Delhi District Court
Anju Devi vs . Mukesh on 9 May, 2022
IN THE COURT OF SH. RAHUL JAIN,
METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI
C.C No. 37173/2019
Anju Devi Vs. Mukesh
Smt. Anju Devi
W/o Late Sh.Jitender Singh
R/o RZF796/3C, Raj NagarII,
Palam Colony,
New Delhi110077.
..............Complainant
Versus
Sh.Mukesh
S/o Sh. Ranvir Singh
R/o RZS12, Nanda Block,
Mahavir Enclave,
South West,
Delhi110045.
............Accused
Date of Institution : 04.10.2019
Plea of the accused : Pleaded Not Guilty
Date of Reserving Judgment : 30.04.2022
Date of Judgment : 09.05.2022
Final order : Conviction
JUDGMENT
BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 1/14 complainant Smt. Anju Devi against accused namely Mukesh. In gist, it is alleged in complaint that in July 2018 accused approached complainant to purchase a car bearing no. DL1ZB6886 Hyundai Xcent as the husband of the accused died on 31/05/2018 and the said taxi car was not in use. It was sold vide Vehicle agreement dated 27/07/2018 Ex. CW1/H for Rs. 7 lacs only to be paid in 35 EMIs of Rs.20,000/. After default in the installments, accused issued a cheque bearing no. 335349 Ex. CW1/A of Rs. 20,000/ which was returned dishonoured vide return memo Ex. CW1/B with remark " funds insufficient". Thereafter, complainant approached the accused repeatedly about the dishonour of the cheque and then the accused agreed to repay the consideration at one time and issued one cheque of Rs. 6,16,000/ i.e. Ex.CW1/C which was dishonoured vide memo Ex.CW1/D. The complainant sent a legal demand notice on 11.09.2019 vide Ex.CW1/E via postal receipt Ex.CW1/F and since no reply or payment was made within statutory period of legal demand notice, hence, this complaint.
PRESUMMONING EVIDENCE & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was framed only against the second cheque no. 335350 put to the accused by my Predecessor for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 16.08.2017 wherein he denied purchasing any car from the complainant. He admitted that his brother had purchased the car from the complainant and he had stood as a guarantor in the said transaction. He further stated that his brother was supposed to pay the EMI's, however, due to his financial condition he could not pay the same and he had paid some EMIs to the complainant on his behalf. Moreover, he stated that he had given 35 blank signed cheques to the complainant which C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 2/14 includes cheque in question. The accused admitted only his signature on the cheque and stated that the rest of the particulars were not filled by him. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence.
COMPLAINANT'S POST NOTICE EVIDENCE
3. Complainant stepped in witness box as CW1 adopted her affidavit of pre summoning as his evidence, stating all exhibits available on record and in gist in her crossexamination she deposed that she had handed over the possession, vehicle papers including RC and keys of the car to the accused after executing the vehicle agreement Ex. CW1/H. She stated that the accused paid first three installments but later stopped paying the installments. She deposed that she didn't remember the month but the accused stopped paying in 2019. She further stated that she didn't remember the exact date when the accused approached her for the car. She admitted the fact that the car was registered in the name of her husband and that she did not file any succession certificate in respect of the car after the demise of her husband. Cross examination was deferred as the witness stated that she can bring the receipt of cash payment received by her but didn't bring the same on the next date and deposed that she had lost the same.
4. Complainant closed her postnotice evidence on 04.03.2022 and thereafter, matter was fixed for recording statement of accused.
STATEMENT OF ACCUSED
5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 04.03.2022 separately. Incriminating evidence was put to him. Accused C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 3/14 denied all the allegations and reiterated that he had not purchased any car from the complainant and denied his signatures on the vehicle agreement. He admitted his signatures on the cheque and reiterated that car was purchased by his brother from the complainant and he had just stood as a guarantor in the transaction and issued the cheque as a security.
6. Accused was given opportunity to lead defence evidence and he himself stepped into the witness box as DW1 and produced his brother as DW2. DW1/ accused reiterated in his chief what he stated in his notice and his statement u/s 313 Crpc. However, he admitted that car no. DL1ZB6886 is driven by him and it is in possession of his brother. He again denied he signatures on the Vehicle agreement Ex. CW1/H. He further deposed in his cross that the cheque issued to his brother as blank signed cheque and that he never made any cash payment to the complainant. Further, he deposed that he didn't know the complainant and dispute is between his brother and the complainant. DW2 i.e brother of the accused came into witness box and deposed in his chief that he also didn't purchase car from the complainant rather he purchased it from some old person namely Sh. Bhadoria. There was a deal to purchase the car for Rs. 20,000/ per month and he used to pay him in cash. He further stated that he had seen the complainant first time in court. In his cross, he stated that RC was in name of some Jitender and not Badhoria. He also admitted that car is in their possession. The Defence Evidence was closed on 23.04.2022.
7. Final arguments from both sides heard on 30.04.2022. Case file perused.
POINTS FOR DETERMINATION : 8.1 Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
C.C No. 37173/2019Anju Devi Vs. Mukesh Page 4/14 8.2 Final order.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. To bring home conviction for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the complainant is obliged to prove :
(a) The cheque(s) was/were drawn/issued by the accused person(s) to the complainant on an account maintained by him/her/them/it with the bank for discharge, in whole or in part, of any debt or liability.
(b) The cheques(s) was/were presented to the bank within a period of six months or within period of its/their validity.
(c) The cheque(s) so presented for encashment was/were dishonored.
(d) The payee/complainant of the cheque(s) issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque(s).
(e) The drawer of the cheque(s) failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice.
(f) The complaint was presented within one month after the expiry of above 15 days.
UNDISPUTED/UNCONTROVERTED FACTS
10. At the outset, it is pertinent to mention herein that it is not in dispute that cheque in question belongs to the accused, it bears his signatures, it was drawn on an account maintained by the accused with a bank and cheque in question was dishonored as alleged. So, there is no need of discussion qua said ingredients and same can be regarded as being duly proved on record and being noncontroverted. Hence, there is no need of discussion of said ingredient in a complaint filed under the section 138 Negotiable Instruments Act.
C.C No. 37173/2019Anju Devi Vs. Mukesh Page 5/14 CONTENTION QUA LEGAL NOTICE
11. Accused merely denied receiving the legal notice while admitting that the address mentioned in the legal notice is correct. Summons were served on the same address and accused mentioned the same address in his bail bonds as well. The complainant has proved on record the Legal notice dated 11.09.2019 vide Ex. CW1/E; Postal receipts for legal demand notice Ex.CW1/F; Internet generated tracking report vide Ex.CW1/G to prove the fact of sending legal notice. However, in the notice under Sec.251, CrPC as well as in the statement recorded under Sec. 313 CrPC, the accused has denied the receipt of legal demand notice. However, this assertion of nonreceipt of legal notice cannot help the accused in escaping liability under section 138 NI Act, especially keeping in mind that firstly the accused has admitted his address mentioned on legal demand notice to be correct and secondly that the accused entered appearance in the court pursuant to service upon the same address as was mentioned in the legal demand notice. It has been settled by the Hon'ble Apex Court in the judgement reported as, C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 that an accused who claims that he did not receive the legal notice, can, within 15 days of receipt of summons from the court, make payment of the cheque amount, and an accused who does not make such payment cannot contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.
CONTENTIONS QUA LEGAL ENFORCEABLE DEBT 12.1(a) The contentions which have been raised by defence is that he he had not purchased any car from the complainant and denied his signatures on the vehicle agreement. He stated that car was purchased by his brother from the complainant and he had just stood as a guarantor in the transaction and issued the cheque as a C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 6/14 security. It was further argued that the complainant admitted that she was not the registered owner of the vehicle as it was registered in the name of her husband who had expired before the sale and also that she didn't get any succession certificate in her favour. Thus, she was not legally the owner and didn't have any authority to sell the car. It is contended that accused should be acquitted in this matter.
12.1(b) On the other hand, it is the contention of the complainant side that accused has taken multiple defences without proving any. It is argued that the accused firstly stated that he gave the cheques for security as guarantor for the transaction. Later his brother changed the track and tried to bring a new defence by stating that even he didn't purchase the car from the complainant. The complainant thus argued that the accused has firstly been pleading inconsistent stands and in any case has not put any probable defence. The complainant further submitted that since consideration wasn't paid, the accused drew cheque in discharge of the liability, hence, all ingredients of commission of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record, therefore, accused should be held guilty in this matter.
12.2 Submissions of both side considered.
Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under : "Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under : C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 7/14 "Section 139 Presumption in favour of holder : It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
In matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde" (2008) 4 SCC 54, Hon'ble Supreme Court of India has observed : "32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
"34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : "17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal" (1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 8/14 proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : "26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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". "27. Section 139 of the Act is an example of a 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 the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 9/14 test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard or proof."
"28. 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 doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, 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."
12.3 So, precisely there is initial presumption of legally enforceable debt or liability against the accused side, but same is rebuttable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can lead evidence in defence, even can rely on materials submitted by complainant and can rely upon circumstances also to show nonexistence of consideration or it being improbable and need not adduce evidence of his own for the same.
12.4 The defence of the accused side considered in view of abovecited case laws. The initial defence of the accused has been that he had not purchased any car from the complainant and denied his signatures on the vehicle agreement. He stated that car was purchased by his brother from the complainant and he had just stood as a guarantor in the transaction and issued the cheque as a security. This defence is not even a defence rather an admission to the liability to pay the cheques. The law on a guarantor's liability would be discussed briefly. The logic behind including the liability of guarantor u/s 138 NI Act is that Section 138 uses the words "where any cheque" and therefore, the cheque could be drawn for whatever reason and the drawer would be liable if it is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability. In other words, the cheque could be issued for the discharge of the debt or liability of the drawer or of any other person including a guarantor.
C.C No. 37173/2019Anju Devi Vs. Mukesh Page 10/14 The word "other liability" as mentioned in Sec 138 NI Act means a legally enforceable debt or other liability.
Section 128 of Indian Contract Act provides that the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided in the contract.
Therefore, as per the Indian Contract Act, the liability of the guarantor is coextensive with that of the borrower which means that lender can enforce his right against either the principal borrower or the guarantor of principal borrower. On a joint reading of section 138 of Negotiable Instruments Act and Section 128 of Indian Contract act, it is now crystal clear that the liability of the guarantor of a loan falls within the provisions of section 138 NI Act.
The accused's witness DW2 i.e. the brother of the accused himself didn't support this defence of the accused and stated he didn't purchase the car from the complainant and had seen her first time in court today. He tried to help the accused rather mischievously by bringing on record an entirely different story of purchasing car from some other person and issuing the cheque to him. This was nothing but an afterthought after realising that the defence of accused that he was just a guarantor for the transaction is bound to fail.
12.5 The accused also denied his signatures on the vehicle agreement verbally without adducing any evidence in support thereof. With the presumption under Section 139 NI Act raised in the favour of complainant as the accused admitted his signatures on the cheque, the burden of proof was on the accused to raise a probable defence. Although, such burden is only to the extent of preponderance of probabilities but mere verbal denial won't discharge even this burden. The onus was on the accused to prove that the signatures on the agreement are not his. He could have done the same by adducing expert evidence. In absences of the same, I have used my power under Section 73 Evidence Act to compare the signatures C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 11/14 on the Vehicle Agreement Ex. CW1/H with the admitted signatures on the cheque and found the signature to be same with the handwriting pattern to be similar. So, this defence is rejected as a hollow argument. Now, this prima facie establishes that the accused has lied on oath. In view of the unrebutted documentary evidence on record i.e. the Vehicle Agreement Ex. CW1/H, it is apparent that the accused came into the witness box u/s 315 Crpc and has lied on oath stating that he did not purchase the car from the complainant and had not executed the Vehicle agreement. He was also contradicted by his own witness i.e his brother DW 2 on his defence that car was purchased by his brother from the complainant when the brother testified on oath that he does not know the complainant and had seen her first time in court. Thus , it is prima facie established that the accused has lied on oath.
12.6 The next defence raised by accused is that complainant didn't have the authority to sell the vehicle as she admitted that the vehicle was registered in the name of the husband and that she didn't get any succession certificate before transferring the vehicle. In this defence, accused tried to question the ownership of the complainant regarding the car and thus in turn claim that it wasn't a legal enforceable debt. Thus, here he admits impliedly that he has the liability of the sale consideration of the car but it is just that the complainant wasn't the legal owner of the car. The accused has admitted that the car in the vehicle agreement is driven by him and is in the possession of his brother. It is pertinent to note that the accused must have signed the Vehicle agreement knowing fully the facts regarding the ownership. It is stated in the agreement that the complainant i.e. Anju Devi is the owner of the vehicle and it is also stated in the Para 4 that both parties entered into the agreement with their free consent without any coercion or undue influence. The accused has never challenged the vehicle agreement in a court of law. Even if it is presumed for sake of arguments that agreement was signed by the accused without free consent as fraud was practiced upon him, then also it would only be a C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 12/14 void able agreement voidable at the option of the party whose consent was so obtained. The accused never exercised his option to end the agreement and thereby accepted the agreement. This defence was also nothing but a sham considering that the accused is in possession of the vehicle and drives the same. Also, the buyer i.e the accused knew the vehicle is registered in name of some other person other than the accused and thus cannot even claim that fraud was practiced upon him. As per contract act, fraud is only practiced upon a person who is deceived by such fraud. In this case, the buyer /accused was aware of the ownership of the vehicle was not with the complainant. The accused has presented absolutely no tenable defence but mere hollow averments.
12.7 From the above discussion, a presumption exists in the favour of the complainant and it is the accused who is to discharge the onus. The accused has miserably failed to discharge the same. Thus the accused has not been able to rebut the presumption even by any probable defence. The accused has not shown any cogent evidence to show that the cheque was not against any liability. Moreover, the accused has just presented sham and untenable defences one after the other. In fact, in his notice u/s 251 Crpc, statement u/s 313 Crpc and chief u/s 315 Crpc he has admitted his liability as a guarantor. The accused has been unable to rebut the presumption which exits in favour of the complainant.
FINAL CONCLUSION
13. It stands established on record in the form of evidence of the complainant given vide affidavit (which can be read in evidence at all stages as per judgment of "Rajesh Agarwal Vs. State & Anr." 171 (2010) DELHI LAW TIMES 51), documents exhibited in evidence, admission(s) of accused during notice/accusations explained to him and statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, C.C No. 37173/2019 Anju Devi Vs. Mukesh Page 13/14 1973 that complainant sold the car to the accused vide the vehicle agreement dated 27.07.2018, accused issued cheque in question for discharge of their liability, cheque got dishonored on presentment, complainant served legal demand notice upon accused demanding the cheque amount in question, however, accused failed to make the said payment within statutory period despite service. So, all the ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record. The defences raised by accused side are not sustainable as per above discussions.
FINAL ORDER
14. In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused namely Mukesh stands convicted for offence punishable under Section 138 of The Negotiable Instruments Act, 1881.
15. This judgment contains 14 pages. Every Page of this judgment has been signed by me.
16. Copy of this judgment be given free of cost to the accused / convict.
ANNOUNCED IN THE OPEN COURT (RAHUL JAIN )
TODAY i.e 09th May' 2022 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS
NEW DELHI
C.C No. 37173/2019
Anju Devi Vs. Mukesh
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