Delhi District Court
Amrit Pal Singh vs Murtuja Page 1 Of 16 on 27 May, 2022
IN THE COURT OF SHRI HARSHAL NEGI, MM-05 (NI
ACT), SOUTH-WEST DISTRICT, DWARKA COURTS
NEW DELHI
CC No. 94/2018
CNR No.DLSW02-037475-2017
Amrit Pal Singh
S/o Late Sh. Kuldeep Singh
R/o Flat No. 39, Panchdeep Apartments,
F-Block, Vikas Puri
New Delhi - 110018 ... Complainant
Versus
Sh. Murtuja
S/o Mohd. Mukeem
R/o House No. C-202, J J Colony,
Shiv Vihar,
New Delhi-110059 ... Accused
Offence complained of : U/s 138, NI Act, 1881
Date on which the complaint : 22.12.2017
was instituted
Plea of the Accused : Pleaded not guilty
Date of Pronouncement of judgment : 27.05.2022
JUDGMENT
1. Tersely put, the case of the complainant is that the accused approached him in the month of March 2017 for a friendly loan of Rs 85,000/- and the complainant advanced him Rs 85,000/- in cash. The accused issued cheque bearing no 541875 of Rs 85,000/- dated 09.10.2017, drawn on Bank of Maharashtra, Vikas Puri , New Delhi 110018 as payment, which forms the subject matter of the present case. The complainant deposited the given cheques through his bankers i.e. Corporation Bank, Vikas Puri New Delhi, however, the same was returned unpaid vide return memos both dated 10.10.2017 with remarks "Refer to Drawer". Mandatory statutory legal demand notice dated 08.11.2017 was served by the complainant vide postal receipt CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 1 of 16 dated 08.11.2017 and delivery report. The above said factual matrix led to the filing of the present complaint.
Material on Record
2. The accused entered appearance on 05.05.2018. Notice under Section 251 Crpc dated 10.07.2018 was framed accordingly to which the accused pleaded not guilty and claimed trial. The accused in his Notice under Section 251 CRPC stated that he know the complainant and have not taken loan of Rs 85,000/-. He stated that he has taken the loan of Rs 30,000/- from the complainant in the year 2017 for treatment of his daughter and that he has already paid that loan. He stated that the cheque in question was taken as a security and bears his signature and denied any liability. He stated that he have paid Rs 34,000/- against the loan of Rs 30,000 through installments which has also been acknowledged by the complainant in the record/diary maintained for loan.
3. The Complainant relied on the following documents:
a. Original Cheque Ex CW 1/1 b. Original returning memos Ex CW 1/2
c. Copy of Legal Notice Ex CW 1/3
d. Original postal receipts Ex CW ¼
e. Tracking Report Ex CW 1/5
4. The complainant adopted his pre-summoning evidence as post summoning evidence on 09.07.2019 and was cross examined on 09.07.2019. The complainant in his cross examination stated that he has studied up to 6 th standard and working in a weekly bazaar. He stated his monthly income Rs 10,000/- to Rs 12,000/-. He stated that he know the accused through Mr Iqbal who is the relative of the accused. He stated that the accused along with Iqbal came to his house on March 2017 for financial help for the purpose of business due to CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 2 of 16 financial crises. He stated that the accused requested financial help for 7 months. He denied the suggestion that the accused took the loan of Rs 30,000/-. He further denied the suggestion that the accused had to repay Rs 36,000/- towards the loan of Rs 30,000/- in 12 equal installments of Rs 3000/-each. He stated that he did not remember the exact date when accused availed financial help and that he has given Rs 85,000/- in cash to the accused. He affirmed that the cheque was not issued on 09.10.2017. The complainant was then confronted with a card which is Ex DW 1/1 and the complainant stated that he is not aware of the same. He further denied the suggestion that Ex DW 1/1 does not bear his signature. He denied the suggestion that he is working as a financer and given loan to the accused on interest @10% per annum. He denied the suggestion that Iqbal was is manager and used to collect money on his behalf. He stated that he was not income tax payee at that time and have kept Rs 85,000/- in his house in case of any contingency. He denied the suggestion that he did not have sufficient means to give Rs 85,000/- as financial help.
5. Thereafter, the statement of the accused under Section 313 Crpc was recorded on 24.07.2019 and all the incriminating evidences were put to him. In his statement the accused stated that he had taken Rs 30,000/- and have return Rs 36,000/- to the complainant at an installment of Rs 3000/- per week. He admitted his signatures on the cheuqe and stated that the cheque in question was given as security.
6. He thereafter opted to lead his defence evidence and examined two witnesses. He examined himself as DW 1 and one Shivji Yadav as DW 3.
CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 3 of 167. The accused as DW 1 was examined on 04.02.2021 and stated that he had taken loan of Rs 30,000/- for operation of his daughter in July 2017 and he was making regular payments weekly to the complainant and the same has been duly noted by the complainant himself in the document Ex DW1/1. He further stated that he made arrangement of Rs 7,000/- and Rs 9,000/- in cash and handed over the same to the complainant in and around 9th Month of 2017. He further stated that complainant had taken security cheque from him in lieu of RS 30,000/- with the assurance that the same would be returned once payment is made.
8. DW 1 was cross examined on 04.02.2021 wherein he stated that he is a taxi driver and affirmed that he approached complainant for loan of RS 30,000/-. He further affirmed that he approached the complainant in March 2017. He denied the suggestion that he had sought Rs 85,000/- from the complainant for 7 months. He voluntarily stated that he took loan of Rs 30,000/-. He denied the suggestion that he took loan of Rs 85,000/- in cash. He further stated that he had not filed any medical record of his daughter. He denied the suggestion that Ex DW1/1 is forged and fabricated and does not bear the signature of the complainant. He further stated that he had not filed nay complaint against the complainant after his refusal to return the security cheque. He stated that Iqbal is manager of the complainant. He stated that Iqbal is not his relative and have no connection with him He affirmed that he received the loan from the complainant.
CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 4 of 169. DW 3 i.e. Shivji Yadav was examined on 19.03.2021. In his examination he stated that he know the accused for the last 10 yrs since they used to work together in Green Tourist a Taxi Company. He further told that the accused approached him for some financial assistance on account of her daughter medical health. He stated that he met on Iqbal at lunch in Gurugram. He further stated that the complainant and Iqbal opened an office in the inauguration of which he and the accused were also present. He further stated that he also had taken financial help of Rs 10,000/- from the complainant on 3rd July 2017 and he also recommended the accused to approach complainant for financial help. He further stated that an amount of Rs 30,000/- was paid by the complainant to the accused in his presence and also in the presence of Iqbal. He further stated that it was agreed that an amount of Rs 36,000/- would be paid back in furtherance of the amount and that the accused had returned the amount. On Court question he stated that Rs 34,000/- was paid back by the accused. He further stated that repayment was noted by the accused in a card and that payment was made to Iqbal who is manager of Complainant.
10. DW 3 was cross examined on 19.03.2021. He stated that he studied till 8th standard and presently not working in Delhi and for last 8 months he is residing in his village. He stated that he came to Delhi in 2002 and met the accused in relation to job. He stated that he was working with Green Tourist Company since 2004 and met the accused in and around 2008. He also stated that Iqbal was also a taxi driver. He denied the suggestion that Iqbal is relative of the accused. He denied the suggestion that no office was inaugurated by the complainant along with Iqbal. He stated that the accused CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 5 of 16 approached him for financial assistance in 2017 with respect to medical assistance of his daughter. He stated that loan was given by complainant to the accused in July 2017. He voluntarily stated that loan was given around 1 week after he had taken loan from the complainant. He denied the suggestion that neither he nor Iqbal was present at the time when loan was given to the accused. He denied the suggestion that the actual amount was Rs 85,000/- instead of Rs 30,000/-. He further denied the suggestion that there was no agreement between the accused and the complainant of repayment of Rs 36,000/-. He voluntarily stated that an amount of RS 3000/- weekly was to be paid in installments. He further denied the suggestion that no amount of Rs 3000/- weekly was agreed to be paid by the accused. He voluntarily stated that sometime Iqbal and sometime complainant used to visit the accused for taking the repayment amount in installments. He denied the suggestion that complainant never visited the accused for repayment of the loan amount. He further stated that he do not know as to whether the accused used to make entries with respect to the repayment of loan amount. On Court question he stated that a yellow card was issued on behalf of the complainant by Iqbal to him and he used to make repayment of the installments and that Iqbal used to write the amount received and signed the said yellow card.
11. Arguments adduced by Ld Counsels of both the parties have been heard. Evidences and documents on record perused carefully.
Law Point CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 6 of 16
12. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under Section 138 NI Act. A bare reading of Section 138 NI Act reveals that in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:-
1. that a person drew a cheque on an account maintained by him with the banker;
2. that such a cheque when presented to the bank is returned by the bank unpaid;
3. that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier;
4. that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and
5. such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.
(Para 26, N. Harihara Krishnan vs J. Thomas, (2018) 13 SCC 663, referred to in Himanshu vs B. Shivamurthy (2019) 3 SCC 797) Section 138 is to be read with the presumption, being a rebuttable presumption, as contained in Section 139. Section 139 provides that:
"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."CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 7 of 16
13. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under Section 138 NI Act and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 NI Act. Section 139 is an example of reverse onus clause which usually imposes an evidentiary burden and not a persuasive burden. In other words, Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non-existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under Section 139, the standard of proof of doing so is that of "preponderance of probability"
(Rangappa vs Sri Mohan (2010) 11 SCC 441). Once execution of cheque is admitted, it is a legal presumption under Section 139 of Negotiable Instrument Act, the cheque was issued for discharging legally enforceable debt.
14. Attention is also invited to Section 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. Section 118 of the N.I Act provides:-
"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;"
15. Hence, it can be seen that from its very inception a presumption that the cheque was issued in discharge of a debt or other liability CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 8 of 16 subsists in favour of the Complainant and onus rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability.
16. Further, the accused in a trial under Section 138 has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed(Para 20, Kumar Exports vs Sharma Carpets (2009) 2 SCC 513). Another defence that can be raised by the accused is that even if there was a consideration and debt in existence, he had already made the payment of that consideration and debt.
Analysis & Conclusion
17. Having laid down the factual matrix and the legal position, let us now advert to whether the ingredients of Section 138 NI Act has been made out by the Complainant and whether the accused has been able to rebut the presumption which is existing against him or whether he has made good any of the two options given in Kumar Exports case as mentioned above.
18. In order to prove the case, the complainant led his evidence by way of affidavit. The complainant examined himself as CW-1 by way of affidavit. Complainant in his evidence deposed that the accused approached him in the month of March 2017 for a friendly loan of Rs 85,000/- and the complainant advanced him Rs 85,000/- in cash. The accused issued cheque bearing no 541875 of Rs 85,000/- dated 09.10.2017, drawn on Bank of Maharashtra, Vikas Puri , New Delhi 110018 as payment, which forms the subject matter of the present case. The complainant deposited the given cheques through his bankers i.e. CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 9 of 16 Corporation Bank, Vikas Puri New Delhi, however, the same was returned unpaid vide return memos both dated 10.10.2017 with remarks "Refer to Drawer". Mandatory statutory legal demand notice dated 08.11.2017 was served by the complainant vide postal receipt dated 08.11.2017 and delivery report.
19. On the close scrutiny and appraisal of the cheques bearing no 541875 of Rs 85,000/- dated 09.10.2017 marked as Ex CW1/1 drawn on Bank of Maharashtra, Vikas Puri, New Delhi 110018, it clearly transpires that the same had been issued as per the above details. The cheques in question got dishonored vide returned unpaid vide return memos both dated 10.10.2017 with remarks "Refer to Drawer" marked as Ex CW 1/2. Legal notice Ex.CW-1/3 further proves that the same was issued on 08.11.2017 and dispatched vide postal receipt Ex.CW- 1/4 and delivered through delivery report Ex CW 1/5.
20. As a matter of fact the address of the accused which finds mention in the legal notice is the same address which has been disclosed by the accused in his Notice under Section 251 CRPC, statement under Section 313 CRPC as well in his bail bonds.
21. It is apposite at this stage to set forth authoritative pronouncements regarding deemed service of legal notice to the accused in terms of Section 138 NI Act. The Hon'ble Supreme Court in K Bhaskaran vs Sankaran Vaidhyan Balan (1999) 7 SCC 510 in Para 18 observed thus:
"......'Giving Notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the notice to the drawer at the correct address....."CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 10 of 16
22. Further, in Para 24 of the above said judgment the Hon'ble Supreme Court held that where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of General Clauses Act could profitably be imported in such a case. It was further held that in this situation service of notice is deemed to have been effected on the sendee.
23. Law with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly put forth by the Hon'ble Supreme Court in C C Alavi Haji vs Palapetty Muhammed (2007) 6 SCC 555. Para 13 & 14 of the judgment is worth mentioning as under:
"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 11 of 16 unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business
24. Thus, in view of the law as above said and the fact that the address of the accused which finds mention in the legal notice being the same address which has been disclosed by the accused in his Notice under Section 251 CRPC, statement under Section 313 CRPC and his bail bonds, the mandatory statutory legal notice marked as Ex CW 1/3 is deemed to have been served on the accused in the present case. Thus, the factum of issuance and receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts.
25. It has been proved that despite issuance of legal notice, the accused had failed to make the payment of the cheque amount. The perusal of these documents conclusively established that the accused had issued the cheque which was dishonorued due to "Refer to Drawer". The evidence led by way of affidavit by the complainant has been fully substantiated with the documentary evidence. Ergo, the complainant has proved that despite the statutory requirement of law as required under the Act the accused failed to honour the cheque amount within the statutory period.
26. It is not in dispute that the cheques in question was signed by the accused himself as the reading of Notice under Section 251 Crpc as well as his statement under Section 313 CRPC establishes that the accused issued the cheques in question and signed the same. The law is no longer res integra that even if a signed blank cheque is presented to the payee and payee fill up the amount and other particulars, this in CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 12 of 16 itself would not invalidate the cheque and the accused would still have to prove that the cheque was not in discharge of a debt or liability by adducing evidence (Bir Singh vs Mukesh Kumar (2019) 4 SCC 197).
27. On the above said, the ingredients of Section 138 NI Act has been made out by the Complainant. Further, the accused has admitted his signatures on the cheque and also the account belongs to him.
28. Now, the next scrutiny is with respect to the two options which are available to the accused as per the dicta of Kusum Exports case. Firstly, to show that consideration and debt did not exist and secondly, that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. It is trite law that bare denial of passing of the consideration and existence of debt apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. Another defence that the accused can raise is that though there was an existence of debt, however, he has already returned the loan amount/debt.
29. A reading of the Notice under Section 251 CRPC, statement under Section 313 CRPC as well as his evidence as DW 1, the defence of the accused can be summarized as under:
i) He has not taken a loan of Rs 85,000/- but of Rs 30,000/-,
ii) He has returned an amount of Rs 36,000/- to the complainant by making weekly installments of Rs 3000/-.
30. At the outset it is noted that there is admittance on part of the accused with respect to the existence of a legally enforceable debt i.e. an amount has been taken by him from the complainant. The only CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 13 of 16 defence is that the amount is of Rs 30,000/-. In order to rebut the presumption which is in existence in favor of the complainant and to show that the amount was of Rs 30,000/- and not Rs 85,000/-, the accused has placed reliance on the testimony of DW 3 as well as Ex DW1/1.
31. What is to be noted is that there exists no mention of DW 3 or his role by the accused in his Notice under Section 251 CRPC, Statement under Section 313 CRPC nor in his own testimony as DW 1. DW 3 just crops up in the list of witnesses and was examined. DW 3's name or role did not appear anywhere. It is apposite to note certain statements which were made by DW 3 in his testimony, as under:
"The accused approached me for some financial assistance on account of her daughter's medical health"
"I also recommended the accused to approach the complainant for financial help"
"An amount of Rs 30,000/- was paid by the complainant to the accused in my presence and also in the presence of one Mohd Iqbal"
"It was agreed that an amount of Rs 36,000/-would be paid back...the accused has returned the amount"
32. DW 3 claims himself to be the person in whose presence Rs 30,000/- was given by the complainant to the accused. However, it begs to reason that if that be so, then why his role and name was never mentioned by the accused throughout the trial, be it under Section 251 CRPC, statement under Section 313 CRPC as well as his own testimony as DW 1. All these three are absolutely silent on DW 3. It is beyond reason that why such an important defence witness finds no mention in the statements of the accused.
CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 14 of 1633. At this juncture it also pertinent to note the statement given by DW 3 in his cross examination dated 19.03.2021, which are as under:
"It is wrong to suggest that not a single penny has been paid by the accused in furtherance of repayment of the amount"
"Voltd- Sometimes Mohd Iqbal and sometimes the complainant used to visit the accused for taking repayment amount in installments"
"It is wrong to suggest that complainant never visited accused for repayment of the loan amount"
"It is wrong to suggest that no amount of Rs 34,000/- has been paid by the accused"
34. A look to the above said response by DW 3 would reflect that the return of the amount of Rs 36,000/- also happened in the presence of DW 3. However, nowhere in his examination he stated that it was in his presence the weekly amount of Rs 3000/- was returned by the accused to the complainant. No details as to when and where those weekly repayment were given by the accused to the complainant has been mentioned or elaborated upon.
35. Therefore, the statement of DW 3 on the touchstone of above cannot be read to be credible so as to create a reasonable doubt for rebuttal of presumption under Section 139 NI Act.
36. Now, the accused has also relied on Ex DW 1/1. This document includes certain amounts and the name of the complainant as well as the accused. However, who is the author of this document and whose handwriting and signature exists in this document still could not be deduced or ascertained. This document contains a total of 8 entries under the heading of "Date" "Rs." And "Signature". Name of the complainant finds mention twice under the heading of "Signature"
CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 15 of 16against the amount of Rs 7,000/- an Rs 9,000/-. Now, the complainant in his cross examination dated 09.07.2019 denied the suggestion that Ex DW 1/1 does not bear his signature which in other words means that he admitted his signature on this document at the given entries. However, the remaining entries i.e. entry 1 to 5 and 7 reflects "Mir" under the heading of "Signature". The identity of this person cannot be deduced nor has anything come on record through the testimonies of the parties as to the identity of this person. Thus, this document also by itself does not come to the rescue of the accused to establish that the loan amount is of Rs 30,000/-.
37. Thus, neither on a reading of the complaint, nor from the evidence led by the complainant including the cross examination of the complainant, and evidence led by the accused, has the accused been able to create a reasonable doubt with regard to the quantum of the outstanding debt which can lead to the fulfillment of both the option viz, the debt did not exists or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. Both the above said tests remained wanting at the end of the accused. Neither the accused has been able to show that the loan was of Rs 30,000/- and not of Rs 85,000/-or that he had already made the payment of the loan amount.
38. Therefore, in view of the oral and documentary evidence brought on record the accused has failed to rebut the presumption and it is clear that the accused had committed an offence under Section 138 of the Negotiable Instruments Act.
39. On the basis of the above said analysis and conclusions arrived, the accused namely Mohd Murtuja S/O Sh Mohd Mukeem stands CC No. 94/2018 Amrit Pal Singh Versus Murtuja Page 16 of 16 convicted for the commission of the offence punishable under Section 138 of the Act.
40. A copy of this judgment be given free of cost to the convict.
41. A Copy of this judgment be also uploaded on the CIS Server forthwith.
Digitally
signed by
This Judgment contains 17 pages. HARSHAL
Every Page of this Judgment has been signed by me. HARSHAL NEGI
NEGI Date:
2022.05.30
16:31:30
Announced in the open court +0530
on this day of 27th May, 2022
(HARSHAL NEGI)
MM(NI Act)-05/South-West District
Dwarka Courts/New Delhi
27.05.2022
CC No. 94/2018
Amrit Pal Singh Versus Murtuja Page 17 of 16