Delhi District Court
Cc No. 5052/14 Rajeev Kumar vs . Ashok Kumar Page No. 1/13 on 30 August, 2014
IN THE COURT OF SHRI RAVINDER SINGHII
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI
Case No. : 5052/14
Unique Case ID No. : 02405R0107492011
Sh. Rajeev Kumar
S/o Sh. Sita Ram
R/o H135, Raj Nagar PartII,
Palam Colony,
New Delhi110045. .................................................Complainant
Versus
Ct. Ashok Kumar
(Through DCP Recruitment Cell)
Belt No. 3382/DAP, PIS No. 28031624
New Police Line, Kingsway Camp,
Delhi ..................................................Accused
Date of Institution: 23.02.2011
Plea of the accused: Pleaded Not Guilty
Date of Reserving Judgment: 19/07/2014
Sentence or final Order: Convicted
Date of Judgment: 30/08/2014
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 of the Negotiable Instrument Act 1881 (hereinafter Said as NI Act) filed by the complainant Sh. Rajeev Kumar against the accused Sh. Ashok Kumar.
PROLOGUE (COMPLAINANT'S VERSION)
2. The factual matrix necessary for disposal of the present case as per the allegations in the complaint are that the accused was family friends of the complainant being the neighbours of the complainant. It is alleged that on 25.08.2010 the accused approached the CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 1/13 complainant and told him that he is in dire need of money as bhabhi of his wife is suffering from Cancer and he needs vast sum of money for her treatment. It is further alleged that the accused also stated that he in the process of selling his house situated in Raj Nagar, PartII, Palam Colony, New Delhi. It is further alleged that the accused also stated that he needs Rs. 7 lacs for his aforesaid requirement and he will return the same within the period of 2 months as soon as his aforesaid house is sold. It is further alleged that the accused was also prepared to issue a post dated cheque in favour of the complainant. It is further alleged that complainant could only arrange a sum of Rs. 6,80,000/ and the accused issued post dated cheque in question bearing no. 458592 dated 25.10.2010 for a sum of Rs. 6,80,000/ drawn on SBI, Palam Colony, New Delhi in favour of the complainant. It is further alleged that on 24.10.2010 the complainant approached the accused for return of the said loan and the accused expressed his inability to return the same and told him that he is still in process of selling out of the aforesaid house and stated that he would return the loan amount after selling off his house and further requested the complainant not to present the cheque before December, 2010. It is further alleged that in the month of November, 2010 the accused along with his wife disappeared and were not traceable and after lot of efforts complainant contacted the accused in his office. It is further alleged that the accused assured the complainant that enough funds are available in his account and complainant is free to present the cheque on or after 20.12.2010. It is further alleged that accused also assured the complainant that the cheque would be duly honoured. It is further alleged that on the basis of assurances of the accused the complainant presented the cheque in question for encashment with its banker but the same was dishonored vide cheque returning memo dated 22.12.2010 with remarks "Funds Insufficient". It is further alleged that thereafter the complainant has given a legal notice of demand dated 10.01.2011 to the accused which was sent to the accused through registered post and UPC thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 2/13 failed to pay any sum in response to the legal notice of demand as a result of which the complainant has filed the present complaint for prosecution of the accused U/s 138 of the NI Act.
COMPLAINANT'S EVIDENCE
3. The complainant Rajeev Kumar got himself examined as CW1 and adopted his pre summoning evidence affidavit Ex. CW1/A. CW1 also relied upon documents Ex. CW1/1 to Ex. CW1/5. Ex. CW1/1 is the original cheque in question, Ex. CW1/2 is the cheque returning memo, Ex. CW1/3 is the legal notice of demand, Ex. CW1/4 is the returned registered post envelope and Ex. CW1/5 is the original non cognizable receipt in respect of loss of original postal receipts. CW1 was duly cross examined by Ld. Counsel for the accused. Thereafter, the complainant's evidence was closed at request.
STATEMENT OF ACCUSED U/S 313 OF THE CODE
4. Thereafter the statement of accused was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to the accused Ashok Kumar. The accused denied that he had approached the complainant for the loan of Rs. 7 lacs for the treatment of his wife's Bhabhi. The accused further denied that he has taken loan of Rs. 6,80,000/ from the complainant. The accused further stated that the cheque in question does not bears his signature. The accused further stated that he has also not filled the contents/particulars in the cheque in question however, the accused admitted that the cheque in question is drawn on his account. Accused further stated that he is not aware about the dishonoring of the cheque in question. The accused further denied that he has received the legal demand notice. The accused further stated that the present complainant case is a false case and the complainant has deposed falsely against him. The accused also stated that the complainant has got an electricity meter installed in his premises and CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 3/13 in respect of the same his wife has given cheque book to the complainant which the complainant has misused. The accused further stated that the account on which cheque in question is drawn is a joint account in his name and also in the name of his wife. The accused also stated that he do not owe any liability towards the complainant as alleged by the complainant. Altogether the accused denied all his liability towards the complainant. Thereafter the case was fixed for defence evidence.
DEFENCE EVIDENCE.
5. Accused examined three witnesses in his defence i.e. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony, DW2 Dr. Amulya Bharat and DW3 handwriting expert Deepak Jain. Opportunity was given to Ld. Counsel for the complainant for cross examining the defence witnesses. Thereafter, defence evidence was closed at request of the accused and the case was listed for final arguments.
FINAL ARGUMENTS
6. Final arguments were addressed on behalf of both the parties. I have heard Ld. Counsels for both the parties and have perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 4/13 provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
7. It is not disputed by the accused that the Cheque in Question Ex. CW1/1 is drawn on the account maintained by him. Infact, the accused in his statement U/s 313 of the Code has specifically admitted that the cheque in question Ex. CW1/1 belongs to him, however the accused denied his signature's on the same. Further the presentation, dishonor of the cheque in question and the cheque returning memo has also not been challenged by the accused. Therefore, In light of the evidence on record coupled with the admission by the accused it stands duly proved that the cheque in question Ex CW1/1 is drawn on the account of the accused. Further it also stands proved that the cheque in question Ex. CW1/1 was got dishonored vide cheque returning memo Ex. CW1/2 with the reason "Funds Insufficient".
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8. From the perusal of the entire evidence it has come to fore that two fold defence has been taken by the accused. Firstly, that he has not been served with the legal demand notice by the complainant and the Secondly that he has not taken any loan from the complainant and the cheque in question Ex. CW1/1 do not bears his signature and the same has not been issued by him in order to discharge his loan liability as alleged by the complainant.
9. Coming to the first line of defence taken by the accused that he has not been served with the legal demand notice by the complainant. It is pertinent to note that the complainant Rajeev Kumar has examined himself as CW1 and has specifically stated in his evidence affidavit Ex. CW1/A that he has got issued the legal demand notice Ex. CW1/3 to the accused through registered post and UPC. The complainant (CW1) has not placed the postal receipts on record vide which the legal demand notice has been send to the accused however the complainant has tendered in evidence a non cognizable receipt Ex. CW1/5 in respect of the missing postal receipts. The complainant has also tendered the returned envelope along with AD card as Ex. CW1/4. The accused Ashok Kumar has denied the receipt of the legal demand notice both at the time of framing of notice U/s 251 of the Code and also in his Statement U/s 313 of the Code. On perusal of the returned envelope Ex. CW1/4 it is revealed that it has been sent at the address of the accused mentioned by the complainant in the complaint. The returned envelopes Ex. CW1/4 also bears the postal receipt dated 12/01/2011 which is generated at time of booking a parcel by the postal authorities. Further the returned envelope also contains the stamp endorsed by postal authorities which is appended in usual course when a letter is dispatched by post. Therefore there remains no doubt that the legal demand has been sent by the complainant to the accused at the address mentioned on the same. Further it is also revealed that the same has been returned unserved. It is interesting to see that throughout the trial the accused has never challenged that the addresses mentioned on the legal demand notice CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 6/13 Ex. CW1/3 or the returned envelopes Ex. CW1/4 is incorrect or he was not present/posted at the said address at the time when the legal demand notice was sent to him. Further it is also surprising to see that accused has simply denied the receipt of the legal demand notice Ex. CW1/3 and has not any lead any evidence to corroborate his stand. Furthermore not even a suggestion to this effect was put to witness CW1 (Complainant) during his cross examination by the counsel for the accused. Therefore in the absence of any contrary evidence it stands proved that the legal demand notice Ex. CW1/3 has been sent by the complainant at the correct address of the accused. It is trite to say that when there is service of notice by post on the correct address of the accused which evidently has taken place in the present case intentional non receipt of the same on the part of the accused would amount to proper service. Otherwise, a trickster cheque drawer would avoid receiving the legal demand notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. Therefore, there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that the Legal Demand Notice has not been served upon him which is totally absenting in the present case. It was for the accused to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his correct address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that remarks on the returned envelope is incorrect or he was not responsible for the non service. Except denials the accused has not any lead any evidence to corroborate his stand. Therefore it stands proved that the legal demand notice Ex. CW1/3 has been served upon the accused. As such non receipt of the legal demand notice as a defence on part of the accused has no force.
10. Coming to the second line of defence taken by the accused that he has not taken any loan from the complainant and the cheque in question Ex. CW1/1 do not bears his signature and the same has not CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 7/13 been issued by him in order to discharge his loan liability as alleged by the complainant.
11. It is trite to say that the crux of penal liability under Section 138 of NI Act is that the Cheque in question must be issued for the discharge of any legal debt or liability. Existing of legal debt or liability is sine qua non for constituting the offence.
12. In the case in hand it is the case of the complainant that on 25.08.2010 the accused has approached him for granting a loan of Rs. 7,00,000/ lakhs stating that he is need of money for treatment of his wife's bhabhi and a loan of Rs. 6,80,000/ was granted by the complainant to the accused for two months and in discharge of his liability the accused has issued the cheque in question Ex. CW1/1. The accused has refuted the claim of the complainant. At the time of framing of notice under section 251 of the code the accused has stated that he had a residential property with him which was forcibly got vacated from him by some persons from Karala. The accused further stated that the complainant was working as an electrician with him and he used to keep his cheque book as well other documents in his house which has been misused by the complainant. The accused further stated that his wife was also forced to sign on certain cheques which has been misused by the complainant. The accused also stated that the cheque in question Ex. CW1/1 do not bears his signature nor the contents of the same has been filled by him. In his statement under section 313 of the code the accused again denied having taken any loan from the complainant and stated that complainant had got an electricity meter installed at his house and for the same his wife had give his cheque book to the complainant and the complainant has misused the same. It was also contended by the accused that the cheque in question Ex. CW1/1 do not bears his signature and contents of the same has also not been filled by him. To corroborate his stand the accused has examined three witnesses in his defence. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony (drawee CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 8/13 bank), DW2 Dr. Amulya Bharat and DW3 handwriting expert Deepak Jain.
13. It is not the case of the accused that the cheque in question Ex. CW1/1 is not drawn on the account maintained by her. The accused has simpliciter denied his signature's on the same. Now coming to the aspect whether the cheque in question Ex. CW1/1 bears the signature of the accused. It is trite to say that an essential feature of a cheque is that it has to be signed by the maker. The accused has denied his signature on the cheque in question Ex. CW1/1 at both the stages under section 251 of the code and also in his statement under section 313 of the code. To prove the same the accused has examined the handwriting expert Sh Deepak Jain as DW3. The said witness has placed on record his report Ex. DW3/A and enlarged photographs of disputed, admitted and specimen signatures of the accused as Ex. DW3/B (Colly.). From the perusal of the report Ex. DW3/A it is revealed that the handwriting expert DW3 has come to the conclusion that the signature on the cheque in question Ex. CW1/1 are not that of the accused Ashok Kumar.
14. It is pertinent to note that the cheque in question Ex. CW1/1 is drawn on State Bank of India Palam Colony branch and the same was deposited in the Syndicate Bank Palam branch in the account of the complainant. It is also pertinent to note that the cheque in question Ex. CW1/1 is dishonored vide cheque returning memo Ex. CW1/2 due to "Funds Insufficient". It is quite surprising to see that the cheque in question Ex. CW1/1 bounced not on account of the fact that the signature on cheque in question Ex. CW1/1 was not tallying with the specimen signature of the accused kept with the bank, but on account of 'Funds Insufficient'. Had the signature on cheque in question Ex. CW1/1 been different, the bank would have returned the same with the remark that the signature on the cheque in question Ex. CW1/1 was not tallying with the accused specimen signature's kept with the bank. The Cheque returning memo Ex. CW1/2 issued by the CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 9/13 bank clearly show that signature of the accused on cheque in question Ex. CW1/1 was not objected to by the bank, but the same was returned with the remark " Funds Insufficient ". In the case of denial of signature by the drawer of a cheque, the best witness would be the concerned Bank Manager. It is interesting to see that the accused has also examined the official of his bank (drawee bank) as DW1. Now coming to the evidence of DW1 Kailash Chopra, Deputy Manager, SBI Bank i.e. the accused bank (drawee bank). DW1 has placed on record the statement of account of the accused as Ex. DW1/1 and has also placed on record the copy of the account opening form of the accused as Ex. DW1/2. The witness has also placed on record the photocopy of the cheque obtained for clearance from CTS as Ex. DW1/3. Surprisingly throughout his testimony, DW1 has nowhere deposed about the fact that the cheque in question Ex. CW1/1 does not bears the signature of the accused or the signatures on the cheque in question Ex. CW1/1 do not tally with the signature of the accused available with the bank in records maintained by it. DW1 simpliciter has tendered the statement of the account of the accused, copy of the cheque obtained through CTS and account opening form of the accused. It is quite surprising to see that if the cheque in question did not bears the signature of the accused than what prevented the bank witness to testify to this effect in the court. Therefore, the silent testimony of DW2 and the return memo Ex. CW1/2 showing the dishonor of the cheque in question Ex. CW1/1 due to "Funds Insuffcient" clearly casts serious doubts about the report Ex. DW3/A given by the handwriting expert DW3 and surrounds the same with clouds of suspicion and further makes it evidently clear that the cheque in question Ex. CW1/1 bears the signature of the accused. Therefore, I have no hesitation in discarding the report Ex.DW3/A given by the handwriting expert DW3 as the surrounding evidence itself speaks to the contrary and makes the report submitted by the witness highly unbelievable. Accordingly, I hold that the signature on cheque in question Ex. CW1/1 are that of the accused.
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15. During course of arguments Ld. counsel for the accused also argued that the particulars in the cheque in question Ex. CW1/1 have also not been filled by the accused. It is also trite to say that once the signature on the cheque in question is proved to be that of the accused as has happened in the case in hand the plea of the accused that particulars in the cheque in question Ex. CW1/1 has also not been filled by him are of no consequence as there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself, as no law provides that in case of cheque the entire body has to be written by the drawer only.
16. Now coming to the evidence of DW2 Dr. Amulya Bharat, the said witness has deposed before the court about the medical condition of the accused Ashok Kumar. The witness has stated that accused is under his treatment since April 2011 as he is suffering from Paranoid Schizophrenia. Interestingly DW2 has himself admitted in his testimony that accused is under his treatment since April 2011, whereas the alleged transaction has taken place on 25.08.2010 and the cheque in question is also dated 25.10.2010. Further the witness DW2 has himself admitted during his cross examination that the accused was performing his duties while he was under his treatment. This makes it evident that the accused was even in fit state of mind. Furthermore the witness has nowhere deposed that the accused is of legally unsound mind or is not capable of issuing a cheque or is not in position to obtain loan from the complainant or is not in a fit state to stand trial. The witness has simplicitor deposed that the accused Ashok Kumar is his patient and is under his treatment as such the evidence of the said witness is not at all relevant in the present proceedings and has not at all supported the case of the accused.
17. Therefore it is apparent that accused has not found support from any quarters. Further nothing material could be elicited from the cross examination of the complainant so as to doubt or disbelieve him and only suggestion have been put the witness. Further CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 11/13 the accused has not even examined himself as a defence witness to corroborate his stand. Furthermore the accused has not even examined his wife Geeta Devi who allegedly as per explanation given by the accused u/s 313 of the code has handed over his cheque book to the complainant. Apart from the aforesaid discussed vague and flawed defence, the accused has not lead any cogent evidence to corroborate his stand. It is trite to say that mere denial on the part of the accused would not absolve him from any liability. It was for the accused to prove the circumstances under which the cheque in question Ex. CW1/1 has come in the possession of the complainant by leading cogent evidence so as to discharge and rebut the presumption raised against him by the Statute U/s 139 and 118 (a) of the NI Act and mere simplicitor denying the allegations would not be at his advantage. Further, mere pleading non guilty at the stage of notice U/s 251 of the Code or giving explanations in statement U/s 313 of the Code or putting suggestions to the complainant in cross examination without leading any defence to corroborate the same would not be sufficient to discharge the burden of presumptions casted upon the accused by virtue of provisions of Section 118 (a) and 139 of the NI Act as there is no presumption of law that the explanations and suggestion given by the accused are truthful.
18. The accused has not brought any material on record and also no cogent explanations or any probable defence which would re but the shadow of presumption existing in favour of the Complainant. This court do not find any force in the arguments advanced by the learned counsel for the accused that the accused has succeeded in re butting the presumption under Section 139 of the Act.
19. From the materials brought on record and evidence lead by the parties it stands duly proved that the accused has failed to rebut the presumptions U/s 118 (a) and section 139 of the NI Act. Therefore, I hereby hold that the Complainant has proved and substantiated its allegations that the cheque in question Ex. CW1/1 was issued by the ac CC No. 5052/14 Rajeev Kumar Vs. Ashok Kumar Page no. 12/13 cused in discharge of his legal liability and for consideration. Further more, it also stands proved that no payment has been made by the ac cused to the complainant within 15 days from the receipt of the legal demand notice.
20. In view of the aforesaid discussion, I hereby hold that the complainant has proved and substantiated its allegation against the accused and all the ingredients of Section 138 of NI Act also stands proved. Accordingly, accused Ashok Kumar S/o Sh. Vijay Singh, is hereby convicted for the offence U/s 138 of NI Act.
This Judgment contains 13 pages and every Page of this judgment has been signed by me.
Announced in the open Court (RAVINDER SINGH II)
Dated 30.08.2014 MM (NI Act 07)
Dwarka/New Delhi
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