Delhi District Court
Page No. 1 To 14 Nirmal Kumari Sharma vs . Umesh Chand Verma on 1 October, 2014
1
IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 416/11
b. Date of the commission of the offence : 12/09/2011
c. Name of the Complainant : Nirmal Kumari Sharma
d. Name of Accused person and his parentage: Umesh Chand Verma,
and residence S/o Late Sh. T. D. Verma,
R/o 8/94, 1st & 2nd Floor, Chhota Bazar,
Shahdara, Delhi32.
e. Offence complained of : Dishonouring of cheque for
"Insufficient Funds".
f. Plea of the Accused and his examination (if any): Not guilty
because cheque was given as
security and no liability remains
to be descharged.
g. Final Order : Held guilty.
Convicted.
h. Order reserved on : 29.09.2014.
i. Order pronounced on : 01.10.2014.
Page No. 1 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma
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Brief reasons for decision:
1.Brief facts necessary for the disposal of this case are that on 16.09.2011, a complaint was filed by Smt. Nirmal Kumari Sharma, the Complainant herein, under section 138 of the Negotiable Instruments Act (NI Act) against Sh. Umesh Chand Sharma, hereinafter referred to as the Accused, whereby cognizance was taken for the offence under section 138 of the NI Act against the Accused on 17.09.2011 and he was summoned before this Court.
2. It has been alleged in the Complaint and the Affidavit of the Complainant that Sh. Chander Bhan Singh, the husband of the Complainant and the accused had friendly relations since long on account of being residents of the same locality. It is stated that the Accused approached the husband of the Complainant on 26.06.2010 at the house of the Complainant and asked for a friendly loan of Rs. One Lac citing some financial problem. In response to the same, the Complainant, on being asked by her husband, handed over Rs. One Lac to the Accused from her Account as friendly loan for a period of six months through cheque bearing number. 359412 dt. 26.06.2010 drawn on SBI, Anaj Mandi Branch, Shahdara, Delhi and the said cheque was duly encashed. It is further alleged that in February, 2011 the Complainant and her husband contacted the Accused for return of the loan amount and consequently, the Accused came at the residence of the Complainant and handed over a cheque bearing no. 005312 (Ex. CW1/A) dated 26.02.2011 drawn on Central Bank of Page No. 2 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 3 India, Shahdara, Delhi110032. It is stated that the Accused had told the complainant and her husband not to present the cheque for payment for around six more months. In first week of August, 2011, on being asked to get the cheque encashed, the cheque in question was presented for payment by the Complainant with her Banker on 10.08.2011 i.e. SBI, Anaj Mandi Branch, Shahdara, Delhi and the same was dishonoured on 12.08.2011 on the ground funds insufficient (vide return memo Ex. CW1/B) . The Complainant further states that she and her husband approached the accused personally for returning of their loan amount of Rs. One Lac but the Accused flatly refused to return the same and then the Complainant got legal notice dt. 27.08.2011 (Ex. CW1/C) issued upon the accused on 27.08.2011 by Registered Post as well as Speed Post of which postal receipts are Ex. CW1/D and Ex. CW1/E and AD Card is Ex. CW1/F. It is further submitted that a corrigendum to the legal notice dt 15.09.2011 (Ex. CW1/G) was also served upon the Accused on 16.09.2011 through Registered Post as well as Speed Post of which postal receipts are Ex. CW1/H and Ex. CW1/I as the cheque number by which loan was advanced to the Accused by the Complainant had been wrongly mentioned. It is stated that the Accused has not bothered to reply to the legal notice and has no intention of returning the loan amount. Hence, the present complaint has been filed.
3. Notice was framed against the accused under Section 138 NI Act on 16.03.2012, to which he pleaded not guilty and claimed trial. Plea of Defence of the accused was also recorded wherein the Accused admitted the signature on Page No. 3 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 4 the cheque in question as well as filling in the contents appearing on the cheque in question except the date. The Accused also admitted to handing over of the cheque in question to the husband of the Complainant as a security with respect to a loan of Rs.1,00,000/ taken from the Complainant. However, the Accused stated that he had already repaid the entire loan amount by way of a demand draft of Rs.10,000/ and cash of Rs.90,000/. It is further stated that after repayment the Accused asked the Complainant to return the cheque in question but the Complainant pretended that the same had been lost. Lastly, the Accused denied receipt of any legal demand notice issued by the Complainant.
4. To prove his case, the Complainant adopted her presummoning evidence as her postsummoning evidence and examined herself as CW1. On an application of the accused under section 145(2) of the NI Act, the accused was given an opportunity to crossexamine the Complainant. Thereafter, CE was closed on 20.10.2012.
5. Statement of the accused had been recorded under Section 313 Cr.P.C on 29.09.2014, wherein the accused reiterated his stand taken in his plea of defence with certain additions and contradictions. Accused added that he had filled the date on the cheque in question as "6.2.2011" which was manipulated by the Complainant as "26.2.2011". Further, the Accused admitted that he had taken a loan from the Complainant in June, 2010. Contrary, to his statement in his plea of defence, the Accused submitted that he handed over the cheque in question to the Complainant as a security for the said loan in February, 2011. Further, the Page No. 4 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 5 Accused added that on 05.08.2011 he had paid the cash of Rs.90,000/ towards repayment of loan and before that he had already repaid Rs.10,000/ by way of a demand draft. The Accused specifically added that at the time of handing over of the Demand Draft, either the son or soninlaw of the Complainant was also present. Further, diverting from his plea of defence, it has also been stated by the Accused that when he demanded his cheque back from the Complainant, she stated that the same would be returned later as whitewash work was going on in her house. It is also stated by the Accused that despite his request to the Complainant for not presenting the cheque for payment, she presented the same and resultantly, it was dishonoured.
6. In order to prove his innocence, the accused examined three witnesses i.e. DW1, Sh. Harpal Singh, DW2, Sh. Sayed Faizal Huda, a handwriting expert and DW3, Accused himself. The detailed report of DW2 is Ex. DW2/A.
7. I have heard the arguments of both the parties at length and have gone through the entire record carefully. Counsel for the complainant relied upon certain judgments i.e. Yogendra Pratap Singh vs. Savitri Pandey & Anr. [In Crl. Appeal No. 605 of 2012 (Arising out of SLP (Crl.) No. 5761 of 2010)], Krish International P. Ltd. & Ors. vs. State & Anr. [Crl. M. C. Nos. 905 & 906 of 2012], M/s Collage Culture & Ors. vs. Apparel Export Promotion Council & Anr. [In Crl. M. C. No. 3011 of 2004] and Abdul Rehman M. Mulgand vs. Mohammad Hashan Mulgand & Anr. [In Crl. Misc. Appln. No. 157 of 2005].
Page No. 5 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 6 Counsel for the accused also relied upon certain judgments i.e. Om Parkash vs. Subhash Chand [In Crl. Appeal No. 291 MA of 2009 (O&M)], Ramachandran vs. Dinesh [in Crl. R. P. No. 757 of 2003], H. Rajagopal vs. D. C. Mehta & Anr., [in Crl. A. No. 920 of 1998], Veera Exports vs. T. Kalavathy [in Crl. Appeal Nos. 11101111 of 2001], A. V. Murthy vs. B. S. Nagabasavanna [in Crl. Appeal No. 206 of 2002] and Yogendra Pratap Singh vs. Savitri Pandey & Anr. [in Crl. Appeal No. of 2012].
8. Primarily, the loan transaction, the handing over of the cheque in question as well as the signatures on the same, have already been admitted by the Accused. Hence, the presumptions under section 118 and 139 of the NI Act come into play against the Accused. However, before we move further, it is to be noted that even though the filling up of contents on the cheque in question has been admitted by the Accused, he has stated that the date on the cheque in question has been altered and manipulated by the Complainant. In view of the same, the case will now have be examined on two accounts; one, with respect to the rebuttal of presumptions raised against the Accused and two, the effect of alteration, if any, of the date on the cheque in question.
9. With respect to repayment of Rs.90,000/ to the Complainant, suggestion has been put by the Counsel for the Accused that the repayment has been made to the Complainant in presence of Harpal. However, contradicting this suggestion, DW1, Harpal, has stated in his testimony that in his presence the Accused had paid cash to the husband of the Complainant. Nonetheless, the Page No. 6 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 7 most striking discrepancy in the testimony of DW1 which questions his credibility is his inconsistent stands taken in his cross examination pertaining to handing over of money. Perusal of the relevant extracts as given below make it apparent:
Extract 1 :
"I along with accused visited the home of complainant by my scooter and accused was having money of Rs.90,000/ in white polythene......Aforesaid amount of Rs. 90,000/ of accused was of Rs.500/ denomination. I have seen the bundle of money. However, I did not count the same. It is wrong to suggest that I have not seen any money being counted by accused at the home of the complainant.
Extract 2:
"I did not see the face of Mr. Chander Bhan, husband of complainant to whom accused paid Rs.90,000/. I was outside the door of home of complainant and accused went inside the home of the complainant for repayment of amount of Rs. 90,000/."
9.1. It is clear from the above mentioned extracts and analysis that consistent stand has not been taken by DW1 who happens to be the star witness for the defence case as it is in his very presence that the alleged repayment has been made. While on the one hand, he has stated that payment was made in his presence, on the other, he has stated that he never went inside the house of the Complainant. Both the statements cannot be simultaneously true as it is an admitted fact that the money was handed over in the house of the Complainant. Hence, the credibility and veracity of the testimony of DW1 becomes doubtful. 9.2. It is also relevant here, to crosscheck the series of events put forth by the Accused by perusing his testimony while deposing as DW3. Again, DW3 Page No. 7 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 8 has also stated that the cash amount of Rs.90,000/ was paid to the husband of the Complainant. However, the Accused has deposed that his friend Harpal waited outside the house of the Complainant alongwith his scooter while he went inside the gate. This again indicates that the money was not handed over by the Accused to the Complainant or her husband in the presence of the sole alleged eyewitness Harpal. Thus, the Accused has been unable to prove or even probablize the payment of cash amount of Rs.90,000/ to the complainant. Even assuming that the payment was actually made by the Accused to the Complainant or her husband, the only alleged eyewitness has already been rendered unreliable through his crossexamination and other than that, no documentary proof has been placed on record to prove the same.
10. As regards the payment of Rs.10,000/ by way of Demand Draft made by the Accused, it again appears to be a questionable transaction which fails to gather the confidence of this court. A suggestion put by the Counsel for the Accused to the Complainant during her crossexamination indicates the line of defence to be that the said demand draft had been encashed in the account of the Complainant as her soninlaw had taken the same on her behalf. However, while deposing as a defence witness, the Accused has stated as follows:
"I had repaid entire aforesaid amount of Rs.1,00,000/ to said Chander Bhan by way of one demand draft of Rs.10,000/ and Rs.90,000/ in cash on 05th August of either 2011 or 2012."
10.1. It clearly indicates the change in stand taken by the Accused. While earlier it has been suggested that the demand draft was handed over to the son Page No. 8 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 9 inlaw of the Complainant; in his testimony, the Accused has submitted to have handed over the same to the Husband of the Complainant.
10.2. Moreover, it may be noted that specific suggestion has been put to the Complainant that the said demand draft was encashed in the bank account of the Complainant. However, neither any Bank witness has been examined nor has the bank account details of the Complainant been called for by the Accused to prove the factum of said encashment. Also, no attempt has been made by the Accused to bring the soninlaw of the Complainant as a witness to whom the said demand draft has been suggested to have been handed over. Hence, no attempt, whatsoever, has been made by the Accused to prove that the demand draft had indeed been encashed. In view of the same, even the probability of partrepayment of Rs.10,000/ by way of a demand draft is also reduced to bare minimum.
11. Moving on to the return of the cheque in question by the Complainant to the Accused. The accused has submitted that he had paid the entire loan amount and demanded his cheque back from the Complainant on which he had been told that the cheque had been lost/misplaced and would be returned later as whitewash work was going on at her place. However, surprisingly, despite the cheque in question not being returned and despite having knowledge of the misplacement of the same, the Accused neither stopped payment nor did he lodge any police complaint. Further, as per his admitted stand that despite the cheque in question being presented for payment against his specific instructions, Page No. 9 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 10 no action regarding misuse of the cheque in question was ever initiated by the Accused against the Complainant or her husband. It is also pertinent to note that though the cheque in question has been allegedly given as a security, the Accused had instructed the Complainant not to present the cheque for payment which indicates that even when issuing a fully filled duly signed cheque in question, the Accused had sufficient knowledge that the same could not have been encashed.
12. Another ticklish issue in the stand taken by the Accused is that the cheque in question was handed over as a security in February, 2011 for loan taken in June, 2010. As a matter of prudence for any common man, security cheques are advanced at the time of taking the loan and not after six months of receiving the loan amount. Hence, it is doubtful that the cheque in question had indeed been issued as a security.
13. Coming now to the question pertaining to the alteration/tampering with date mentioned on the cheque in question. The factum of addition of digit '2' before the admitted date by the Accused, has been clearly mentioned in the report of the handwriting expert deposing as DW2 wherein it has been stated that the admitted date on the cheque in question i.e. "6.2.2011" has been manipulated by some person other than the one who had admitted the earlier date already written on the cheque in question. However, the fact that the cheque in question has been dishonored on the ground of "insufficiency of funds" and not on the ground of material alteration, has nowhere been disputed. Moreover, it is Page No. 10 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 11 not the case of the Accused that had the cheque been presented within the admitted date on the cheque in question, the same would not have been dishonoured. However, most importantly, it is to be noted that as per his own submission, the payment of the loan amount has been made by the Accused to the husband of the Complainant on 05.08.2011, i.e. on the last day of the validity of the cheque in question as per the Accused. As the cheque had already become stale at the time of repayment of the loan in question, there was no need for the Accused to demand his cheque back from the Complainant because the cheque would have been dishonoured on technical grounds even if presented for payment. Moreover, in his plea of defence, the Accused has nowhere mentioned that the date was manipulated or altered. It is also relevant at this stage to peruse the Application of the Accused under section 145(2) of the NI Act wherein again nothing pertaining to alteration the date on cheque in question has been mentioned rather it has been written that the applicant did not write the date appearing on the cheque in question. Hence, in his plea of defence and in his application as aforesaid, the Accused has completely denied writing the date on the cheque in question whereas later he has taken a stand that the date has been manipulated. In view of the above discussion, the alteration even if any on the cheque in question, does not in any way probablize the defence taken by the Accused.
14. Also, it has been argued by the Counsel for the Accused that the legal demand notice pertaining to the present complaint case has not been Page No. 11 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 12 received by the Accused and hence, the ingredients of section 138 NI Act are not made out. It suffices to refer here to the leading judgment of the Hon'ble Apex Court of India titled as C.C. Alavi Haji vs. Palapetty Muhammed & Anr. [JT 2007(7) SC 498] wherein it has been held that:
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. 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, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.
In the instant case as well, the address on the legal notice has been admitted by the Accused in his crossexamination and therefore, the defence that the legal notice had not been received by the Accused hereby becomes Page No. 12 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 13 irrelevant as it is not the case of the Accused that had he was ready to make the due payment, if any, within 15 days of the receipt of the legal demand notice or the Court summons.
15. Before reaching a conclusion, it is important to deal with an important argument led by the Accused regarding the maintainability of the present complaint as the same is stated to be premature. The complaint is argued to be premature on the ground that the date on the acknowledgement card Ex. CW1/F is 12.09.2011 and the complaint has been filed on 16.09.2011. However, it is to be noted here that the stamp on the acknowledgment card pertains to receiving of the postalacknowledgment card by the sender of the Registered Post and not the receiving of the Registered Post by the addressee. For the same reason, the address of the sender of the Registered Post is mentioned on the Acknowledgment card and not the person to whom the Registered Post is sent. It is pertinent here to observe that the speed post as well as the Registered post have been sent on 27.08.2011 which is evident from Ex. CW1/D and Ex. CW1/E and in the light of the said postal receipts, the complaint can not be said to have been filed prematurely. Another submission given by the Accused for the purpose of supporting his argument pertaining to premature complaint is that a corrigendum to the legal notice (Ex. CW1/G) has been sent on 16.09.2011 i.e. the date on which complaint has been filed. It may be noted that the corrigendum has no bearing on the earlier legal notice (Ex. CW1/C) as such as the details of the cheque in question as well as the averment pertaining to dishonor of the Page No. 13 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma 14 same has been clearly mentioned in the same. Therefore, even the argument of the Accused pertaining to the maintainability of the present complaint does not stand its ground.
16. In these facts and circumstances as well as the detailed scrutiny of evidence, it is without any doubt that the Accused has been unable to rebut the presumptions raised against him under the NI Act. Due to the various contradictions in the stand taken by the Accused as well as the glaring inconsistencies in the testimony of the DW1, the defence taken by the Accused neither seems to be proved nor does it appear to be probable. Resultantly, the case of the Complainant is hereby proved beyond reasonable doubt.
17. In view of the above discussion, the Accused is hereby Convicted of the offence under section 138 of the NI Act. Let the Convict be now heard separately on the point of sentence.
Announced in the open court (VIDHI GUPTA)
on 01 Day of October, 2014.
st
MM/KKD/Delhi
This judgment contains 14 signed pages.
Page No. 14 To 14 Nirmal Kumari Sharma Vs. Umesh Chand Verma