Delhi District Court
M/S Mcf Finlease Pvt. Ltd vs . on 24 February, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
M/s MCF Finlease Pvt. Ltd.
Vs.
Vijay Kumar
C.C. No.950/14
P.S.: Vikas Puri U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 22.09.2012
b) Name of Complainant M/s MCF Finlease Pvt. Ltd. through its director S.P. Chawla. B204, Vikas Tower, Community Centre, Vikaspuri, New Delhi110018.
c) Name of the accused and Vijay Kumar S/o Sh. Sohan Lal, R/o Address: A689, Mahavir Enclave, PartII, Gali No.18, New Delhi110059.
d) Offence complained of: U/s 138 N.I. Act e) Plea of accused: Pleaded not guilty f) Final order: Conviction g) Date of order: 24.02.2014 h) Date of institution of case: 28.09.2012 i) Date of decision of case: 24.02.2014
Brief facts and reasons for decision of the case:
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1. The present case been instituted upon a complaint made by MCF Finlease Pvt. Ltd. (hereinafter referred as 'the complainant') against Vijay Kumar (hereinafter referred as 'the accused'), alleging that a short term personal loan of Rs.1,00,000/ was provided to the accused on 15.05.2012. A post dated cheque bearing no.'623827' dated 18.07.2012 in sum of Rs.1,04,000/ (Ex.CW1/7) was issued by the accused in discharge of his liability. On presentation, the said cheque was dishonoured for the reasons and remarks 'Account is inoperative/dormant' vide bank memo dated 19.07.2012 (Ex.CW1/8). On receipt of intimation of dishonour, a legal demand notice dated 13.08.2012 (Ex.CW1/9) was dispatched to the accused via registered post of even date (postal and courier receipts are Ex.CW1/10 to Ex.CW1/13). It is alleged that the payment was not made good within the statutory period despite service of notice.
Hence, the present complaint u/s.138 N.I. Act has been filed.
2. During the complainant's evidence, Sh. S.P. Chawla, director of MCF Finelease Pvt. Ltd. (authorized representative) was CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 2 of 8 3 examined as sole witness. He filed his evidence by way of affidavit Ex.CW1/A. Besides the documents detailed in preceedings paragraph, complainant also filed and relied upon the board resolution (Ex.CW1/1), certificate of incorporation (Ex.CW1/2), a certificate u/s.303(2), companies act (Ex.CW1/3), a receipt signed by the accused (Ex.CW1/4), promissory note (Ex.CW1/5), an acknowledgement letter singed by the accused (Ex.CW1/6) & statement of account (Ex.CW1/14 & Ex.CW1/15).
3. The complainant's witness was cross examined at length by ld. Counsel for the accused.
4. Complainant's evidence was followed by the statement of accused U/s. 313 CrPC, wherein, the entire incriminating evidence was put to the accused. During the statement, accused denied of having availed any loan from the complainant in 2012. he stated that he had availed a loan facility in 2009 and thereafter no loan was availed from the complainant. Accused also denied his signatures CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 3 of 8 4 on documents Ex.CW1/4 to Ex.CW1/6. Regarding the impugned cheque, he deposed that same was issued as blank signed for security in 2009. Accused stated that documents Ex.CW1/14 and Ex.CW1/15 were forged and fabricated. However, receipt of legal demand notice was admitted by him.
5. During the defence evidence, accused examined himself as DW1 u/s.315 CrPC. During the statement, he repeated the entire story narrated by him during his statement u/s.313 CrPC, as detailed in the preceeding paragraph.
6. I have perused the record and heard the arguments from the ld. Counsels appearing for both the parties. Now, I proceed with the judgment.
7. The only defence pleaded by the accused is that he did not avail any loan facility from the complainant in 2012. Impugned CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 4 of 8 5 cheque was issued blank signed for purpose of security at the time of availing vehicle loan in 2009.
8. To establish the alleged loan of Rs.1,00,000/ and liability of accused, the complainant filed document Ex.CW1/4 to Ex.CW1/6. Document Ex.CW1/4 is a acknowledgement receipt, wherein the accused has received the amount of Rs.1,00,000/ from the complainant. Ex.CW1/5 is promissory note duly signed by the accused. Document Ex.CW1/6 is a letter allegedly written by the accused to the Director, MCF Finelease wherein, the accused has clearly and categorically requested the complainant to advance a loan of Rs.1,00,000/ and the issuance of impugned cheque has also been mentioned.
9. At the time of framing of notice u/s.251 CrPC, accused admitted his signatures on documents Ex.CW1/4 to Ex.CW1/6. However, during the later stage of trial, he denied his signatures on the above documents.
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10. The above documents questioned by the accused have to be read in context of the spirit of legislation under which the offence under consideration has allegedly been committed. Initially accused admitted his signatures upon documents Ex.CW1/4 to Ex.CW1/6 and subsequently denied the same. On recovery of forgery of signatures and a consequential complaint based on forged documents, the first step which a person of ordinary prudence would take is to lodge a complaint regarding the same. But no such step was taken by the accused. If the documents were forged, an appropriate application should have been moved to send the documents for opinion of handwriting expert. However, no such application was moved. The conduct shows that denial of signatures on documents Ex.CW1/4 to Ex.CW1/6 is a afterthought to evade the liability.
11. Moreover, the signatures on the impugned cheque are admitted by the accused. This fact alone is sufficient to raise various CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 6 of 8 7 statutory presumptions u/s.118 & 139 N.I. Act in favour of the complainant. Now, the onus to rebut these presumptions, lies upon the accused.
12. However, accused failed to lead any cogent evidence to shift the burden upon the complainant. Hence, the statutory presumptions gone unrebutted. Infact, presumptions are further fortified by the other corroborative documents mentioned above (Ex.CW1/4 to Ex.CW1/6).
13. Further, the dishonour of cheque is proved by the return memo Ex.CW1/8. The service of legal demand notice is admitted by the accused during his statement u/s.313 CrPC.
14. Conclusion is, the accused has clearly admitted his liability via documents Ex.CW1/4 to Ex.CW1/6. It is proved that impugned cheque was issued by the accused in discharge of his liability. Other CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 7 of 8 8 ingredients of offence u/s.138 N.I. Act are also proved. Accused failed to rebut the statutory presumptions. He stands convicted accordingly.
(Announced in the open court on 24.02.2014) This Judgment contains 8 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.950/14; MCF Finlease Pvt. Ltd. Vs. Vijay Kumar Page 8 of 8