Delhi District Court
Arvind Kumar vs Ganga Saran Tripathi on 16 March, 2013
Arvind Kumar vs Ganga Saran Tripathi
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE-03, N. I. ACT, CENTRAL, DELHI
CC No. 1410/10
Arvind Kumar
S/o Sh. Ganga Saran Tripathi
R/o First floor of Khasra No.31/15-E-7,
Hardev Nagar, Jharoda,
Burari, Delhi-84.
....................Complainant
vs.
Sh. Ganga Saran Tripathi
S/o Late Sh. Shivbali Tripathi
R/o 31/15-E-7,
Hardev Nagar, Jharoda,
Burari, Delhi-84.
............................Accused
The offence complained of : u/s 138 NI Act
The plea of the accused : not guilty
Final order : Convicted
Date of institution of complaint : 07.06.2010
Date on which reserved for judgment : 07.02.2013
Date of pronouncement of judgment : 16.03.2013
CC No.1410/10 Page 1 of 18
Arvind Kumar vs Ganga Saran Tripathi
JUDGMENT:
1. Vide this judgment this court shall dispose of the present complaint filed u/s 138 Negotiable Instruments Act 1881 filed by the complainant against the accused.
2. Brief facts stated in the complaint are that the accused is the father of the complainant and in the month of January 2010, the accused approached to the complainant and requested him for a friendly loan of Rs.50,000/-, which was required by the accused to tide off his urgent financial crises. Considering the blood relation and good terms with the accused, the complainant gave an amount of Rs. 50,000/- as friendly loan to the accused. In discharge of his aforesaid loan liability, the accused issued a post dated cheque bearing no.145793 dt.15.03.2010 for a sum of Rs.50,000/- drawn on Allahabad Bank, Timarpur, Delhi in favour of the complainant. The said cheque is ExCW1/1. When the complainant presented the aforesaid cheque for encashment through his banker i.e. ICICI Bank, E-4, Jhandewalan Extn., New Delhi, the same was returned unpaid by the banker of the accused with remarks "funds insufficient" vide cheque returning memo dt. 18.03.2010. The cheque returning memo is ExCW1/2. Thereafter, complainant sent CC No.1410/10 Page 2 of 18 Arvind Kumar vs Ganga Saran Tripathi a legal demand notice dt.16.04.2010 to the accused through his counsel by regd. AD post, courier as well as UPC. The said legal notice is ExCW1/3 and the postal receipts are ExCW1/4 to ExCW1/6. Accused instead of making the payment sent a false and frivolous reply, the reply is ExCW1/7. On failure of the accused to make the payment within the stipulated period, the present complaint was filed.
3. After hearing the arguments on summoning, sufficient grounds were made out against the accused u/s 138 NI Act and process was issued against him. On his appearance, the accused was admitted to bail on 17.10.2011.
4. Notice U/s 251 Cr.P.C was framed upon the accused on dt.17.10.2011 to which the accused pleaded not guilty and claimed the trial.
5. All the incriminating evidence had been put to the accused to which he stated that he never obtained any loan of Rs.50,000/- from the complainant as alleged in the present complaint. He further said that he used to keep blank signed cheques in his house for various purpose like for purchase of medicine etc., out of which the present cheque is question has been stolen by the complainant and CC No.1410/10 Page 3 of 18 Arvind Kumar vs Ganga Saran Tripathi misused in the present matter. He said that accused and the complainant lives in the same house. He has also stated that he wants to lead defence evidence.
6. Accused examined DW1 Ms. Shakuntla Dubey in his defence evidence and she deposed that it is correct that her father (accused) has never given any cheque of his account to his brother(complainant). It is also correct that her father has never taken any loan of Rs.50,000/- from her brother(complainant). Her father is near about 70 years old and due to his old age ailments, his visibility and hearing power are very poor and his hands not working properly every time. Therefore, her father used to sign the cheque for payments of electricity and water etc and he signed the cheque and keep them in the table drawer in the house. It is also correct that her father had only signed and body of the cheque were not filled up by him.
Complainant is residing in the same house at first floor forcefully. The complainant had stolen the cheque in question and misused the same and in that sequence, complainant had filed the false and fabricated complaint against the accused. When it was known to us above stolen of the above cheque, accused had made a complaint in PS Burari.
It was well known by the complainant that accused habitually keep the CC No.1410/10 Page 4 of 18 Arvind Kumar vs Ganga Saran Tripathi blanked signed cheque in his drawer / house for paying some bills etc. He was residing earlier as a member of combine family. Complainant wants gambling the property of his father situated in Hardev Nagar known as E-7, Khasra no.31/15, Hardev Nagar, Burari, Delhi and the complainant used to harass her father every time for making pressure upon him. Her father has dispossessed the complainant from all the properties movable or immovable. In this regard, he has given public notice in newspaper "Rashtriya Sahara" on 30.03.2010. When legal notice of this case was received by the accused, the reply of the same was immediately given to the concerned person. In that reply everything has already been mentioned about above stolen the cheque in question.
During her cross examination, she deposed that her father is residing at the address mentioned in the complaint. She does not remember the date, month and year that the cheque in question is given to the complainant. It is correct that dispute is pending between the accused since litigation has started between them. She can not tell the date of the complaint which was made by the accused to the police and same were given in between one / two years prior. Her father made a complaint to the police regarding theft of cheque in question prior to receive the legal notice. She has no visiting terms with the complainant and elder brother Raj CC No.1410/10 Page 5 of 18 Arvind Kumar vs Ganga Saran Tripathi Kumar since litigation has started. Both the sons of the accused are involved in the activities to harass her father.
It is wrong to suggest that she has no knowledge of this cheque in question whether the cheque was issued to the complainant. It is wrong to suggest that she has no knowledge regarding the complaint made to the police. It is wrong to suggest that the cheque was issued against the debts and the liability. It is wrong to suggest that she is deposing falsely to save her father from this case. It is wrong to suggest that she has no knowledge regarding the facts of this case.
7. Accused examined another witness Ms. Sunita Tripathi in his defence evidence and she deposed that it is correct that the complainant is her real brother and residing at first floor of the house forcefully. Her father (accused) has never taken any loan from the complainant and never issued any cheque in this regard in the name of complainant. Her father is more than 65 years of age and due to old age he is suffering from so many old diseased and his listening power is very poor and his hands not working properly at every time. The hands of the accused used to vibrate due to old age ailments and therefore, he cannot write and sign properly every time. Her father used to keep blank signed cheque in the drawer/house and CC No.1410/10 Page 6 of 18 Arvind Kumar vs Ganga Saran Tripathi the complainant used to know this fact very well. The complainant stolen the blank signed cheque of the accused from the house and misused the same against the accused in this case. When they received notice from the complainant thereafter, she came to know that the cheque in question was stolen and misused by the complainant. Thereafter, she and her father filed a complaint in the police station Burari and the same is Mark-X. The quarrels between complainant and accused started after this false case. She has seen Ex.CW-1/A (Cheque in issue), she identify the signatures of the accused and body of the cheque were filled up by the in his own handwriting and she identify the same because she has seen the complainant writing and signing since they are the same family members.
There are other cases filed by the complainant against the accused, one was for the recovery of rupees five lac and the same was dismissed in default and another case was filed by the wife of the complainant against herself, her sister and the accused and the same was disposed off earlier. The other case is pending in the court of Ms. Seema Maini, Ld. ADJ between the accused and complainant.
During cross examination, she deposed that no case was filed by the complainant before filing the present case. She know Vinay Tyagi who came to their house with mother-in-law of the complainant and sister-in law of the complainant CC No.1410/10 Page 7 of 18 Arvind Kumar vs Ganga Saran Tripathi after filing of this case for the settlement of quarrels. She does not remember that the reply of the legal notice was sent by the accused on behalf of the an advocate. It is wrong to suggest that they have gone to the advocate for giving reply of the given notice. It is wrong to suggest that their advocate advised them to file a complaint regarding the theft of the cheque in the concerned police station. It is wrong to suggest that Vinay Tyagi (property dealer), Sunny and other persons came to her house for settlement of the quarrels occurred in between. It is wrong to suggest that in the body of the cheque before the column of rupees " Fifty thousand only" and in figure "Rs.50,000/-" was written by Sunny in the presence of persons above mentioned and other persons at their house.
She is residing at the address mentioned above since her marriage. The cheque in question was lying in the drawer of double bed. Every family member used to go there frequently. She does not remember the exact time when the cheque in question was kept in the aforesaid drawer. Her father used to pay water and electricity bills by cheque beside this other uses of cheque cannot denial. Electricity bills of the house in maximum cannot exceed Rs.5,000/- to Rs.6,000/- till the day. It is wrong to suggest that she has no knowledge regarding the complaint made to the police by the accused against the complainant. It is wrong to suggest that the CC No.1410/10 Page 8 of 18 Arvind Kumar vs Ganga Saran Tripathi accused had issued the cheque in question against the debts and liabilities in the presence of above said persons. Her elder brother has not been visiting and they are not talking terms since about 3-4 years. It is wrong to suggest that she is deposing falsely.
8. I have gone through the evidence, written submissions and heard the final arguments advanced by both the parties at length.
9. The case laws material for the present facts and circumstances are discussed below.
In case entitled as "Rangappa vs Sri Mohan" [(2010), 11, Supreme Court Cases 441] where the Hon'ble Supreme Court of India, held that the bare denial of the passing of the consideration apparently does not appear to be any defence. To disprove the presumptions, the defendant has to bring on record such facts and circumstances, upon consideration on which the Court may either believe that the consideration does not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it does not exist and it was held that there is an initial presumption, which favours CC No.1410/10 Page 9 of 18 Arvind Kumar vs Ganga Saran Tripathi the complainant in the sense that the presumption mandated by Sec. 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. Since the accused did admit that the signatures on the cheques was his, the statutory presumption comes into play and same has not been rebutted even with regard to the material submitted by the complainant.
10. In the judgment "Hiten P. Dalal vs. Bratindra Nath Banerjee" AIR 2001 (SC) 3897 it was held that presumption under NI Act is a presumption of law as distinguished from a presumption under a fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with presumptions of innocence because by the later all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of a presumed fact.
11. In the judgment entitled "Pradeep Aggarwal & Ors vs Y. K. Goel", Cr. M. C. 66/2009 (Hon'ble High Court of Delhi), where it was held that complaints CC No.1410/10 Page 10 of 18 Arvind Kumar vs Ganga Saran Tripathi u/s 138 NI Act is a summary trial and accused should first disclose his defence and merely saying "He is innocent" or "He plead not guilty" will not be sufficient and onus is on the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences.
It was further held that u/s 138 NI Act, there is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent.
12. In the judgment "Mosaraf Hossain Khan vs Bhagheeraha Engg. Ltd." AIR 2006 S. C. 128(2006), it was held that the object of the provision of section 138 NI Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. Dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback.
13. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, CC No.1410/10 Page 11 of 18 Arvind Kumar vs Ganga Saran Tripathi where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.
14. Upon hearing arguments and on the perusal of the material on record reveals that accused and complainant are known to each other being related by blood as the accused is father of the complainant. The signatures on the cheques have been admitted by the accused. The legal demand notice is duly served as accused has replied to it by stating that the cheque was misplaced from the drawer of the accused and in fact he has not issued the cheque in question to the complainant and even alleged that complainant has stolen the cheque of the accused. The accused has further alleged that complainant has committed theft and forgery by entering the amount and his name as drawer in his own handwriting. Regarding this, I would like to emphasize the law laid down in Ravi Chopra Vs. State & Anr 2008 (102) DRJ 147 in which it was observed that there is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled in comparison with the signatures thereon as CC No.1410/10 Page 12 of 18 Arvind Kumar vs Ganga Saran Tripathi constituting a "material alteration" for the purposes of section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. As long as the cheque has been signed by the drawer, the fact that ink in which name and figures are written or date is filled up is different from the ink of signatures is not a material alteration for the purposes of section 87 NI Act. Hence the defence raised by the accused is without any substance and merits.
Accused has also taken the defence that he used to keep blank signed cheques in his home's drawer for the purpose of paying bills etc. He has also taken the defence that complainant used to threaten him to grab his self acquired property at Hardev Nagar, Burari, Delhi. He has made a written complaint dated 22.03.10 at PS Burari, which is mark X. He has also relied upon a public notice dated 30.03.10 in National Newspaper namely Rashtriya Sahara, wherein he has disowned his son / complainant from all movable / immovable properties. He has examined two witnesses in his defence DW1 and DW2. DW2 Ms. Sunita has deposed that complainant has stolen the blank cheques of the accused. DW2 Ms. Sunita has correctly identified the signatures of the accused in Ex. CW1/A i.e the cheque in question. Both the DW's have submitted that they are not on visiting and talking terms with their brother / complainant since several litigations have started between CC No.1410/10 Page 13 of 18 Arvind Kumar vs Ganga Saran Tripathi the complainant and the accused. The documents relied upon by the accused has failed to rebut the statutory presumptions in favour of the complainant and is of no help to the case of the accused. The argument of the accused that he used to keep blank signed cheques for payments of bills does not inspire any confidence of this court. The witnesses examined in defence by the accused are his real daughters only, who have every reason to depose in favour of the complainant. It is also submitted by the accused that there is pendency of litigation between him and the complainant to show the malafide on part of the complainant, but it is a well settled preposition of law that there is no bar in resorting to legal remedies in different facts and situations. This argument of the accused also does not inspire any confidence of this court. Hence, the accused has failed to create any reasonable probable defence in his favour to falsify the case of the complainant. The accused has miserably failed in substantiating his defence and showing that there is no liability of the accused towards the complainant.
15. The complainant successfully proved all the essential requirements of sec 138 of the Act i.e. :
a) The cheque for an amount is issued by the accused to the complainant on a bank CC No.1410/10 Page 14 of 18 Arvind Kumar vs Ganga Saran Tripathi account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability by the accused.
c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque.
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
16. Under the aforesaid discussion, accused Sh. Ganga Saran Tripathi is held guilty for offence U/s 138 NI Act and he is consequently convicted for the offence u/s 138 of Negotiable Instruments Act.
Announced in open court (Deepika Singh) today i.e. on 16.03.2013 MM -03 NI Act / Central / Delhi CC No.1410/10 Page 15 of 18 Arvind Kumar vs Ganga Saran Tripathi IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN MAGISTRATE-03, N. I. ACT, CENTRAL, DELHI CC No. 1410/10 Arvind Kumar S/o Sh. Ganga Saran Tripathi R/o First floor of Khasra No.31/15-E-7, Hardev Nagar, Jharoda, Burari, Delhi-84. ....................Complainant vs. Sh. Ganga Saran Tripathi S/o Late Sh. Shivbali Tripathi R/o 31/15-E-7, Hardev Nagar, Jharoda, Burari, Delhi-84. ............................Convict ORDER ON SENTENCE : 22.03.2013 Present : Complainant in person along with Ld. Counsel. Convict in person alongwith Ld. Counsel. Arguments heard on sentencing.
Ld. counsel for the convict has argued that convict is a senior citizen, aged about 70 years and has no source of income. He is also suffering from various old age diseases. He is suffering from poor visibility, sugar, heart problems and his hands are also not functioning properly. He is solely CC No.1410/10 Page 16 of 18 Arvind Kumar vs Ganga Saran Tripathi dependant on his daughter. He has been bonafide throughout in his conduct before the court, hence lenient view should be taken towards him.
Since the cases of dishonoring of the cheques are on high rise in the society, therefore, court is not inclined to take lenient view and release the convict under Probation of Offenders Act as it would not be having any deterrent effect.
Almost 2 ½ years have elapsed since the cheque was dishonored and the same has yet not been repaid to the complainant.
Keeping in view this conduct of the convict, no leniency ought to be granted to him. It is true that the object of Section 138 N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noticed that when this offence was inserted in the statute in 1988, it provided for imprisonment upto one year which was revised to two years following the amendment to the Act in 2002, which makes it quite evident that the legislative intent to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation.
After hearing the arguments, court is of the considered opinion that convict Sh. Ganga Saran Tripathi is sentenced to simple imprisonment for one month and he is further liable to pay a compensation of Rs. 60,000/-(Rs. Sixty thousand only) to the complainant within two months from today i.e. 22.03.2013 failing which, he will be liable to further simple imprisonment of two months.
At this stage, Ld. Counsel for the convict has filed an application for suspension of sentence, so that he can file an appropriate appeal before the appropriate court. Hence convict is admitted to bail for 30 days on furnishing CC No.1410/10 Page 17 of 18 Arvind Kumar vs Ganga Saran Tripathi bail bond in the sum of Rs.10,000/- along with one surety of like amount.
Bail bonds furnished. Accepted. Original FDR of the surety which is already on record is retained for one month more.
Come up before this court on 22.04.2013. Copy of the judgment and order on sentence is given free of cost to the convict.
Announced in open court (Deepika Singh) today i.e. on 22.03.2013 MM- 03 NI Act / Central / Delhi CC No.1410/10 Page 18 of 18