Delhi District Court
Mr. Sanjay Puri vs Mr. Tarsem Singh @ Bobby 1 Of 10 on 28 June, 2011
IN THE COURT OF SH. SUDESH KUMAR, METROPOLITAN
MAGISTRATE/NEW DELHI
CC NO. 1606/1
In the matter of:
Mr. Sanjay Puri
S/o Sh. V.P. Puri
R/o B1/94, Lajpat Nagar I
New Delhi 110024
Complainant....................
Versus
Mr. Tarsem Singh @ Bobby
R/o F66, 3rd Floor,
Lajpat Nagar II
New Delhi 110024
Accused.....................
Date of institution:19.09.2006
Date of reserving judgement/Order:27.06.2011
Date of Pronouncement of Judgement/Order:28.06.2011
Brief statement of reasons for such decisions :
1. As per the complaint, the complainant and accused were in friendly
relations. The accused approached the complainant for friendly loan as his sister was
suffering from some serious ailment. Complainant advanced a friendly loan of Rs.
2,35,000/ to accused and in discharge of his liability, the accused had issued cheque no.
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Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 1 of 10
045602 issued from SBI Central Bank, Lajpat Nagar, New Delhi 110024. The said cheque
on presentation was returned back dishonoured with remark's "Insufficient Funds" vide
cheque returning memo dated 12.08.2006 and thereafter legal demand notice dated
22.08.2006 was served upon the accused through registered AD cover, however, despite
issuance of legal notice, the accused has failed to pay the cheque amount till date, hence,
the present complaint was filed.
2. After presummoning evidence was led, the accused was summoned.
Accused appeared in the court on 03.08.2007 and he was admitted to bail. Thereafter, on
18.10.2007, notice U/s 138 NI Act was settled against accused to which accused pleaded
not guilty and claimed trial.
3. Thereafter, matter was posted for post summoning evidence. The
complainant has examined himself as CW 1. He filed his affidavit in evidence as Ex. CW
1/1 wherein he deposed on the lines of his complaint which is on record. He proved the
documents produced by him as under:
(i) Cheque bearing no. 045602 dated 11.08.2006 as EX. CW 1/A.
(ii) Cheque returning memo as Ex. CW 1/B.
(iii) Legal Notice as Ex. CW 1/C.
(iv) Postal receipt as EX. CW 1/D.
(v) Registered AD envelope as EX. CW 1/E.
(vi) A.D. Cover as Ex. CW 1/F.
In his cross examination, the complainant deposed that he was in the
business of photostat, lamination and car salepurchase and he was doing the business for
last 5 to 6 years. He knew the accused since last 12 years. He had given the personal loan
of Rs. 2,35,000/ to accused because his sister was seriously ill and he gave the said
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Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 2 of 10
amount in cash and in three installments, two of Rs. 1,00,000/ each and one of Rs.
35,000/ to accused. The complainant further deposed that at the first and second time,
some one person was accompanying the accused and at the last installment, his mother
was also with him. The witness further deposed that he knew the said person by face
only because he belonged to same vicinity and he did not know the name of the person
who was accompanying the accused. He further deposed that he could not produce the
said person because the person was known to the accused. He has not executed any
agreement or receipt with the accused. He received the cheque on 11.08.2006 and
deposited the same on same day 11.08.2006 and he got to know on 12.08.2006 that the
said cheque was dishonoured due to Insufficient Funds. He further deposed that he did
not know the name of the mother of the accused but he knew her by face. The amount
was given in the presence of mother of complainant because she knew the mother of the
accused. The accused has not taken loan from the complainant prior to this amount. He
further deposed that he was an Income Tax assessee and he was assessed to income tax
from last 4 to 5 years. He further deposed that the accused did not give any amount to
complainant in installment. He knew the accused because he was his friend. He further
deposed that he has not given loan to anybody else except the accused. He denied the
suggestion that the accused took a loan of Rs. 40,000/ only from him. He further denied
the suggestion that the accused had given Rs. 52,000/ to him in 13 equal installments of
Rs. 4,000/ each alongwith the interest. He further denied the suggestion that he did not
give Rs. 2,35,000/ to the accused nor did his mother came with him.
In his further cross examination, the complainant deposed that he had
not brought the balance sheet, profit and loss account, computation of income because his
CA had not supplied the copy of the same to him as he refused to hand over to him. The
CA has shifted to Mumbai and his office was situated in Delhi now. The witness deposed
that all the previous records were with his CA. He deposed that he did not have any
record as they were lying with his CA and he did not know the fresh address and phone
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Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 3 of 10
number of CA. He had not furnished return. He further deposed that he had pan card but
he does not remember the pan card number. He further deposed that he could not
produce the pan card in the court. He could not remember the date due to lapse of time
on which, he had given the money to accused. He further deposed that he had given the
money in cash to accused. It was his business earned money. The witness had not
withdrawn the money from Bank.
4. No other witness was examined by the complainant and CE was closed.
5. Thereafter, the statement of accused was recorded U/s 313 Cr. PC r/w 281
Cr. PC on 05.07.2010. The accused deposed that he had received Rs. 40,000/ from
complainant as friendly loan. He had paid Rs. 4,000/ per month in installment's till 13
months. He further deposed that he had paid Rs. 52,000/ including Rs. 12,000/ as
interest. He had given two blank cheques to complainant as surety and the complainant
had promised to return them after receiving amount of Rs. 52,000/ from him however the
complainant did not return two blank cheques to him after receiving the entire amount of
Rs. 52,000/. He further deposed that he had not received amount of Rs. 2,35,000/ from
complainant at any point of time. He had not issued any cheque amounting to Rs.
2,35,000/ in favour of complainant and he had given the two blank cheques given to the
complainant as surety and the complainant promised to return them after receiving
amount of Rs. 52,000/ from him but he did not return two blank cheques to him after
receiving the entire amount of Rs. 52,000/. The accused however admitted that he had
received the legal notice. He met the complainant on the day when he had received the
legal notice Ex. CW 1/C. He asked the complainant that why he was giving legal notice
as he had paid the amount of Rs. 52,000/ to him. He replied that he was harassing him
physically and mentally. The accused further deposed that he is innocent and has been
falsely implicated in the present case and abovementioned loan of Rs. 40,000/ he had
received in the presence of his friend namely Shyam Sunder Sabharwal. The accused
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stated that he wanted to lead DE, however, despite opportunities being given, no DE was
led by accused and hence, DE was closed.
6. I have heard arguments on behalf of both the parties and have given my
thoughtful consideration to the submissions advanced on behalf of complainant and on
behalf of the accused. I have also gone through the written submissions filed on behalf of
parties.
7. For prosecution u/s 138 of Negotiable Instruments Act, 1881, the prosecution
has to prove the following:
(a) That a cheque have been presented in a bank within period of 6 months
from the date on which it is drawn or within a period of its validity.
(b) The said cheque should have been issued for discharge in whole or in part
of debt or other liability.
(c) The cheque should have been returned by the bank unpaid due to reason of
insufficient funds or that it exceed is amount arranged to be paid from that account.
(d) The payee or holder in due course makes the demand of payment of the
said loan of money by giving a notice in writing to the drawer of cheque within 15 days of
the receipt of information by him from the bank regarding the return of the cheque.
(e) The drawer of said cheque fails to make the payment to the payee or holder
in due course within 15 days of receipt of said notice (extended to 30 days vide
amendment) and
(f) Where the accused is a company and person working in a company are also
made an accused then the prosecution is required to prove that the said person working in
the company was incharge and responsible to the accused company for the conduct of its
business to make him vicariously liable.
8. It is on the fulfillment of the abovementioned ingredients that a person can
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Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 5 of 10
be prosecuted U/s 138 Negotiable Instruments Act.
9. In the present case, the cheque in dispute bearing no. 045602 is dated
11.08.2006 EX. CW 1/A and as per the returning memo Ex. CW 1/B, the same is
returned back with remarks 'Insufficient Funds' on 12.08.2006, hence, the cheque has
been presented within the stipulated period of six months. As per the returning memo
placed on record Ex. CW 1/B, the cheque has been returned back for the reasons
Insufficient Funds. A legal notice has been sent by the complainant to accused on
22.08.2006 vide postal receipt EX. CW 1/D, registered AD envelope EX. CW 1/E and
A.D. Cover as Ex. CW 1/F. In regard to the service of legal notice, the accused had
admitted in his statement u/s 313 Cr. PC that he had received legal notice from the
complainant and the same is also proved by postal receipt EX. CW 1/D, registered AD
envelope EX. CW 1/E and A.D. Cover as Ex. CW 1/F.
10. From the abovesaid, all the ingredients essential for presumption of
Section 139 NI Act are proved by the complainant except for the ingredient mentioned at
point (B) above i.e. the said cheque should have been issued for discharge in whole or in
part of debt or other liability. For proving the said ingredient, complainant has examined
himself as CW 1 and has deposed that he advanced a personal loan of Rs. 2,35,000/ to
accused because his sister was seriously ill and he gave the said amount in cash and in
three installments, two for Rs. 1,00,000/ each and one for Rs. 35,000/ to the accused. In
these circumstances, hence, the presumption under Section 139 NI Act can be raised in
favour of the complainant. In view of the presumption U/s 139 NI Act and section of 114
of Indian Evidence Act, it is presumed that the holder of the cheque holds the same
against valid consideration and it was issued in the discharge of liability by the accused.
The said presumption U/s 139 NI Act is however rebuttable and the
accused can rebut the same by leading cogent evidence on record.
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11. As per the Section 6 of the Negotiable Instrument Act, the cheque is
defined as under:
Section 6:" A "Cheque" is a bill of
exchange drawn on a specified banker and not expressed
to be payable otherwise than on demand and it includes
the electronic image of a truncated cheque and a cheque in
the electronic form"
12. In this regard, I rely upon Judgment passed by the Hon'ble High Court of
Delhi in V.S. Yadav Vs Reena CRL. A. No. 1136 of 2010 wherein it was observed that
"A bare definition of cheque shows that
cheque is a Bill of Exchange drawn on specified banker
and is a order by drawer on his own agent i.e. bank for
payment of certain sum of money to the bearer or the
order to person in whose favour cheque is drawn this
order of payment by person to the holder of cheque is not
made in casual manner just for the sake of fun. This
order is made for consideration and that is why Section
139 of the N.I. Act provides that the holder of a cheque is
persumed to have received the cheque in discharge of
whole or in part of a debt or liability. It was sufficient for
complaint to prove the debt and liability by making a
statement that the cheques were issued by the respondent
for payment of debt. Merely because the complainant did not remember the exact date and stated that the loan was taken from him about a week before 23rd / 24th June, 2006, would not throw doubt on the testimony of the complainant, more so, when the complaint specifically testified that the accused and her husband were having business in the name of S.K. Enterprises, situated at RZ133/213 and he was approached for a friendly loan by the accused / respondent through her husband. The crossexamination of this witness further shows that it was in the knowledge of accused that the complainant used to grant loan to needy persons and the accused himself cited 3 or 4 examples where the complainant had given loans to the persons. In fact, crossexamination of complainant proved unequivocally that the appellant / CC NO. 1606/1 Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 7 of 10 complainant had advanced loan to respondent also. Whether the complainant was having a licence for giving loans or not, was not the subject matter of the inquiry before the learned MM as it was not the defence of the respondent that loan was advanced without licence.
13. It was further observed by Hon'ble High Court of Delhi that "Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. PC or under Section 281 Cr. PC of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
14. The accused in the present matter however has not led any defence evidence. The only contention raised by accused is that he has taken loan of Rs. 40,000/ only from complainant which also, he had returned back to the complainant with interest.
He deposed that he had already repaid Rs. 52,000/ to him in 13 equal installments of Rs.
4,000/ each alongwith the interest. The other contention raised by accused is that he had given two blank cheques to complainant as surety and the complainant had promised to CC NO. 1606/1 Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 8 of 10 return them after receiving amount of Rs. 52,000/ from him but the complainant did not return the said two blank cheques to him after receiving the entire amount of Rs.
52,000/.
15. In the present case, the accused has not led any evidence to prove all the contentions raised by him. The complainant by making a statement in evidence that cheques were issued by the accused for payment of the loan has sufficiently discharged his onus. The accused has totally failed to prove that he has received only a loan of Rs.
40,000/ from the complainant. He has also failed to prove that he has repaid the said loan to the complainant in 13 installments of Rs. 4,000/ each. The contention of the accused that he has given two blank cheques to the complainant as surety towards the loan of Rs. 40,000/ only is also not proved on record. Despite having mentioned the name of one person in his statement u/s 313 Cr. PC Mr. Shyam Sunder Sabharwal in whose presence he has received a loan of Rs. 40,000/. The said person was never examined by the accused to prove his contention. All the contentions raised by accused are unproved. It was for the accused to prove that if the said amount was not taken by the accused or if he has repaid the loan amount as averred by him then why he has not written a letter to the complainant for return of the cheques and in case the cheques were still retained why he has not protested immediately to the same or further why he has not served the complainant with a notice in this regard. Nothing as such has been proved on record. Raising bald contentions in his statement u/s 313 Cr. PC does not amount to any proof.
16. Counsel for accused has further raised one objection that no person can be allowed to give a sum more than Rs. 20,000/ in cash as per the Income Tax Laws and the complainant has failed to prove any document on record to prove the transaction and that no receipt or witness regarding any payment has been produced by the complainant.
CC NO. 1606/1Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 9 of 10
17. The contention raised by accused regarding payment of Rs. 20,000/ in cash being barred by Income Tax Laws also applies to the contention raised by accused himself wherein he had admitted that he had taken Rs. 40,000/ from complainant and he has already repaid the same to complainant. The same seems to be of no help to the accused being raised in the present proceedings.
18. In view of the law laid down in the abovementioned Judgement and evidence led by the complainant, I am satisfied that the complainant has proved his case beyond reasonable doubt. The accused hence stands convicted for the offence U/s 138 NI Act.
Let he be heard on the point of sentence on 29.06.2011.
Announced in the open court (SUDESH KUMAR)
on 28.06.2011 METROPOLITAN MAGISTRATE
This judgment contains 10 PATIALA HOUSE COURTS
pages and each page has NEW DELHI
been signed by me.
CC NO. 1606/1
Mr. Sanjay Puri Vs Mr. Tarsem Singh @ Bobby 10 of 10