Delhi District Court
Rangappa V. S. Mohan vs Unknown on 24 February, 2023
DLST020045432019
Registered on : 07.02.2019
Presented on : 11.02.2019
Decided on : 24.02.2023
Decision : Convicted
IN THE COURT OF
METROPOLITAN MAGISTRATE (NI ACT)
AT SOUTH, SAKET DISTRICT COURT
(PRESIDED OVER BY MR.KAWAL SINGH)
CT Cases/1619/2019
CNR NO.DLST020045432019
JUDGMENT
ANIL KUMAR son of late Zile Singh, r/o 660, Village Devli, New Delhi.
..............Complainant VERSUS RAHUL PRASAD son of Mr.Maheshwar Prasad, r/o 11/214, Second Floor, Near Pappy Market, Madangir, New Delhi .............. Accused Offence punishable under section 138 of Negotiable Instruments Act, 1881 CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.1 of 13 STATEMENT IN BRIEF OF THE DECISION WITH REASONS FACTUAL MATRIX
1. The instant proceedings have originated out of a complaint preferred by Mr.Anil Kumar (complainant) against Mr.Rahul Prasad (accused) for the offence under section 138, Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. A succinct account of the facts in the complaint is that on 03.09.2018, the accused had approached the complainant for an amount of Rs.1 lakh for period of three months and the complainant gave the same to the accused in cash towards the acknowledgement of which, the accused executed a separate receipt in favour of the complainant. In view of the aforesaid liability and after full and final settlement, the accused had issued a cheque bearing number 107745 dated 10.12.2018 for a sum of Rs.1,00,000/ drawn on the Union Bank of India, New Delhi (hereinafter referred to as the "cheque in question").
3. When the complainant presented the cheque in question for encashment, the same was returned unpaid upon presentation for the reason "Funds insufficient" vide return memo dated 11.12.2018. A legal notice dated 27.12.2018 was duly sent by the complainant to the accused in this regard, but to no avail as the accused failed to pay the cheque CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.2 of 13 amount within the prescribed period. Hence, the present complaint under Section 138 of NI Act was filed.
APPEARANCE OF ACCUSED AND TRIAL
4. The accused entered appearance in response to summons on 24.07.2019. Notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was served upon accused to which he pleaded not guilty and claimed trial thus, his plea of defence was recorded. The accused admitted his signature on the cheque in question and denied that the cheque in question has not been filled up by him. Accused further stated that he had taken an amount of Rs.19,000/ from the partner of the complainant namely Mr.Mittal and Mr.Mittal transferred the aforesaid amount in the account of accused from his bank account. Accused also stated that he had handed over a blank signed cheque and some blank signed documents. Accused stated that he had to give Rs.200 per day till 120 days for discharge of his liability towards which he had already paid Rs.21,000/ to Mr.Mittal and only Rs.3000/ was outstanding.
5. The complainant was crossexamined after allowing the oral submission of the counsel for the accused. After closing of complainant evidence, statement of accused under Section 313 Cr.P.C.
CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.3 of 13was recorded wherein the incriminating evidence were denied by him. The accused deposed that he have no liability towards the complainant who is partner of Mr.Mittal as he had taken a loan of Rs.19,000/ from Mr.Mittal on daily wages and he had paid Rs.200/ per day and total amount of Rs.21,000/ to Mr.Mittal.
EVIDENCE LED BY THE COMPLAINANT
6. To support his case, the complainant examined himself as CW1 and tendered his evidence by way of affidavit at the stage of complainant evidence.
7. Documentary evidence led by the complainant:
Ex.CW1/A : Evidence by way of Affidavit. Ex.CW1/1 : Original Receipt Ex.CW1/2 : Original Promissory Note Ex.CW1/3 : Cheque in question dated 10.12.2018 Ex.CW1/4 : Return memo dated 11.12.2018 Ex.CW1/5 : Legal Notice dated 27.12.2018 Ex.CW1/6 & Ex.CW1/7 : Postal Receipts. Ex.CW1/8 & Ex.CW1/10: Courier Receipt. Ex.CW1/9 & Ex.CW1/11: Tracking Report. Ex.CW1/12 : Envelope. CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.4 of 13 EVIDENCE LED BY THE ACCUSED
8. On the other hand, the accused examined himself as defence witness as DW2 and Mr.Ajay Kumar Mandal as DW1 in his favour. DW1 Ajay Kumar Mandal has tendered his evidence and exhibited the document Ex.DW1/A (colly) & Ex.DW1/B (colly) and the matter was fixed for final arguments.
ARGUMENTS
9. Counsel for the complainant had argued that loan of Rs.1 lakh was given to the accused against proper receipt/acknowledgment Ex.CW1/1 which is duly stamped and signed by the accused. Counsel for the complainant contended that accused promised to pay the loan amount within 3 months as mentioned in promissory note Ex.CW1/2, from which it is clear that he admits his liability towards the complainant. Counsel for the complainant further argued that accused had admitted signature on the cheque in question and the legal demand notice was also served on him.
10. In view of above all the requirements of section 138 NI Act of being met with in the present case. Hence, the accused be convicted.
11. Counsel for the accused has, on the other side argued that the complainant has filed a false and fabricated case against him.
CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.5 of 13Counsel for the accused submitted that although the complainant is known to the accused but no loan was availed by the accused from the complainant. Counsel for the accused has argued that the accused took a loan of Rs.19,000/ from Mr.Mittal, who is the partner of the complainant and the entire loan amount has been repaid by the accused except Rs.3000/. Counsel for the accused has stated that the cheque in question was not issued to discharge its legal liability but for security purpose only and the same has been misused by the complainant. It has also been contended by the counsel for the accused that Ex.CW1/1 and Ex.CW1/2 are forged and the same was not signed to discharge liability as alleged by the complainant. Hence, the present case deserves to be dismissed.
POINTS OF DETERMINATION
12. The following points of determination arise in the present case:
1. Whether the complainant has been successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
2. If yes, whether the accused has been successful in raising a probable defence?CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.6 of 13
THE LAW APPLICABLE
13. On perusal of record, and after giving my thoughtful consideration to the final submission of the parties. This court would like to narrate the legal principles relevant for adjudication of complaint under section 138 of NI act briefly, before appreciating the evidence led on behalf of both the parties.
14. The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 at page 422 held as follows:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
15. The threejudge bench of the Hon'ble Supreme Court in CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.7 of 13 Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability."
16. The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"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."
FINDINGS AND REASONING POINT OF DETERMINATION NO. 1:
17. It is not in dispute that the cheque in question was drawn on account maintained by the accused and was signed by the accused. The dishonournment of the cheque in question for the reason "funds insufficient" can be seen from the return memo i.e. Ex.CW1/4 which has not been disputed. The return memo being signed and stamped by the CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.8 of 13 concerned bank, the presumption of dishonour under section 146, NI Act arises. The receipt of legal demand notice i.e. Ex.CW1/5 has not been admitted by the accused during framing of notice under Section 251 Cr.PC. However, it is pertinent to note that the receiving of Ex.CW1/5 has been admitted by the accused later in his statement under Section 313 Cr.PC and then in his cross examination. Furthermore, the address mentioned on the bail bonds furnished by the accused is the same as on the legal demand notice. The legal notice being properly addressed and sent, gives way to the presumption under section 114 of Indian Evidence Act and Section 27 of the General Clauses Act that the legal notice has been received by the accused in light of the pronouncement in C. C. Alavi (supra). No evidence was led to rebut the aforesaid presumption on behalf of the accused save mere denial of the accused. Also, it is nobody's case that the accused tendered the amount entailed in the cheque in question upon entering appearance before this court in response to the summons issued in the instant case. The earlier plea of the accused regarding the nonreceipt of the legal demand notice is accordingly rejected as being inconsequential.
18. The ingredients necessary for raising the statutory presumptions being fulfilled, the presumptions under sections 139 and 118, NI Act that the cheque in question was issued for a legally CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.9 of 13 recoverable debt/liability stand activated.
19. Accordingly, the point of determination no.1 is decided in the affirmative.
POINT OF DETERMINATION NO. 2:
20. Now it is to be examined whether the accused has been able to rebut the statutory presumptions.
21. The case of the complaint is that the cheque in question was issued to return the loan amount of Rs.1,00,000/. The complainant has also placed on record document Ex.CW1/1 and Ex.CW1/2 in which the accused has acknowledged receiving as well as promised to return the loan amount to the complainant.
22. On the other hand, the case of the accused is that the complainant is an agent of Mr.Mittal and he took a loan of Rs 19,000/ from Mr.Mittal. As per the accused, Mr.Mittal asked for the cheque in question for security purpose only and the same has been misused when he could not repay Rs 3000/ towards the loan taken.
23. Accused entered into the witness box and got himself CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.10 of 13 examined. From his cross examination, it had emerged that, he did not know the complainant and he had no transaction with the complainant. The accused had deposed that he has no proof to show that he had repaid the loan taken from Mr.Mittal. To prove his case, the accused summoned witness from his bank who entered appearance and filed the bank documents Ex.DW1/A (colly) with Ex.DW1/B (colly). The accused contended that as shown in the Ex.DW1/B (colly) an amount of Rs.19,000/ was credited in his bank account and no entry showing credit of Rs.1,00,000/ exits. However, it is pertinent to note here that the case of the complainant is that he gave the loan to the accused in cash and not through cheque or bank transfer. So, the question of loan transaction of Rs.1,00,000/ being shown in his bank account becomes irrelevant. Other than this, the accused has not proved his transaction with Mr.Mittal neither by leading any cogent evidence or by examining Mr.Mittal himself.
24. Further, the accused has admitted that the cheque in question was signed by him but alleges that the same has been misused by the complainant. The accused denied all contrary suggestions given by the counsel for the complainant. The accused has also admitted his signatures on Ex.CW1/1 and Ex.CW1/2 but argues that these documents are forged as the complainant took his signatures on blank paper while CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.11 of 13 giving loan. This court finds no merit in the aforementioned contentions of the accused as these are mere bald assertions without any substantive evidence. The accused has not filed any complaint or case regarding misuse of the cheque in question. To prove this, there is no cogent and convincing material on behalf of accused.
25. On the other hand, this court finds that the complainant has proved his version by way of consistent and reliable oral testimony as well as documentary evidence.
26. Accordingly, in light of the aforesaid discussion, the point of determination no.2 is decided in the negative.
VERDICT
27. In view of the foregoing discussion, this court holds that complainant has established his case beyond reasonable doubt by proving all the ingredients under Section 138 NI Act by leading cogent evidence and the accused has failed to raise a probable defence.
28. Accordingly, accused Rahul Prasad is hereby convicted for offence punishable under Section 138 NI Act qua the cheques in CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.12 of 13 question in the present case.
29. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict. Announced in the Open Court on this 24th February 2023. This Judgment consists of 13 signed pages.
Digitally signed by KAWAL KAWAL SINGH
SINGH Date:
2023.02.24
16:18:49 +0530
(KAWAL SINGH)
Metropolitan Magistrate03 (South), NI Act Saket/New Delhi/24.02.2023 CT Cases 1619/2019 Anil Kumar v. Rahul Prasad Page No.13 of 13