Delhi District Court
:: vs :: on 4 February, 2023
IN THE COURT OF MR. SAHIL KHURMI,
METROPOLITAN MAGISTRATE (N.I. ACT)- 02,
ROUSE AVENUE DISTRICT COURT: NEW DELHI
DLND020125222019
Case No: 7418/2019
Tara Chand
s/o Late Sh. Girver Singh,
r/o Flat no.25, NDMC Housing Complex,
Rohini, Sector-11, Delhi-110085
...... Complainant
::Versus::
Sharad Kumar
s/o Late Sh. Prem Nath
r/o Flat no.19, NDMC Housing Complex,
Rohini Sector-11,
Delhi-110085 .......Accused
Offence Complained of: 138 NI Act
Plea of the Accused: Not guilty
Date of Institution: 25.05.2019
Arguments Heard On: 18.01.2023
Date of Judgment: 04.02.2023
Decision: CONVICTED
Tara Chand vs. Sharad Kumar
Case no.7418-2019, Page 1 of 10
JUDGMENT
1. Vide this judgment, I shall decide the present complaint filed u/s 138 NI Act bearing CC No.7418/2019, against the dishonor of cheques bearing no. 000254 for an amount of Rs.2,00,000/- dated 11.03.2019 drawn on Standard Chartered Bank, Defence Colony, New Delhi.
2. Shorn to unnecessary details, the brief facts of the case put forth by the complainant are that the accused approached the complainant for a friendly loan on 01.03.2018 for a sum of Rs.2,00,000/-. It is further stated that the accused also executed a promissory note dated 01.03.2018 and receipt given by the accused regarding receiving the loan in question which is on record. It is further stated that the complainant gave Rs.2,00,000/- to the accused and in discharge of liability the accused had issued the cheque in question which was dishonored with the remarks 'payment stopped by drawer' vide cheque returning memo dated 12.03.2019. Legal demand notice dated 10.04.2019 was sent to the accused. However, no payment was made within 15 days and hence, the present complaint.
3. The complainant examined himself as CW-1 in pre- summoning evidence, and relied upon his evidence by way of affidavit along with the following documents: -
S.No Documents relied upon Exhibited as:
1. Copy of Aadhar Card of Ex. CW-1/1
complainant.
2. Promissory Note. Ex. CW-1/2
3. Receipt of loan in question. Ex. CW-1/3
Tara Chand vs. Sharad Kumar
Case no.7418-2019, Page 2 of 10
4. Impugned cheque. Ex. CW-1/4
5. Cheque return memo. Ex. CW-1/5
6. Photocopy of pass book of Ex. CW-1/6
complainant.
7. Legal demand notice Ex.CW-1/ 7
8. Postal Receipt Ex.CW1/8
9. Tracking report. Ex.CW1/9
10. Evidence by way of affidavit. Ex.CWA/1
4. On appearance of accused, notice of accusation u/s 251 Cr.PC was served upon the accused to which the accused pleaded not guilty and claimed trial. Accused admitted his signature on the cheque and stated that he has not taken friendly loan of Rs.2,00,000/- and rather he has taken loan of Rs.30,000/- from the complainant and the impugned cheque was given for security purpose which has been misused by the complainant. He further admitted that he had entered into a mediation settlement dated 02.03.2022 for an amount of Rs.1,30,000/-.
5. Thereafter, opportunity was granted to the accused to cross-examine the complainant, however, despite various opportunities, no cross-examination of the complainant was done by the accused and the right of accused to cross-examine the complainant was closed on 14.12.2022. Thereafter, statement of accused u/s 313 Cr.PC was recorded in which accused reiterated his defence as stated in his notice u/s 251 Cr.P.C. Regarding the promissory note Ex.CW1/2 and receipt Ex.CW1/3, the accused admitted his signatures on both the documents and further stated that his signatures were taken on blank paper by the complainant and he has not executed both the documents. The accused again admitted that he entered into the mediation Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 3 of 10 settlement dated 02.03.2020 and thereafter, no DE was led by accused despite sufficient opportunities and right to lead DE was closed on 03.01.2023. Thereafter, matter was fixed for final arguments.
6. Thereafter, final arguments were heard on behalf of complainant. No final arguments were addressed on behalf of the accused. I have considered the evidence led by them carefully and have perused the court records thoroughly.
INGREDIENTS OF OFFENCE AND DISCUSSION
7. Before going into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence, as highlighted below:
1st Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
2nd Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
3rd Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
4th Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
5th Ingredient: The drawer fails to make payment of the Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 4 of 10 said amount of money within fifteen days from the date of receipt of notice.
8. Ld. counsel for the complainant has submitted that accused should be convicted of offence u/s 138 NI Act because the complainant has proved the original cheque which the accused has not disputed as being drawn on the account of the accused. He has further submitted the cheque in question was returned unpaid vide cheque return memo which is on record. The same is also not disputed by accused. He has further submitted that the complainant has to prove the legal demand notice sent to the accused which is duly proved vide postal receipt and tracking report. He has further submitted the fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed. Ld. Counsel for complainant has further submitted that as far as proof of the second ingredient is concerned, firstly since the signature on cheque is admitted by accused therefore, presumption u/s 139 NI Act lie against the accused and moreover, the accused has made settlement in mediation vide mediation order dated 02.03.2020 which was never honored by accused and moreover, the promissory note and the receipt given by the accused of receiving the loan in question is on record on which the accused has admitted his signatures.
9. Per Contra, it is the defence of accused that the accused should be acquitted of offence u/s. 138 NI Act as the accused has not received the legal demand notice from the complainant, as the details of cheque in question were not filled by accused and there is no legally enforceable debt of accused as he has taken a loan of Rs.30,000/- from the complainant and not Rs.2,00,000/-.
Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 5 of 10
10. Before examining the defences of accused, it is pertinent to note that the accused has admitted his signature on the impugned cheque. Accordingly, this court raises presumption under section 139 of NI Act that the impugned cheque was issued by the accused to the complainant in discharge of legally enforceable debt or liability. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of impugned cheque. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant.
11. Keeping in mind the fact that the accused has chosen not to cross examine the complainant and also not lead DE, it is pertinent to evaluate and appreciate the plea of defence of accused recorded u/s 251 CrPC and statement of accused recorded u/s 313 CrPC. in order to assess the "probable defence", if any, of the accused:
DEFENCES OF THE ACCUSED I. Defence of non-receipt of Legal Demand Notice:
12. It is the defence of accused that he had not received the legal demand notice sent by the complainant. It is pertinent to mention that the accused has admitted his address mentioned on the legal demand notice in his notice u/s 251 CrPC. Further in his statement u/s 313 CrPC the accused stated that he doesn't remember if he has received the legal demand notice or not. Thus, it is seen that legal demand notice is properly addressed on the admitted address of accused. The complainant has done his part diligently by sending the legal demand notice on address of Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 6 of 10 accused which was available with him and which is duly admitted by accused. Moreover, the postal receipt and tracking report is also on record.
13. Moreover, it is observed that the accused appeared before the court after the summons were issued on the same address as mentioned on the legal demand notice and the accused has filled the same address as his residential address in the bail-bonds furnished by him in the court. Therefore, it emerges that the legal demand notice being properly addressed and posted by the complainant, as proved by the postal receipts, the same is presumed to have been delivered under section 114 of the Indian Evidence Act, 1872 and the accused has failed to rebut the said presumption.
14. It was held by the Hon'ble Supreme Court in the decision cited as C.C. Alavi Haji vs Palapetty Muhammed & Anr. (2007) 6 SCC 555 that 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. Thus, the plea of the accused that the legal demand notice was never received is not tenable and accordingly, rejected.
II. Defence that contents of cheque not filled by accused:
15. It is defence of accused as stated in notice framed u/s 251 CrPC and statement recorded u/s 313 CrPC that the contents of cheque have not been filled by him. It is no longer res integra that details of cheque can be filled by any person than accused. It is settled law that the fact that the details in the cheque have been Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 7 of 10 filled up not by the drawer, but by some other person would be immaterial. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. Reliance is placed upon Oriental Bank of Commerce vs Prabodh Kumar Tewar 2022 SCC OnLine SC 1089, Bir Singh vs Mukesh Kumar (2019) 4 SCC 197 and Ravi Chopra vs State & Anr. (2008) 102 DRJ 147.
16. Therefore, in consonance with the holding of the Hon'ble Supreme Court and High Court of Delhi, it is the considered opinion of this Court that merely because the other details of the cheque in question were not filled by him, the accused cannot take the defence that there was no liability that had accrued on part of the accused towards the complainant.
III. Defence that there is no legally enforceable debt or liability:
17. From the perusal of the notice u/s 251 Cr.P.C. as well as statement of accused u/s 313 Cr.P.C., it is the defence of accused that he had taken loan of Rs.30,000/ from the complainant and not Rs.2,00,000/. It is further defence of accused that his security cheque which was given to the complainant for taking the abovementioned loan has been misused.
18. Per contra, ld. counsel for complainant has stated that the accused has neither crossexamined the complainant nor led defence evidence and notice u/s 251 Cr.P.C. as well as statement of accused u/s 313 Cr.P.C. are not a piece of evidence and cannot be relied upon by the court. He has further stated that the Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 8 of 10 promissory note Ex.CW1/2 and receipt Ex.CW1/3 is on record and the accused has stated in his statement u/s 313 Cr.P.C. that the signature on both the document pertained to him, however, the accused has stated that his signatures were taken on a blank paper by the complainant.
19. In the considered view of this court, the accused has neither crossexamined the complainant nor led defence evidence despite umpteen opportunities given and it is a settled law that notice u/s 251 Cr.P.C. as well as statement of accused u/s 313 Cr.P.C. are not a substantive piece of evidence. Mere bald submissions of accused unsubstantiated by cogent and clinching evidence that he had taken a loan of Rs.30,000/ only and not Rs.2,00,000/ does not inspire confidence of this court and are unworthy of credence. No evidence either oral or documentary has been placed on record by the accused to prove his defence. Further, it is pertinent to mention that accused has admitted his signatures on the promissory note as well as the receipt. However, he has stated that both the said documents have not been executed by him and his signatures were taken on a blank sheet of paper. The accused has not placed on record any evidence to prove his averment.
20. As per section 103 of Indian Evidence Act, the burden lies on the accused to prove that his signatures were taken on blank documents. No reasonable prudent person would give his signatures on blank documents without any reason to some other person.
21. Further, it is a matter of record that that the accused Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 9 of 10 voluntarily entered into a mediation settlement and got the present matter settled with the complainant. However, the accused did not honor the mediation settlement and paid a single penny to complainant despite umpteen opportunities and adjournment.
22. On a consideration of the totality of factors pleaded by the accused in his defence, it becomes clear that the accused has merely paid lip service to his defence and has not led any cogent evidence to establish it or draw any circumstance against the case of the Complainant which probabilizes his defence. The accused has only borrowed time from the court to make the payment which he has never done.
23. Therefore, in light of the above reasoning, it is the considered opinion of this court that the accused has miserably failed to rebut the presumption u/s 139 of NI Act which has arisen in favour of the complainant and has failed to show that his defence is probable.
24. Accordingly, accused Sharad Kumar s/o Late Sh. Prem Nath is convicted of the offence u/s 138 NI Act.
Announced in open court.
This judgment contains 10 pages and each page has been signed by me.
(Sahil Khurmi) MM(NI)-02/RADC/ NDD/ND/04.02.2023 Tara Chand vs. Sharad Kumar Case no.7418-2019, Page 10 of 10