Delhi District Court
Gurmeet Kaur vs . Ashok Chaudhary on 12 July, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA
HOUSE COURTS, NEW DELHI.
Presided by: Ms. Vijeta Singh
Gurmeet Kaur Vs. Ashok Chaudhary
C C No.839/1/13
U/S 138 N. I. Act.
___________
JUDGMENT
Ms. Gurmeet Kaur R/o WZG43, Naraina Village New Delhi110028 ............Complainant Versus Ashok Chaudhary Proprietor, M/s. A. K. Electricals WZ1080B (1st Floor) Near Community Centre Nangal Raya New Delhi 110046 ...............Accused
a) Case ID No. of the case. :02403R0102792011
b) Complaint Case No. :839/1/13
c) Date of institution. :05.02.2011
d) Offence :U/S 138 N. I. Act.
e) plea of accused :Not guilty.
f) Final Order :Acquitted.
g) Date of Judgment :12.07.2013.
BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION. Gurmeet Kaur Vs. Ashok Chaudhary Page 1/13 CC No. 839/1/13
1. The present complaint has been filed by Smt. Gurmeet Kaur,R/o WZG43, Naraina Village,New Delhi110028 (hereinafter, referred to as the complainant) against the accused Ashok Chaudhary,Proprietor, M/s. A. K. Electricals, WZ1080B (1st Floor),Near Community Centre, Nangal Raya,New Delhi 110046 u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter, referred to as "the Act").
2. It has been averred in the complaint that the accused approached the complainant for a friendly loan of Rs. 2,70,000/ ; that the complainant advanced the loan by way of cash and the accused issued the following cheques drawn on Indian Bank, Janak Puri, New Delhi in discharge of his legally enforceable liability:
I. Cheque bearing no. 586909 dated 09.10.2010 for Rs. 1,50,,000/.
II. Cheque bearing no. 506916 dated 10.10.2010 for Rs. 1,20,000/ It has also been stated that on presentation, the above said cheque was returned dishonored with reason " funds insufficient" vide return memo dated 02.12.2010; that the complainant therefore, sent a legal notice dated 28.12.2012 through Counsel vide Registered AD and UPC which was received back with report of refusal and which has not been received, respectively, therefore are deemed to have been served. Further that despite issuance of notice, payment within stipulated period has not been made. It has been averred that the Gurmeet Kaur Vs. Ashok Chaudhary Page 2/13 CC No. 839/1/13 accused has committed offence u/s 138 of the Act and the present complaint has been filed within stipulated period and is therefore, within limitation. It has also been pleaded that this Court has jurisdiction to entertain the complaint.
3. Ld. Predecessor of this Court, took cognizance of the offence on the aforesaid facts and vide order dated 10.02.2010 issued summons to the accused for offence u/s 138 of the Act. The accused entered appearance before the Court on 08.06.2011 and was admitted to bail on even date. Notice u/s 251 Cr.P.C was framed against the accused on 07.09.2011 to which the accused pleaded not guilty and claimed trial.
4. The complainant was summoned for cross examination on his affidavit Ex. PW1/1 which had been tendered alongwith following documents:
1. Ex. CW1/A and Ex. CW1/B original cheques.
2. Ex. CW1/C return memo.
3. Ex. CW1/D office copy of legal notice.
4. Ex. CW1/E Postal receipts.
5. Ex. CW1/F returned envelope.
6. Ex. CW1/G complaint.
5. CW1 was duly cross examined. On 08.12.2011, at request of Ld. Gurmeet Kaur Vs. Ashok Chaudhary Page 3/13 CC No. 839/1/13 Counsel for complainant, complainant evidence was closed.
6. Thereafter, statement of accused u/s 313 Cr. P.C was recorded on 11.01.2012 by the Ld. Predecessor of this Court. The accused denied the incriminating circumstances appearing against him and stated that he had not issued the cheque to complainant but the same had been stolen and he did not himself give them to the complainant.
7. Thereafter, accused examined himself as DW1, SI Rakesh as DW2 and Inspector Renu Sharma as DW3.
8. DW1 stated that in 2006 15 cheques were stolen from his office i.e D5/32, Vashistha Park, Pankha Road, New Delhi regarding which he had lodged a complaint; that in December, 2009, he learned that one Suresh Chanchal had stolen them; that the cheques in dispute are also of the same series which had been stolen; that he did not know the complainant; that he had intimated his bank that cheque nos. 585301 to 585350 should not encahsed as they were not traceable; that even Suresh Chanchal has filed a compliant against him u/s 138 of the Act. The witness also tendered Ex. DW1/1 (complaint dated 19.09.2010 to SHO, PS Dabri), Ex. DW1/2 (reply to legal notice which is dated 21.01.2011) and relied upon mark A (copy of intimation given to bank) and mark B (copy of complaint dated Gurmeet Kaur Vs. Ashok Chaudhary Page 4/13 CC No. 839/1/13 05.11.2006). He was duly cross examined.
9. DW2 SI Rakesh who produced Ex. DW2/1 (copy of FIR No. 186/09, PS, Naraina). He was duly cross examined.
10. DW3 Inspector Renu Sharma who produced DW3/1 (FIR No. 250/11, PS, Sagarpur) registered on complaint of accused regarding theft of his cheques by Suresh Chanchal and Naresh Tanwar. She further stated that in his complaint dated 19.09.2010, complainant had mentioned that cheques no. 586904 and 586905 were never delivered to Suresh Chanchal and the cheques were forged and fabricated. She was duly cross examined.
11. Defence evidence was closed by Ld. Predecessor of this Court on 23.04.2012.
12. In the interim period, accused moved applications u/s 311 Cr.P.C and u/s 311A Cr.P.C. The aforesaid applications were dismissed vide order dated 03.01.2013. Thereafter, another application u/s 45 read with Section 73, Indian Evidence Act came to be moved by accused.
Matter was received by way of transfer by this Court on 23.04.2013 vide order no. 06/DHC/Gaz./G3/VI.E.2(a)2013 . Gurmeet Kaur Vs. Ashok Chaudhary Page 5/13 CC No. 839/1/13
13. This Court vide order dated 27.06.2013 dismissed the application u/s 45 read with section 73 of the Indian Evidence Act of accused.
14. Final arguments were heard on 05.07.2013.
15. It has been argued by Sh. Joginder Kumar, Counsel for complainant that the complainant has proved her case beyond reasonable doubt and accused is liable to be convicted. It has further been submitted that complaint upon which accused has relied regarding theft of cheque is not with respect to cheques in dispute herein. Further that, the accused has failed to corroborate his claim that cheques were dishonoured for "stopped payment" due to loss of cheques as return memo Ex. CW1/C and Ex. CW1/D are due to "funds insufficient". It has further been argued that the accused was aware of dishonour of cheque as he claims to have replied to the legal notice. It is further also stated that DW3 has admitted that the complaint upon which FIR No. 250/11 which is Ex. DW3/1 was registered, it is silent as regards cheques in dispute. Further that accused has failed to prove that he had given intimation to the banker to not dishonour the cheque.
16. Per Contra, Sh. M. K. Gautam, Counsel for accused sought dismissal of complaint drawing the attention of the Court to the fail that cheques mentioned in complaint and affidavit are contrary to Gurmeet Kaur Vs. Ashok Chaudhary Page 6/13 CC No. 839/1/13 cheques relied upon. Secondly, that CW1 has contradicted herself as regards how the loan was paid suggesting that she was not in the capacity to pay the loan. Thirdly, that CW1 has admitted that loan advanced is not reflected in the ITR. Fourthly, that she has contradicted herself whether the cheque was post dated or not.
17. This Court has considered the submissions and material on record,
18. It has been held in Kusum Ingots and Alloys Ltd. V. Pennar Peterson Securities Ltd. 2000 (2) SCC 745 as under:
On a reading of provisions of Section 138 of the Negotiable Instruments Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:
"a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; ii. that 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, which ever is earlier. Iii. That cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque for that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank; iv. 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 15 days of the receipt of information by Gurmeet Kaur Vs. Ashok Chaudhary Page 7/13 CC No. 839/1/13 him from the bank regarding the return of the cheque is unpaid.
v. 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."
19. Further, Section 118 of the Act stipulates as under:
"Until the contrary is proved, the following presumptions shall be made:
(a) of consideration. that every negotiable instruments was made or drawn for consideration, and that every such instrument, when it has been accepted, inndorsed, negotiated or transfer was accepted, indorsed, negotiated or transfered for consideration;..."
Section 139 of the Act provides as under: "Presumption in favour of holder. It shall be presumed, until 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."
In this regard, this Court also seeks to reproduce the observations of the Hon'ble Apex Court that "... it is obligatory on the Court to raise this presumption in every case where the factual basis for raising presumption has been established..." Reliance is placed upon Hiten P. Dalal Vs. Bratindra Nath Banerjee (2001) 6 SCC
20. The complainant has by way of evidence led established that Gurmeet Kaur Vs. Ashok Chaudhary Page 8/13 CC No. 839/1/13 cheques bearing no. 586909 and 586916 had been drawn on Indian Bank, Janak Puri in her favour by the accused. The argument that cheques in dispute do not correspond with the cheques mentioned in complaint and affidavit is misplaced as perusal of certified copies of cheque shows that the same are corresponding with the cheques mentioned in complaint and affidavit. The signatures on the aforesaid cheques by accused have not been challenged by him either during cross examination of CW1 or by way of defence evidence. The aforesaid cheques were reported to have been stolen, however, the claim is left for consideration, subsequently. The complainant has also proved that aforesaid cheques had been dishonoured vide Ex. CW1/C for funds insufficient. During cross examination of CW1 no such questions has been put to the witness that aforesaid document is not genuine. Thereafter, complainant also proved Ex. CW1/D which was issued to accused within stipulated period vide Ex. PW1/E. Service of the same has been claimed by accused himself who stated that he had replied to the notice vide Ex. DW1/2. Despite so, the complainant also proved that accused did not pay the cheque amount within stipulated period despite service as the testimony of the witness on aforesaid aspect has remained unchallenged and unrebutted.
21. As soon as the complainant discharged the burden to prove that the cheque was executed by the accused, the rules of Gurmeet Kaur Vs. Ashok Chaudhary Page 9/13 CC No. 839/1/13 presumption u/s 118 and 139 of the Act help him shift the burden on the accused. Reliance is placed upon Kumar Sports Vs. Sharma Carpets AIR 2009 SC 1518.
22. Further, it has been held in Bharat Barrel and Drum Manufacturing Company V. Amin (1999) 3 SCC 35 and referred to Krishna Janardhan Bhat Vs. Dattatraya G. Hegde. AIR 2008 SC 1325 as under:
"Upon consideration of various judgment as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by brining on record the preponderance of probabilities by reference to the circumstances upon which he relies...
25. Furthermore, whereas prosecution must Gurmeet Kaur Vs. Ashok Chaudhary Page 10/13 CC No. 839/1/13 prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities".
Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies...
26.A statutory presumption has an evidentiary value,. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record..."
23. To rebut the presumption that a loan of Rs. 2,70,000/ as claimed was advanced, the accused cross examined the complainant as to how she arranged for the loan which was paid to the accused. It was deposed by CW1 as under:
"...I am doing business of boutique at G43, Naraina Village for the last 1520 years. I am maintaining the accounts of boutique business in the ICICI Bank and Punjab National Bank, Nariana Vihar. ...I also doing the work of export At G43, Naraina Village. ...The accused came to me in the month of June, 2010 and I paid Rs.
2,70,000/ to the accused in cash. I had earned in my business. I had withdrawn the amount of about Rs.
20,000/ to Rs. 50,000/ from the bank but I do not Gurmeet Kaur Vs. Ashok Chaudhary Page 11/13 CC No. 839/1/13 remember from which bank I withdraw the amount and the balance amount was paid in cash from my house. I am income tax payee. "
She further stated as under:
" I paid the amount of Rs. 2,70,000/ in 34 installments and the above said cheques were given on the dates mentioned on the said chequed i.e 09.10.2010 and 10 .10. 2010.."
On further cross examination, the witness stated that "...I have not shown the amount of Rs. 2,70,000/ i.e. the amount of cheques in my income statement. I have not shown the said amount in my income tax return as a loan amount to the accused..."
24. In view of aforesaid admissions from the complainant, the accused was successful in shifting the onus upon the complainant to show that she had the capacity to pay the loan of Rs. 2,70,000/ to the accused and thus, cheques had been issued towards discharge of legally recoverable dues. However, she failed to justify the resources from where she derived the capacity to pay the loan and also admitted that the transactions are not reflected in her Income Tax Return . Thus, the accused has been successful in raising doubts ovser the case of complainant. Their may be grave Gurmeet Kaur Vs. Ashok Chaudhary Page 12/13 CC No. 839/1/13 discrepancies in the defence evidence led, however, the same would have assumed consequence if complainant would have proved her case beyond reasonable doubts. Thus, in the considered view of this Court, complainant has failed to prove her case beyond reasonable doubt. Reliance is placed upon Krishan Janardhan Bhat (Supra). The accused is therefore, entitled to benefit of doubt. He stands acquitted of offence u/s 138 of the Act.
26. File be consigned to records after compliance Section 437A Cr.P.C.
Announced in the open Court (Ms. VIJETA SINGH) on 12.07.2013 MM04/Patiala House Courts New Delhi.
Gurmeet Kaur Vs. Ashok Chaudhary Page 13/13 CC No. 839/1/13