the postal receipts which mentions that the legal notice was sent to Mumbai and not to Auranagabad and the address of the accused is of Aurangabad . It means that it was sent to wrong address.
21.Ld. Counsel for the complainant has stated that it was sent to the address which is mentioned on the Ex. CW1/D, which is of Aurngabad, however, it falls within the division of Mumbai. So, Ex. CW1/E i.e postal receipt mentions the address of the Mumbai. In this case, accused has disputed the service of legal notice. It was necessary for the accused to examine postal authority to prove that the legal notice was sent to the wrong address but the accused has not examined any postal authority to prove his contention.
22.However, in the judgment of Hon'ble Supreme Court reported as C.C Alavi Haji Vs. Palapetty Muhammed and Another reported in (2007) 6 Supreme Court cases 555, it CC No. 9/12 Page No. 11 observed as follows: "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of the receipt 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 the payment within 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 GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case if the 'giving of notice' in th e context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape fro legal consequences of Section 138 of the Act".
CC No. 9/12 Page No. 1223.Perusal of the above stated judgment reveals in cases where the only defence raised by the accused is that he was not served with the legal notice, in that case, it is essential for the accused to make the payment within 15 days after the receipt of summons. In this case also, the only defence which is available with the accused is that he was not served with the legal notice. In that case, in view of the judgment of Hon'ble Supreme Court reported as C.C Alavi Haji Vs. Palapetty Muhammed (SUPRA) accused should have made the payment within 15 days of the receipt of the summons but it has failed to do so. There is no other defence available with the accused. Hence, this contention of the accused is also not tenable.
24.In view of above stated discussion, the complainant has been able to prove all necessary ingredients of the Section 138 of N.I Act. Accordingly, accused stands convicted of offence U/s 138 N.I Act.
ANNOUNCED IN THE OPEN
COURT ON 14.12.2012
All the pages from 1 to 13 are (ARUN GOEL)
signed by me. METROPOLITAN MAGISTRATE
NI. ACT 02
DWARKA COURTS,NEW DELHI
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