Delhi District Court
Case No. : 121/12 Icsl vs . Virender Gaur 1 / 19 on 21 November, 2012
1
IN THE COURT OF MS. MANU GOEL KHARB
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI
In Re: Case No. : 121/12
U/s. 138 Negotiable Instrument Act
1. CC No. : 121/12
2. Date of Institution : 22.11.2011
3. Name of the complainant, : India Bulls Financial
Parentage and residence Services Ltd.
(Through Authorised
Representative)
Registered Office at :
F-60, Second
Floor, Malhotra
Building, Connaught
Place, New Delhi-110070
4. Name of accused, his : Virender Gaur
parentage and residence GH 1/333, MIG Flat,
Paschim Vihar,
New Delhi : A One
Lal, Delhi-110063
Also at
Shop No.1
Jawahar Lal Main
Market, Nr. Brijwasin
Sweets;
New Delhi-110063
Case no. : 121/12 ICSL Vs. Virender Gaur 1 / 19
2
5. Date when Judgment : 21.11.2012
was reserved
6. Date when Judgment
was pronounced : 21.11.2012
7. Offence complained of : U/s. 138 NI Act
8. Plea of accused : Not guilty
9. Final Judgment : Convicted
- :: JUDGMENT :: -
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant Indiabulls Financial Service Ltd. through its attorney Sh. Mahesh Kumar against the accused Virender Gaur S/o Sh. S.C. Sharma.
2. The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, the Case no. : 121/12 ICSL Vs. Virender Gaur 2 / 19 3 accused has approached the complainant company and requested for PL Plus Loan and a loan of Rs. 3.5 lacs was sanctioned to the accused vide loan A/c No. S000139111 and the complainant disbursed the above PL Plus Loan to the accused through Cheque. In discharge of his liability accused has issued three cheques bearing number 862190, 862189, 862188 respectively, all dated 04.10.2011 for a sum of Rs. 13,916/- each drawn on ICICI Bank, Punjabi Bagh Branch(West), Delhi in favour of the complainant. However, on presentation of the same it was dishonoured vide cheque returning memos all dated 07.10.2011 for the reasons " Insufficient Funds" . The complainant has thereafter given a legal notice of demand dated 15.10.2011 to the accused which was sent by registered post on 17.10.2011 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand as a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
3. After the complaint was filed, the Authorized Case no. : 121/12 ICSL Vs. Virender Gaur 3 / 19 4 Representative (AR) of the complainant led his pre-summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 01.12.2011 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. dated 24.03.2012 was given to the accused in which he has admitted that he had received the legal notice of demand and further he pleaded not guilty and claimed trial.
4. Sh. Mahesh Kumar, AR of the complainant got himself examined as CW-1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence which is Ex.CW-1/J. He got exhibited original cheques dated 04.10.2011 before the court as Ex.CW1/D1, Ex.CW1/ D2, Ex.CW1/D3 respectively and the cheque returning memos all dated 07.10.2011 as Ex.CW1/E1, Ex. CW1/E2, Ex.CW1/E3, the legal notice of demand dated 15.10.2011 as Ex. CW-1/F, registered post receipt vide which the aforesaid notice was sent alongwith Case no. : 121/12 ICSL Vs. Virender Gaur 4 / 19 5 the internet generated speed post tracking reports both dated 17.10.2011 which is Ex.CW1/G and Ex.CW1/H and statement of account of accused which is Mark A. Thereafter, AR Sh. Mahesh Kumar was cross examined by Ld. Counsel for the accused.
5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to the accused Virender Gaur in which he has admitted the factum of loan of Rs. 3.5 lacs. He had stated that the cheques in question were given to the complainant but the same were given in blank as security cheques. He has further stated that he had put on signatures on the cheques in question but has denied the receipt of legal notice of demand in his statement u/s. 313 Cr. P. C.
6. Thereafter the case was fixed for defence evidence. Accused placed on record photocopy of transaction sheet maintained by him regarding issuance of cheque as EX. DW1/1 and the accused himself deposed as DW1. The accused was duly cross examined by Ld. counsel for the complainant. Case no. : 121/12 ICSL Vs. Virender Gaur 5 / 19 6 Thereafter, the defence evidence was closed at request of Ld. counsel for the accused and the case was fixed for final arguments.
7. Final Arguments were addressed on behalf of both the parties.
I have heard Ld. Counsels for both the complainant and the accused and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
8. Before proceeding further let us go through the relevant provisions of law. The main ingredients of Section 138 of the Negotiable Instruments Act are as follows:-
i) The accused issued a cheque on an account maintained by him with a bank.
ii) The said cheque has been issued in discharge of any legal debt or other liability.
Case no. : 121/12 ICSL Vs. Virender Gaur 6 / 19 7
iii) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv) When the aforesaid cheque was presented for encashment, the same was returned unpaid/dishonoured.
v) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
vi) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
9. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case Case no. : 121/12 ICSL Vs. Virender Gaur 7 / 19 8 against the accused has been proved or not.
10. WHETHER THE CHEQUE WAS ISSUED OR NOT?
The accused has himself admitted to have signed the cheque in question while answering to the question at the time of framing of notice U/s 251 Cr. PC. Further while answering to the question U/s 313 Cr.PC the accused has admitted to have given the cheque in question to the complainant but he stated that the same was given in blank only after putting his signatures there for purpose of security. Therefore, so far as signing and delivery of the cheque in question by the accused is concerned the same is not disputed.
In view of the evidence on record it stands proved that the cheque in question was issued by the accused.
11. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY?
Perusal of the record reveals that the cheques in question all dated 04.10.2011 which are Ex.CW1/D1, Ex.CW1/D2, Case no. : 121/12 ICSL Vs. Virender Gaur 8 / 19 9 Ex.CW1/D3 got dishonored vide cheque returning memos which are Ex.CW1/E1, Ex.CW1/E2, Ex.CW1/E3 respectively, all dated 07.10.2011.The cheque returning memos are not disputed by the accused, therefore, it stands proved that the cheques in question were presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
12. DISHONOUR OF CHEQUE IN QUESTION In the instant case Sh. Mahesh Kumar who has appeared as complainant witness has got exhibited the cheque returning memos which are Ex.CW1/E1, Ex.CW1/E2, Ex.CW1/E3 and all of which got dishonored for the reasons "Funds Insufficient". The dishonor of the cheques in question has not been disputed by the accused nor the cheque returning memos has been challenged by the accused.
Therefore, considering the entire evidence on record it stands duly proved that the cheques in question were dishonored vide cheque returning memos Ex.CW1/E1, Ex.CW1/E2, Ex.CW1/E3 respectivly, all dated 07.10.2011 with the reasons Case no. : 121/12 ICSL Vs. Virender Gaur 9 / 19 10 " Funds Insufficient" .
13. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Sh. Mahesh Kumar who has appeared as complainant's witness has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 15.10.2011 which is Ex.CW1/F and which was sent to the accused on both the addresses on 17.10.2011 vide registered post receipt which alongwith the internet generated speed post tracking reports is Ex.CW1/G and Ex.CW1/H. The accused has admitted during the framing of notice under section 251 CrPC that he received the legal notice of demand from the complainant regarding the dishonor of cheque. However, in his statement under section 313 CrPC, and further during his cross examination by the counsel for the complainant, the accused has denied the receipt of legal notice of demand.
Case no. : 121/12 ICSL Vs. Virender Gaur 10 / 19 11 " There is presumption U/s 27 of General Clauses Act in favour of the complainant that properly addressed documents sent by the registered post is deemed to have been delivered if not returned back."
I have perused the legal notice of demand. It bears the correct address of the accused and the UPC receipt issued by the postal authorities in ordinary course is also on record. Moreover, the summons were served at the aforesaid address and the accused has put in appearance in compliance thereof. Also, the address furnished by the accused himself on his bail bond is the same address which is mentioned on the legal notice of demand sent to the accused.
In " C.C. Alavi Hazi Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court case 555, it was held that the course open to the drawer where he claims not to have received the notice sent by post but has received copy of the complaint with the summons is that he can within 15 days of the receipt of summons make payment of the cheque amount and he then cannot contend that there was no proper service of notice.
Considering the evidence on record and mandate Case no. : 121/12 ICSL Vs. Virender Gaur 11 / 19 12 given in abovementioned judgment, I am of the considered opinion that the legal notice of demand was served upon the accused.
14. WHETHER THE CHEQUE IN QUESTION WAS ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY?
In the case in hand Authorized Representative (hereinafter referred to as AR) of the complainant has stated in his examination in chief by way of affidavit that the cheques in question were issued by the accused on 04.10.2011 in partial discharge of his legal liability and in his cross examination, he submitted that cheques in question were given towards payment of EMI amount.
Before deciding this issue let us go through the relevant provisions of law.
Section 46 of the Negotiable Instruments Act speaks of the delivery, it reads as follows:-
" The making, acceptance or endorsement of a promissory notice, bill of exchange or cheque is completed Case no. : 121/12 ICSL Vs. Virender Gaur 12 / 19 13 by delivery, actual or constructive."
Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made.
(b) As to date - that every Negotiable Instrument bearing a a date was made or drawn on such date.
Moreover, there is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
Now the Court shall examine whether the accused is successful in rebutting the presumption as contemplated by Case no. : 121/12 ICSL Vs. Virender Gaur 13 / 19 14 Section 118 (b) and Section 139 of Negotiable Instruments Act.
Accused has stated in statement U/s 313 r/w 281 Cr.PC that he delivered the cheques in question to the complainant in blank and only after putting his signatures there as a security and the name INDIA BULLS written on the same. Accused in his examination as DW1 has stated that at the time of depositing of loan documents, he had given 7-8 blank signed cheques as security cheques.
As to rebut the presumption under section 118(b) of the Act, accused brought on record the transaction sheet maintained by him regarding issuance of cheques which is Ex.DW1/1 and which contains the details of the 24 cheques bearing nos. 862168 to 862191, which includes the cheques in question EX. DW.1/1 to EX. DW.1/3 i.e. 862188, 862189 and 862190, given by the accused to the complainant. Accused was cross examined by the counsel for the complainant on the point of security cheques wherein the accused has stated that he did not take any receiving from the complainant while handing over the cheues.
Case no. : 121/12 ICSL Vs. Virender Gaur 14 / 19 15 Perusal of Ex.DW1/1 shows that it contains the transaction sheet maintained by the accused regarding the cheques issued by him. This is a personal record of the accused which is written/filled by the accused himself and produced by him from his custody. Therefore, much reliance cannot be placed upon it as it is a self serving document of the accused.
Apart from document EX. DW.1/1, accused has not produced on record anything else to prove that the said cheques were security cheques.
Complainant has placed on record statement of account of accused which is Mark A. It is clear in the statement of account of accused that the accused has paid only 14 EMIs out of 36 EMIs and defaulted in the payment of remaining 22 EMIs. Further, the statement of account of the accused also shows that cheques bearing nos. 862188, 862189 and 862190 issued by the accused were dishonored due to "insufficient funds" which also proved that the accused had issued the cheques in discharge of his legal liability towards payment of his defaulted EMIs.
Moreover, in M/s Jammu & Kashmir Bank vs. Abhishek Mittal, 2012 CD DCR 189, Delhi High Court has Case no. : 121/12 ICSL Vs. Virender Gaur 15 / 19 16 held:-
"When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank wheich he has left. A person issuing a blank cheuqe is supposed to understand the consequences of doing so. He cannot escape his liabiltiy only on the ground that blank cheque has been issued by him" (Para 6).
" Once issuance of the cheque has been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the Act for the discharge, in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is Case no. : 121/12 ICSL Vs. Virender Gaur 16 / 19 17 a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque. Accordingly, a presumption arises in favour of the appellant and against respondent that the cheque had been issued in discharge of any debt or other liability. It was for the respondent to rebut this presution which he has miserably failed to do so (Para
7)"
It is no longer Res-Integra that mere averments by the accused without placing on record any cogent proof is not sufficient to rebut the mandatory presumption incorporated in the statute by enacting Section 118 (b) and section 139 Negotiable Instruments Act. Therefore, presumptions holds good and according to which cheques were issued on the date mentioned on it i.e. 04.02.2010 and were received by the complainant for the discharge of legal debt or liability.
Considering the evidence on record, I am of the opinion that the accused has failed to rebut the presumptions u/s 118 (a), (b) and section 139 of Negotiable Instruments Act.
Therefore, it stands duly proved that the cheques in question which are EX.CW1/D1, Ex.CW1/D2, Ex.CW1/D3 were Case no. : 121/12 ICSL Vs. Virender Gaur 17 / 19 18 issued and drawn in discharge of legal liability of the accused and for consideration.
15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case, Mahesh Kumar who has appeared as complainant's witness has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount within 15 days of receipt of legal notice of demand.
Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand.
16. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubt. All the ingredients of section 138 of Negotiable Instrument Act have been Case no. : 121/12 ICSL Vs. Virender Gaur 18 / 19 19 duly proved on record by the complainant against the accused. Accordingly, accused Sh. Virender Gaur S/o Sh. Suresh Chand Sharma is hereby convicted of the offence u/s 138 Negotiable Instruments Act.
Let the copy of this judgment be supplied to the accused.
Announced in open court Manu Goel Kharb
on 21st November, 2012 Metropolitan Magistrate (Municipal)
Dwarka Courts, New Delhi / 21.11.2012.
Case no. : 121/12 ICSL Vs. Virender Gaur 19 / 19