Delhi District Court
Vikas Aneja vs . Arun Ahluwalia on 5 March, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK:
METROPOLITAN MAGISTRATE (CENTRAL)-04
TIS HAZARI COURTS, DELHI
C.C NO. : 868/SR/14
PS : Sarai Rohilla
U/s : 138 N.I.Act
Vikas Aneja Vs. Arun Ahluwalia
1. Unique case ID No. : 02401R0196772009
2. Date of Institution of Case : 11.05.2009
3. Date on which case reserved : 05.03.2015
for judgment
4. Date of Judgment : 05.03.2015
5. Name of the complainant : Vikas Aneja
S/o Sh. K. Aneja
Through his Attorney Smt.
Anita Aneja
R/o 5, Sri Nagar Extn.
Ashok Vihar Road, Delhi.
110052
6. Name of the accused and : Arun Ahluwalia @ Amit,
his parentage and residence R/o F-10, First Floor,
Vijay Nagar, Delhi.
7. Offence complained of : U/s 138 of the Negotiable
Instrument Act, 1881
8. Plea of the accused : Pleaded not guilty
9. Final Order : Accused Convicted
JUDGMENT
C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 1 of 13 BRIEF FACTS OF THE CASE ARE :-
1. That the complainant is student and mother of the complainant is known to wife of accused and wife of accused was running a beauty parlor in the name and style " Gazebo" in Kamla Nagar. The accused along with his wife has requested the complainant for friendly loan of Rs.10,00,000/- due to acute financial crisis with the promise to return the same within a period of three months at which on 18.04.2008, complainant advanced Rs.10,00,000/- to the accused and accused executed promissory note in favour of the complainant. After expiry of three months, the accused not returned the loan amount of Rs.10 lakh to the complainant and issued a cheque dated 13.10.2008 for Rs.
6,25,000/- with the assurance that the balance amount will be paid on 17.10.2008. On 17.10.2008, accused gave undertaking to the complainant for repayment of entire loan amount on 19.10.2008 at 07:00 PM. On 19.10.2008, instead of paying the entire loan amount, the wife of the accused gave two cheques of State Bank of India, Kamla Nagar bearing No. 580419 and 580420 for amount of Rs.5,00,000/- each but the cheques were wrongly filled with the particulars and accused has filled the C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 2 of 13 payees column with the amount of cheuqe which was structurally defected. The complainant returned those cheques to the accused and accused again issued two fresh cheques drawn at the State Bank of India, Kamla Nagar, Branch bearing the number 580426 and 580427 both dated 20.11.2008 for the amount of Rs. 500,000/- each. The complainant present those two cheques through his banker Punjab National Bank, Ashok Vihar branch on 17.01.2009 but those were returned on 17.01.2009 with the remark "Payment stopped by drawer" vide cheque return memo dated 17.01.2009. On the assurance of accused, the cheques were again presented by the complainant through his banker the Punjab National Bank, Ashok Vihar branch but said cheques were returned by his banker on 05.03.2009 with the remarks "Payment stopped by drawer" vide cheque return memo dated 05.03.2009.
2. Complainant issued the legal demand notice dated 04.04.2009 through registered AD and UPC. Legal notice was duly served upon the accused.
3. The complainant got examined himself as CW1 and tendered the evidence by way of affidavit and proved the same as Ex.C-1. CW1 also proved the cheque No. 580426 dated C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 3 of 13 20.11.2008 amounting to Rs.500000/- as Ex.CW1/4, cheque No. 580427 dated 20.11.2008 amounting to Rs.500000/- as Ex.CW1/5, both the cheque return memos dated 05.03.2009 for cheque no. 580426 and 580427 as Ex.CW1/6 (colly.), legal demand notice dated 04.04.2009 as Ex.CW1/7, registered postal receipt dated 04.04.2009 as Ex.CW1/8 and UPC as Ex.CW1/9 and the original returned postal envelop with AD Card as Ex.CW1/10. CW1 also placed on record the copy of promissory note dated 18.04.2008 as Mark C, photocopy of cheque bearing No. 580419 and 580420 dated 30.09.2008 as Mark A and Mark B. CW1 also placed on record the undertaking dated 17.10.2008 as Mark D, photocopy of cheque no. 580425 dated 30.10.2008 as Mark E and one hand written copy of some transactions as Mark F collectively.
4. After perusal of pre summoning evidence by the complainant the summons were issued to the accused and on the appearance of the accused the notice was framed against him on 03.09.2010 to which accused not pleaded guilty and claim trial.
5. INGREDIENTS OF OFFENCE UNDER SECTION 138 NI ACT:
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a) The accused has issued the cheque in question.
b) The cheque in question was issued for the discharge, in whole or in part, of any debt or other liability.
c) The cheque in question was returned dishonored on presentation.
d) The accused failed to make the payment of the cheque amount within the statutory period after being served with the legal notice.
Whether the case of the complainant fits in the frame of the ingredients of section 138 NI Act.
Apparently, the accused has admitted to have issued the cheques in question though he alleged that the cheques were given for security purpose. It is also not in dispute that the cheques were returned dishonoured for insufficient funds. Therefore, the only facts that need to be analyzed are regarding the legal liability for which cheques were issued and the service of the demand notice. These two facts have also been challenged by the accused and the accused led his defence to bring forth his point.
LEGAL LIABILITY FOR ISSUANCE OF
CHEQUES:
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So far as the fact of existence of legal liability for issuance of cheque is concerned, it is apposite to note the case law on this point. In the matter of "Rangappa v. Mohan" AIR 2010 SUPREME COURT 1898, it was held that the presumption mandated by S. 139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in nature of a civil wrong whose impact is usually confined to the private parties involved in commercial C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 6 of 13 transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities' Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
Thus, the settled position of law is that the accused has to rebutt the presumption of law that the cheques were not issued to discharge the legally enforceable debt or legal liability. Initially, the court is duty bound to presume that the cheque in question had been issued for legally enforceable debt or legal liability unless the accused discharges his burden to dispel the presumption by preponderance of probabilities.
6. The complainant adopted his pre summoning evidence C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 7 of 13 in his post summoning evidence and cross examined by the accused.
7. During cross examination, CW1 stated that he know the accused for last three years but his mother know them for last 10-12 years as his mother used to go beauty parlor of wife of the accused. CW1 denied the suggestion that accused had executed the cheque by way of security as mother of complainant assured the wife of the accused to manage some loan from some banks. CW1 also stated that he knows the location of the house of the accused at Vijay Nagar wherein he has advanced the loan to accused. During cross examination, CW1 also give the details from where he has arranged the money for advancing to the accused.
8. The statement of accused U/s 313 Cr. P.C. was recorded on 11.07.2012 in which the accused wished to lead defence evidence.
9. Accused got her wife, Payal Ahluwalia, examined as DW1 who deposed that the mother of the complainant used to come to their beauty saloon at 27D, Kamla Nagar. DW1 further deposed that talks were held between the mother of the C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 8 of 13 complainant and accused and later on accused had discussion with the complainant regarding the matter and her husband/accused gave few cheques to the complainant towards security. During cross examination, DW1 admitted that she is graduate in English (Hons.) from Daulat Ram College but she has never enquired before executing documents regarding loan that whether the complainant got loan sanctioned from bank or any one. DW1 admitted that her husband/accused has executed the cheques. DW1 also admitted that she does not know from which bank the complainant assured to get the loan sanctioned. DW1 also stated that accused never informed her that why he had given cheques before final processing of the loan.
10. D.E. was closed thereafter.
11. Final arguments advanced at length by both the sides.
12. It is observed by this court that during cross examination of CW1 the accused has admitted in form of suggestions to CW1 that he has executed the cheque in favour of the complainant. Similar fact has been deposed in examination in chief of DW1, hence, execution of cheque by the accused in favour of complainant is not in dispute at all. C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 9 of 13
13. It is also observed that in view of presumption U/s 139 N.I. Act and various decisions by Hon'ble Supreme Court of India, it is clear that there is reverse presumption in favour of the complainant and its onus of disproving of the same has been casted upon the accused by raising and proving his defence as per law. As the factum of issuance of cheque is not in question and this court is left with the appreciation of proof for the purpose of ascertaining the discharge of liability by the accused to prove that he was not under legal liability to pay to the complainant.
14. It is also observed that the DW1 has not specifically stated that about which bank she is talking for the purpose of assurance by the complainant to arrange the loan in favour of accused. CW1 has stated that his mother knew the accused for the last 10-12 years as she used to go to beauty parlor of wife of accused, the same factum also find weight by the deposition of DW1 herself. DW1 also stated that the accused has issued cheques in favour of the complainant but the accused has never informed that why he has given cheque to the complainant, therefore, in view of this deposition any submission made by DW1 that cheques were given as security to the complainant also finds no weight.
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15. It is also observed that the accused is the person who was directly dealing with all the transactions and primary source of information of all the facts and incidents but instead of getting himself examined as DW he got examined his wife as DW who deposed about the transaction of cheque only on the hearsay basis and the information she received from her husband. DW1 is the primary source of information/fact regarding visit of mother of complainant to the beauty parlor of DW1 only.
16. It is also observed that as per defence of accused, the complainant has misused the cheques given as security by the complainant but despite presentation of cheques by the complainant and issuance of legal notice by the complainant thereby mentioning the transaction between them, the accused has not taken any steps in order to stop the complainant from pursuing further or he has also not made any complaint to any law enforcing authority regarding the misuse of cheques by the complainant.
17. It is also observed that in the examination in chief of CW1, the CW1 has deposed regarding execution of Promissory Note and during statement of accused U/s 313 Cr. P.C. even without asking any question on Promissory Note, the accused C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 11 of 13 himself has given the explanation and stated about execution of promissory note by him. Although, any admission U/s 313 Cr. P.C. cannot be the ground of conviction of accused but any such admission by the accused throws light to the facts and incriminating evidence against him.
18. The accused has failed to discharge his liability to disprove the factum of receiving of notice U/s 138 N.I. Act issued by the complainant, whereas, the complainant has successfully proved the factum of advancing a loan to the accused. The cheques pertains to the accused which got dishonored by banker of the accused and accused has failed to make the payments of cheque amount within stipulated 15 days from the date of receiving of notice and, hence, failed to discharge the burden on his shoulders for disproving the presumption against him that he was under liability to pay the received amount of loan to the complainant. The case of complainant has got proved that the accused has committed the offence U/s 138 N.I. Act.
19. In view of above, accused - Arun Ahluwalia is convicted in the present case for the offence U/s 138 of N.I. Act.
C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 12 of 13 Copy of this judgment be given dasti to the convict free of cost.
Announced in the open Court on this 05th Day of March, 2015 (AJAY KUMAR MALIK) MM(Central)-04/THC 05.03.2015.
C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 13 of 13 CC No. 868/SR/14 PS: Sarai Rohilla 05.03.2015 Present : Complainant in person along with Ld. Counsel.
Accused in person along with Ld. Counsel. Final arguments advanced from both the sides.
Vide separate judgment of even date, accused - Arun Ahluwalia is convicted in the present case.
Matter is adjourned for orders on quantum of sentence on 25.03.2015.
(AJAY KUMAR MALIK) MM (Central)-04/THC/DELHI 05.03.2015 C.C. No. 868/SR/14 Vikas Aneja Vs. Arun Ahluwalia Page No. 14 of 13