Delhi District Court
Law Is Very Clear In This Aspect " In The ... vs . Palapetty on 25 July, 2012
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. RO828362008
Sh. Kushal Chand
S/o Sh. Gyan Chand
R/o B36B, Shivangi Kunj
Paschim Puri, Delhi63
...............Complainant
V/s
Mohd Ibrahim Kuraishi
S/o late Mohd. Kiphayutulla
R/o RZH95, Nihal Vihar
Nangloi, New Delhi110041
Also at
NG12, Jwala Heri Market
New Delhi110063
Also at:
WZ17A, Jwala Heri Market,
Paschim Vihar,
New Delhi110063
...............Accused
JUDGMENT
(1) Name and address of complainant Sh. Kushal Chand S/o Sh Gyan Chand R/o B36B, Shivangi Kunj Paschim Puri Delhi63 (2) Name of accused, Mohd. Ibrahim Kuraishi parentage and address S/o late Sh. Mohd 1/12 ......2......
Kiphayutulla
R/o RZH95, Nihal Vihar
New Delhi110041
(3) Offence complained of or proved : U/s 138 N. I Act
(4) Plea of accused: : Pleaded not guilty
(5) Date of institution of case: : 29.08.2008
(6) Date of transfer : 19.05.2011
(7) Date of reserve of order : 10.07.2012
(8) Final order : CONVICTION
(9) Date of Final Order : 25.07.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The present complaint is filed Under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that complainant and the accused were in friendly terms and relations with each other and accused borrowed on friendly terms the sum of Rs. 2,50,000/ from the complainant herein for the period of 3 months for the purpose of purchasing land measuring 35 sq. Ft out of khasra no. 72/21 situated in Nangloi.
Accused assured that the said loan amount shall be returned within 3 months and accused has also given a pronote that in case he could not return the money upto 30.07.2008, he would make complainant the partner of 63% in his house. But the accused has not paid the loan amount nor he has given any portion in any property. After great persuation and repeated requests the accused has issued two cheques in the name of complainant. One of them is the subject matter of this complaint. The cheque in 2/12 ......3....
question bearing no. 302131 dt. 30.01.2008 issued in the name of complainant was issued in the name of complainant was issued from State Bank of India, Jwalaheri, Delhi has been issued by the accused for the sum of Rs. 2,10,500/. When the complainant presented the above mentioned cheque to his bank, the said cheque was dishonoured with the remarks "insufficient funds " vide Memo dt. 29.07.2008. That the above said cheques were delivered by the accused to the complainant towards the payment of a legally enforceable and unequivocally admittedly liability payable in money. On 13.08.2008, the complainant sent a legal notice to the accused and finally complainant has filed the present complaint case with the submission that accused be summoned, trial and punished accordingly to law.
In his pre summoning evidence complainant has examined himself on affidavit as CW1/A. Original cheque bearing no.302131 dt. 30.01.2008 for sum of Rs.2,10,500 which is Ex CW1/1, drawn on SBI, Jawala Heri, Delhi, original cheque returning memo dt. 29.07.2008 which are Ex CW1/2 wherein it has been stated that cheques in question is dishonoured due to "Insufficient Funds ", legal demand notice dated 13.08.2008 which is Ex. CW1/3, UPC is Ex CW1/4 and complaint is Ex CW1/5 .
Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which the accused pleaded not guilty and claimed trial and stated that " I do not plead guilty and claim trial since there is no liability towards the complainant. However, the cheque bears my signatures".
Complainant has examined himself in his post notice evidence by way of affidavit. He adopted his complaint in his evidence. Thereafter, he was cross examined on behalf of accused. Relevant portion of his cross examination is prodouced below: " It is correct that in the memo of parties filed by me with the 3/12 .....4....
complaint I had given three addresses of the accused. Since the accused had opened an account in the State bank of India, in which he has mentioned his residential address as WZ17A, Jawala Heri, Market, Accused has got prepared his ration card at the address NG12, Jwala Heri Market, Paschim Vihar and used to take his gas cylinders on this address and presently accused is residing at RZH95B Nihal Vihar, Nangloi, New Delhi since 2008 and he got prepared his VoterI card and has got an electricity connection there, so I had given all these three addresses in the memo of parties filed by me with the complaint. Since February, 2008 accused used to reside at RZH95B Nihal Vihar, Nangloi, Delhi, even at the time of filing of present complaint, accused is residing at this address. It is incorrect to suggest that the legal notice was sent only at RZH95 Nihal Vihar, Nangloi, Delhi, (confronted with Ex.CW1/3 and Ex.CW1/4). Vol. I had sent the legal notice to the accused at all the abovesaid three addresses. I had sent the legal notice through my counsel so I do not know at which address it was sent. I further state that I do not know whether my counsel had filed proof of delivery of legal notice which he had filed on my behalf.
I know the accused Mohd. Ibrahim for the last 16 years. Presently, I worked in the personal loan department of ABN Amro Bank. At the time of purchase of the house by the accused, I had given him Rs. 2,50,000/ in installments from 27.01.2007 to 17.03.2008. It is correct that the above mode of payment of loan is not mentioned in my complaint.
The accused had purchased the house in the name of his wife with the payment made by me on 08.10.2007 in which I also stood as witness. On 17.03.2008, I gave Rs. 1,11,000/ to the accused. The details of the advancement of loan by way of cheque is not on record in 4/12 .....5....
this file but the same is in another connected case and I can file and produce in this case also, if required.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt;
and
(iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case.
The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; 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 are rebuttable in nature.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] 5/12 .......6....
" Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to 6/12 ......7....
show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the accused and this they had to discharge at the trial.
Considering the aforesaid judgment as the complainant has initially discharged his burden of proof. In this case, now the onus has shifted to the accused for rebutting his liability towards the complainant.
Thereafter, statement of accused under section 313 CrPC was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that " I have not taken any loan from the complainant. The cheque was issued by me to the complainant for getting the loan from ABN Amro Bank, in which the complainant was working. The said cheques was dishonoured. I have not received any legal notice. I have not received any loan despite issuing cheque to the complainant, therefore, there is no liability towards the complainant"
In his statement u/s 313Cr PC the accused has preferred not to lead defence evidence.
At this stage of final arguments, application U/S 311 Cr.P.C. was filed on behalf of the complainant which was allowed by the separate order.
Therefore, the complainant examined 3 witnesses including himself as CW1. In his chief examination he has tendered his evidence by way of additional affidavit 7/12 .......8.....
which is Ex.CW1/A1. He also relied upon documents Marks A1 to A4 and Ex.CW1/B (colly) and CW1/C. He was also cross examined and the relevant portion of his cross examination is produced below: " I have worked in ABN Amro Bank in Personal Loan Department for four years. It is correct that there is no signature of accused on reply to the legal notice filed by me. Vol. It was sent by counsel of the accused and signature of his counsel are there. It is correct that the address of the accused given in reply to the legal notice Ex.CW1/B is correct. The reply to legal notice was sent through courier and his courier number is written on the envelope of reply to the legal notice. After giving the cheque towards the loan amount to the accused of Rs. 65,000/, the accused gave me a copy of pass book of his account after clearance of the said cheque. I retained the papers of the property of the accused which I returned after 23 days of the payment of loan, a the accused requested me to get the meter connection for his property".
Thereafter, CW2 Sh. Sachin Mann, probationary officer, Allahabad Bank, was examined and he has stated in his chief examination that "I have brought the summoned record i.e, statement of account dated 10.03.12 of Aafaq Ahmad and Mohd. Ibrahim Qureshi bearing account no. SB725060. The same is Ex.CW2/1. I have also brought a certified copy of cheque deposit slip dated 27.09.07 of cheque no. 186269 which is Ex.CW2/2".
Thereafter, he was cross examined and relevant portion of his cross examination is produced below:
8/12
.......9.....
" I do not have any authority letter on behalf of the bank but I am an employee of the bank. I am a newly recruited employee, therefore, Ido not ahve any identity card. I lookafter the work of clearance of cheques. The exhibits have been certified by the Sr. Manager of the bank. Computer prints of the said copy were taken in my presence".
CW3 Sh. Vinay Kumar Rai, Sales Officer, HDFC Bank Ltd. has stated in his chief examination that "I have brought the summoned record i.e, certified copy statement of account w.e.f. 29.12.04 to 26.05.09 of account holder Kushal Chand bearing account no. 03271050001093. Though I have received two summons but I have brought only one certified copy of statement of account in the name of Sh. Kushal Chand. The same is Ex.CW3/1 in CC no. 14580/1/08. the relevant transaction appears at point A on Ex.CW3/1"
Thereafter, he was cross examined and relevant portion of his cross examination is produced below:
" I do not have any authority letter on behalf of the bank but I am an employee of the bank. It is correct that my duty does not pertain to the statement which I have brought but as per directions of my Supervisor, I have brought the said document on record. These documents were given to me by my supervisor in the morning today. It is correct that the said documents have been attested by Ms. Jyoti, Personal Banker, Welcome Desk and it bears the stamp of the bank with initial. The computer prints of the said copy were taken in my presence".
Oral arguments tendered by the Complainant as well as Ld. counsel for the accused were heard at length. Written submissions has also been filed by the Ld. counsel for accused.
First defence taken by the accused that legal notice was not served to him. The 9/12 ......10.....
law is very clear in this aspect " In the judgment of the C. C. Alavi Haji Vs. Palapetty Muhammed & Anr (S. L. P (Criminal) No. 3910 of 2006] Supreme Court of India held:
" 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 receipt of summons from the court in respect of the complaint U/s 138 of the Act, make payment of the cheque amount and submit to the court that he had made 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 U/s 138 by ignoring statutory presumption to the contrary U/s 27 of the G. C Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislature. As observed in Bhaskaran a case (supra), if the giving of notice in the 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 from legal consequences of Section 138 of the Act".
The second defence taken by the accused is that he has given a cheque in question to the complainant as a security for obtaining loan from the bank and the complainant has misused his cheques. Mere plausible defence is not sufficient to rebut the presumption U/s 139 and it has to be more than it and the accused has failed to being on record anything to show that aforesaid cheques were given as security.
The accused has further stated that he has reported this matter to the police but 10/12 .....11......
there is nothing on record i.e, DD entry, any FIR etc. to show that the matter was reported to the police for misuse of the cheque. The accused has further admitted in his cross examination as DW1 that the cheques were undated although the amount was filled in by him. The law is very clear in this aspect. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: "Section 20 of N.I At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and he extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357: (2006) CrLJ3140:
(2007) 6 Karn LJ 237 (Kant).
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475, where it was held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of section 87 merely by writing details on cheque".
It is also pertinent to mention here that the good relations with the complainant is not disputed by the accused as he has stated in his cross examination as DW1 that a house was purchased by his wife in the year 2007 and the present complainant Kushal Chand was the witness in that transaction.
It has been submitted by the Ld. Counsel for the accused that the ingredients of 11/12 ......12....
Section 138 of NI Act are not fulfilled by the complainant as he has not shown the requisite proof that from where he has given the loan amount. But after perusal of the entire record revealed that after allowance of application U/S 311 Cr.P.C., the complainant has brought on record the documents showing that he has given loan to the accused in installments as well as the presumption U/S 118 (a) and U/s 139 of NI Act is in favour of the complainant which has not been rebutted by the accused even on the touch stone of preponderance of probabilities.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must 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".
This court is of the considered opinion that complainant has proved its case beyond reasonable doubt, therefore, accused is being covicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 25.07.2012. (SHEFALI BARNALA TANDON) METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI 12/12 IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
CC No. 14580/1/08 ID No. RO828362008 Kushal Chand Vs. Mohd. Ibrahim Kuraishi U/s. 138 Negotiable Instrument Act 26.07.12 ORDER ON SENTENCE Present: Complainant along with Ld. counsel Sh. Naseem Akhtar Convict with proxy counsel Sh. Sumit Kaushik Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is 65 years old and he is having family to support which consists of his wife and three minor children. It is further stated that lenient view should be taken against the convict.
Counsel for the complainant has stated that the transaction involved in the present case between the parties pertains to the year, 2008 for which cheques in question were given by the accused person in discharge of his liability, therefore, maximum fine be imposed upon the convict. It is also stated that total amount involved in all the cheques in the present case is around Rs. 2,10,500 / which is due since 2008. It is further submitted that the convict is previously convicted in the same connected matter between the parties, so severe punishment should be granted to him.
I have heard the submissions and carefully perused the record. Complaint regarding present cheques in question is pending since 2008 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act since the cases of dishonour of the cheque are on high rise in the society and the same shall not serve a deterrent to others.
Contd.......
......2....
Considering the totality of circumstances, convict is sentenced to simple 13/12 imprisonment for a period of two years and is further ordered to pay compensation to the complainant for an amount of Rs. 4,00,000 (Rs. Four lac only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 3 months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 40,000/ with surety of like amount. Bail bond furnished and accepted till 27.08.12.
Copy of this order be given to both the parties free of cost. Bail bonds be put up on 27.08.12 File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon)
26.07.2012. MM (N/W)/Rohini Courts, Delhi.
14/12