Delhi District Court
Cc No.631503/16 Daljit Kaur vs Surjeet Singh on 25 September, 2019
CC No.631503/16 Daljit Kaur Vs Surjeet Singh
IN THE COURT OF SH. KAMRAN KHAN, MM (NIACT
02) (SOUTH EAST DISTRICT), SAKET COURT, NEW
DELHI
Old Case Number : 927/1/16
CC No. : 631503/16
CNR No. : DLSE020111482015
Date of filing : 03.02.2015
Date of Institution/ Registration: 05.02.2015
Date of Decision : 25.09.2019
Smt. Daljeet Kaur W/o Late Sh. Jagtar Singh, R/o 918B,
Second Floor, Gali No.8, Govind Puri, Kalkaji, New Delhi19.
......Complainant
Versus
Surjeet Singh S/o Sh. Taran Tej Singh, R/o C53, 2 nd Floor,
Mahendru Enclave, Model Town, New Delhi.
........Accused
Argued by: Sh. Shivam Garg, counsel for complainant.
Sh. Arun Kumar, Legal Aid Counsel for accused.
JUDGMENT: Complainant has filed the present complaint under Section 138 of Negotiable Instruments Act, 1881. Complainant has stated in her complaint that accused and her husband were friends and they used to visit each other. Complainant, further, stated in her complaint that in the second week of October, 2012 accused visited her house and told that his business is not going CNR No:DLSE020111482015 Page No. 1 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh smoothly and his wife was seriously ill and he was in need of financial help. The accused requested the complainant to give a friendly loan of Rs.5,00,000/ and promised to return the same within six months. The complainant told the accused that she has no money to give it to him. However, in order to help the accused, complainant arranged loan amount from her relatives i.e. Rs.1,50,000/ from her children, Rs.1,00,000/ from Sh. Charanjeet Singh and Rs.50,000/ from Sh. Harpreet Singh and on instructions of accused she deposited loan amount of Rs.3,50,000/ in the two bank accounts of the accused. It is further the case of the complainant that to discharge the said liability accused issued cheques bearing no.000187 dated 28.11.2013 & no.000188 dated 13.12.2013 both sum of Rs.50,000/ each drawn on Kotak Mahindra Bank, Branch Model Town, New Delhi 110009 (hereinafter referred as "cheques in question"). The cheques were presented for encashment but the same returned unpaid with reason "funds insufficient" vide bank returning memos dated 26.12.2013, 18.01.2014 and 28.02.2014. Thereafter, complainant issued a legal demand notice through his advocate on 07.03.2014. However, the accused failed to make the payment even after receiving the legal demand notice and hence the present complaint.
2. After taking presummoning evidence, accused was CNR No:DLSE020111482015 Page No. 2 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh ordered to be summoned in this case for commission of offence under Section 138 of Negotiable Instruments Act, 1881, vide order dated 05.02.2015.
3. Accused was apprehended and produced before the court on 25.07.2019, after being declared absconder vide order dated 14.03.2019. On finding a prima facie case, notice U/s 251 Cr.P.C. was served upon the accused on 03.08.2019 to which he pleaded not guilty and opted to contest after disclosing the following defence:
"I am not the signatory of the impugned cheques. I do not know the complainant. I have no liability towards the complainant."
4. In evidence, CW1 Ms. Daljeet Kaur adopted her pre summoning affidavit of evidence Ex. CW1/A in which she reiterated the averments of the complaint on Oath. She also relied upon following documents : Ex. CW1/1 : Cheque bearing no.000187 dated 28.11.2013 of Rs.50,000/.
Ex. CW1/2 : Cheque bearing no.000188 dated 13.12.2013 of Rs.50,000/.
Ex. CW1/3 : Bank returning memo dated
26.12.2013 with respect to
cheque bearing no.000187.
Ex. CW1/4 : Bank returning memo dated
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18.01.2014 with respect to
cheque bearing no.000187.
Ex. CW1/5 : Bank returning memo dated
18.01.2014 with respect to
cheque bearing no.000188.
Ex. CW1/6 : Bank returning memo dated
28.02.2014 with respect to
cheque bearing no.000187.
Ex. CW1/7 : Bank returning memo dated
28.02.2014 with respect to
cheque bearing no.000188.
Ex. CW1/8 : Legal demand notice dated
07.03.2014.
Ex. CW1/9 : Speed Post receipt dated
11.03.2014.
Ex. CW1/10 : Courier receipt dated 11.03.2014.
Ex. CW1/11 : Return envelope with the remarks
"refusal" dated 14.03.2014.
5. Besides this, complainant also examined Sh. Anand, Ahlmad in the court of Sh. Sanjeev Jain, Ld. ADJ04, SED, Saket as CW2 who brought the original file bearing CS no.210548/16 titled as "Daljeet Kaur Vs Surjeet Singh" decided on 15.01.2018 by the court of Ms. Neelofer Abida Perveen, the CNR No:DLSE020111482015 Page No. 4 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh then Ld. ADJ04, SED, Saket. He also proved following documents:
Ex. CW2/1 : Copy of Bank Challan dated
31.03.2013.
Ex. CW2/2 : Copy of Bank Challan dated
14.02.2013.
Ex. CW2/3 : Copy of Bank Challan dated
19.02.2012.
Ex. CW2/4 : Copy of Bank Challan dated
14.12.2012.
Ex. CW2/5 : Copy of Bank Challan dated
23.01.2013.
Ex. CW2/6 : Copy of Bank Challan dated
23.01.2013.
Ex. CW2/7 : Copy of Bank Challan dated
27.02.2013.
Ex. CW2/8 : Certified copy of judgment dated
15.01.2018 passed in CS
no.10548/16.
Complainant Evidence was closed vide separate statement on 30.08.2019.
6. Thereafter, accused was examined under Section 313 Cr.P.C. for explaining the circumstances appearing against him in complainant's evidence. He has denied the complainant's CNR No:DLSE020111482015 Page No. 5 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh case and pleaded false implication and opted not to lead evidence in his defence.
7. I have heard ld. Counsel for the complainant and have perused the case file carefully and meticulously.
8. Initiating the arguments, learned counsel for the complainant argued that, in discharge of the liability, accused issued the cheques in question (Ex. CW1/1 and 2) in favour of the complainant which got dishonoured due to the reason "Funds Insufficient". After getting the information regarding the dishonour of cheques, vide cheque returning memos Ex.CW1/3 to 7, complainant served a legal demand notice Ex.CW1/8 to the accused. However, even after having the knowledge of dishonour of cheques, the accused did not make the payment. It was further argued that no suggestion was given to the complainant / CW1 that no loan was received and there is no suggestion that legal demand notice was not received by the accused. Further, it was argued that no evidence is being led by the accused to rebut the presumption U/s 138 Negotiable Instruments Act, 1881. With these submissions, it was prayed that the accused be convicted for the offence committed U/s 138 Negotiable Instruments Act, 1881.
9. On the other hand, ld. LAC for the accused argued CNR No:DLSE020111482015 Page No. 6 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh that the complainant has miserably failed to prove any liability towards the accused in discharge of which the cheques in question were allegedly issued. It was argued that in the complaint it has not been mentioned as to when the alleged loan was given to the accused. Also, it was contended that the complainant has failed to prove her financial capacity to advance such a huge loan. Further, it was argued that the complainant has not called the relevant bank witness to prove as to in whose account amount was deposited. Also, it was argued that the complainant has not examined her son to corroborate her averments and further the legal demand notice was not served on the accused which is the mandatory requirement for prosecuting a person U/s 138 of Negotiable Instruments Act, 1881. Ld. LAC for the accused relied on case titled John P. Daniel Vs V. K. Vilasini, Crl. A.No.74/11 Hon'ble High Court of Kerala. With these submissions acquittal of the accused and dismissal of the complaint was prayed.
10. After hearing Ld. Counsel for the parties and having perused the case file carefully and meticulously this court is of the opinion that in order to bring home the guilt against the accused, complainant is duty bound to prove the following ingredients:
a) Drawing of cheque by a person on any account CNR No:DLSE020111482015 Page No. 7 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh maintained by him with a banker for payment to another person out of that account.
b) The cheque has been issued for the discharge, in whole or in part, of any legal and enforceable debt or other liability.
c) Presentation of the cheque by the payee or the holder in due course to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier.
d) Returning the cheque unpaid by the drawer bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque.
e) Giving notice within 30 days of receipt of the information by the payee from the bank regarding the return of the cheque as unpaid, demanding payment of the cheque amount.
f) Failure of the drawer to make payment to the payee or the holder in due course of the amount covered by the cheque within 15 days of the receipt of notice.
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11. It goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence U/s 138 of Negotiable Instruments Act, 1881.
12. In the case in hand, it is not in dispute that the cheques in question are drawn by the accused from his bank account as in the admission / denial carried out U/s 294 Cr.P.C. accused admitted the same. Presentation of the cheques in question by the complainant is also not in dispute. Returning memos Ex. CW1/3 to 7 are also undisputed i.e., the cheques in question were returned unpaid for the reason "Funds Insufficient". Accused also admitted the return memos at the stage of admission / denial of documents carried out U/s 294 Cr.P.C. However, it is to be noted that cheque Ex. CW1/1 is dated 28.11.2013. The said cheque was presented for encashment three times i.e. on 26.12.2013, 18.01.2014 and 28.02.2014. The validity of the said cheque was three months from the date of issue i.e. till 27.02.2014. However, complainant presented the cheque Ex. CW1/1 for the last time on 28.02.2014 i.e. after the expiry of its validity. Hence, for the said ground alone present complaint is not maintainable qua cheque Ex. CW1/1 i.e. cheque bearing no.000187 dated 28.11.2013 and the complaint stands dismissed qua the said cheque.
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13. Now, coming to the second cheque in question i.e. cheque bearing no.000188 dated 13.12.2013 Ex. CW1/2. The said cheque was presented for encashment twice i.e. on 18.01.2014 and 18.02.2014 which is within the period of its validity. The relevant return memo for the cheque Ex. CW1/2 is Ex. CW1/7 dated 28.02.2014. Complainant sent the legal demand notice dated 07.03.2014 (Ex.CW1/8) to the accused at C53, Second Floor, Mahendru Enclave, Model Town, Delhi. It has been argued by the ld. LAC for the accused that the accused had not been served with the legal demand notice.
14. On this point i.e., whether legal demand notice was served on the accused or not, this court is of the opinion that the legal demand notice Ex. CW1/8 was sent to the accused at his correct address and it was the same address as disclosed by the accused during the trial. As the legal demand notice Ex. CW1/8 was sent on the correct residential address of the accused, therefore, a presumption of due service is drawn U/s 27 of General Clauses Act which provides that where the notice is sent to the correct address, the same shall be presumed to have been duly served. In M/s Darbar Exports and other Vs Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the Hon'ble High Court of Delhi held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. Further, the Hon'ble Supreme Court in C.C. CNR No:DLSE020111482015 Page No. 10 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh Alavi Hazi Vs Palapetty Muhammad & Anr, (2007) 6SCC 555 has held that"Any drawer who claims that he did not receive the notice by post, can, within 15 days of receipt of summons from the court in respect of the complaint U/s 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 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 complaint U/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required U/s 138, by ignoring statutory presumption to the contrary U/s 27 of the General Clauses Act and Section 114 of the Evidence Act.".
15. Thus, keeping in view that except mere denial of receipt of legal demand notice, no evidence in rebuttal has been led by accused and also keeping in view the dictum of the Hon'ble Apex Court, the legal demand notice Ex. CW1/8 is held to have been duly served upon the accused.
16. It is to be noted that initially complainant filed a complaint on 03.04.2014. However, vide order dated 29.10.2014 the said complaint was returned to the complainant on the point of territorial jurisdiction and in view of case titled Dashrath CNR No:DLSE020111482015 Page No. 11 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh Rupsingh Rathod Vs. State of Maharashtra Crl. Appeal No. 2287 of 2009. As per the endorsement, complaint was return to the complainant on 31.01.2015. Thereafter, complainant refiled the present complaint on 03.02.2015 i.e., within 30 days of its return. Hence, the complaint has been filed within the limitation period. Therefore, essential ingredients mentioned from (a) to (f) [except point b] in para no.10 above have duly satisfied qua cheque Ex. CW1/2 bearing no.000188 dated 13.12.2013.
17. The only question remaining for determination is whether legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of said liability / debt. It is pertinent to note that Section 139 of Negotiable Instruments Act provides a statutory presumption that the cheque was handed over in respect of the debt or other liability. Under Section 118 of the Negotiable Instruments Act, 1881 every negotiable instrument is presumed to have been drawn and accepted for consideration. In the case of K.N. Benna vs Muniyaapan AIR 2001 SC 2895, it was observed as follows:
"Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten. P. Dalal vs Bratindranath Banarjee reported in (2001) 6 SCC 16 has also taken an identical view."CNR No:DLSE020111482015 Page No. 12 of 18
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18. The Hon'ble Supreme Court, in the case of Hiten. P. Dalal vs Bratindranath Banarjee (2001) 6 SCC 16, observed as follows:
"Because both Section 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid).
19. Also, in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
20. Further, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of CNR No:DLSE020111482015 Page No. 13 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh proof for doing so is that of "preponderance of probabilities". In Rangappa vs. Srimohan (2010) 11 SCC 441, the Hon'ble Supreme Court has observed:
"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 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 test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. 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 doubts 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 CNR No:DLSE020111482015 Page No. 14 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh need to adduce evidence of his/her own."
21. Thus, as laid down in catena of decisions, it is an established law that onus lies upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumptions envisaged by Section 118 and 139 of the Negotiable Instruments Act, 1881.
22. As discussed above, in this case, presentation of cheque in question (Ex. CW1/2), its dishonour and service of legal demand notice is not disputed as it has been proved by cogent evidence. The primary defence of the accused, as culled out from the notice U/s 251 Cr.P.C. and statement recorded U/s 313 Cr.P.C. is that the accused is not the signatory of the impugned cheques and he do not know the complainant. However, no evidence is being led by the accused to prove that he is not the signatory of the cheque in question Ex. CW1/2. No application is moved by the accused to send the cheque Ex. CW1/2 for expert examination to prove that he is not the signatory of the same. Further, it is also to be noted that the cheque Ex. CW1/2 has been dishonoured for the reason "funds CNR No:DLSE020111482015 Page No. 15 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh insufficient" and not for the reason "drawer signatures differ". It also, to some extent, shows that the accused is a signatory of the cheque in question Ex. CW1/2.
23. Moving ahead, it is also to be noted that the complainant had also filed a civil suit for recovery of Rs.3,72,000/ against the accused and the said suit was decreed in favour of the complainant vide judgment Ex. CW2/8 and it has been held by the Ld. ADJ04, SED, Saket that the accused (defendant in the civil suit) had cordial and family relations with the husband of the complainant (plaintiff in the civil suit) and complainant deposited Rs.3,48,300/ in the bank account of accused i.e., ICICI Bank account no.016001026992 and PNB Bank account no.0618002100135274. Complainant has also filed the copy of the said bank challans as Ex. CW2/1 to Ex. CW2/7. Hence, the said bank challans prove beyond reasonable doubt that the complainant deposited Rs.3,47,500/ in the bank accounts of the accused. Ld. LAC for the accused had argued that the complainant has not examined the bank witness to prove the aforesaid bank challans. However, perusal of the judgment Ex. CW2/8 shows that in the civil suit the complainant had duly examined the bank officials of PNB Bank and ICICI Bank who had proved the relevant account statements. Hence, there was no requirement on the part of the complainant to prove the bank challans Ex. CW2/1 to Ex. CW2/8 and the onus was on the CNR No:DLSE020111482015 Page No. 16 of 18 CC No.631503/16 Daljit Kaur Vs Surjeet Singh accused to prove the no such amount was deposited by the complainant in his bank accounts which the accused has failed to discharge.
24. Ld. LAC for accused had also argued that complainant had failed to prove that she was financial capable to give such a huge amount of loan to the accused. However, this argument of Ld. LAC for the accused holds no merits as in the complaint, complainant had specifically disclosed that she arranged the loan amount from her children, from one Sh. Charanjit Singh and one Sh. Harpreet Singh. Further, it is to be noted that present is not a case where the complainant has stated to have given the loan in cash to the accused. Rather, in the present case the loan amount was deposited in the bank accounts of the accused as per the bank challans Ex. CW2/1 to Ex. CW2/7. The onus was on the accused to prove that he had not taken any loan from the complainant and he was not the signatory of the cheques in question and he do not know the complainant. However, as already pointed above, no evidence is being led by the accused to prove his defence. Mere disclosing of the defence and stating the same in the statement of accused U/s 313 Cr.P.C. will not be sufficient for the accused to absolve from the liability. He was required to lead evidence to prove his defence but accused choose not to lead any.
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25. In these circumstances and in view of the above detailed discussion, this court is of the considered opinion that accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881 in favour of the complainant and ingredients of Section 138 of Negotiable Instruments Act, 1881 are fully proved. Accordingly, accused is held guilty and convicted for commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881 with respect to cheque Ex. CW1/2 bearing no.000188 dated 13.12.2013 only. Let he be heard on the quantum of sentence on 27.09.2019 at 2.00pm.
Announced in Open Court (Kamran Khan)
25.09.2019 MM (NIAct 02), South East
Saket Court, New Delhi
Note: This judgment contains 18 pages and each page has been signed by me.
(Kamran Khan) MM (NIAct 02), South East Saket Court, New Delhi CNR No:DLSE020111482015 Page No. 18 of 18