Delhi District Court
Pardeep Malik vs Amarjeet Singh on 22 November, 2017
IN THE COURT OF SH. ASHUTOSH KUMAR, SPECIAL
JUDGE02 (P.C.ACT), CBI, NORTHWEST DISTRICT,
ROHINI COURT, DELHI
CR No: 202/2017
Pardeep Malik
S/o late Sh. Prem Singh,
R/o House No. D11/132133,
Sector7, Rohini,
New Delhi85
.........Revisionist
Vs
Amarjeet Singh
S/o Sh. Ranvir Singh
R/o D12/21, Sector7,
Rohini.
Also at:
E16/456, Sector8,
Rohini,Delhi85.
Date of Institution : 02.11.2017
Date of reserving the order : 22.11.2017
Date of order : 22.11.2017
Present: Sh. Neeraj Bansal, learned Counsel for
revisionist/accused.
Sh. Arun Khatri, learned Counsel for
respondent/complainant.
Arguments on revision petition heard. Perused the record
including the TCR.
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ORDER
1. The challenge in the present revision petition u/s 397/399/401 Cr.P.C filed by the revisionist/accused is to the impugned order dated 07/09/2017 passed by Sh. Ravinder SinghII, learned Metropolitan Magistrate03, NorthWest, Rohini, in C.C. No.63/04/16 titled as "Amarjeet Singh Vs Pardeep", u/s 138 of Negotiable Instruments Act, whereby the application of the accused for discharge was dismissed.
2. From the TCR, it is clear that the learned Trial Court was proceeding in the matter as per the procedure prescribed for summons triable complaint case. In the entire Cr.P.C. including Section 251 Cr.P.C., there is no concept of discharge of an accused in a summons triable complaint case at the stage of framing of notice u/s 251 Cr.P.C. In the case of Amit Sibal Vs Arvind Kejriwal & Ors, 2016 SCC OnLine SC 1516, although it was not specifically stated by Hon'ble Supreme Court that Magistrate has no power to discharge an accused in a summons triable complaint case u/s 138 N.I. Act but it appears from the said judgment that Magistrate has no such power.
3. Since learned counsel for the revisionist/accused has relied upon Tanmay Mukhopadhyay Vs State & Anr., 2015 (3) JCC (NI) 194, M.G. Attri Vs S.K. Jain, 2013 (2) C.C. Cases (HC) 512, Bhushan Kumar & Anr. Vs State (NCT of Delhi) & Anr., 2012 (3) JCC 1625, Avnish Jain & Anr. Vs State (NCT of Delhi) & Anr., 2015 (3) Civil Court Cases 378 (Delhi), to CR No:202/17 Pradeep Malik Vs Amarjeet Singh 2 of 6 submit that it is obligatory for a Magistrate to consider the material including the plea taken by the accused at the stage of notice u/s 251 Cr.P.C. for the offence u/s 138 N.I. Act, therefore this Court is proceeding to deal with the matter assuming that the learned Metropolitan Magistrate had power to discharge the accused.
4. On merits, the first plea taken by the revisionist/accused is that in para No. 1 of the complaint it is mentioned by the complainant that loan was to be returned by the accused before December, 2015, whereas in para No.5 it is mentioned that the accused will repay the loan amount within one year. The next plea taken by the revisionist/accused is that in para No.6 of the complaint it is mentioned that the cheque in question has been issued by the complainant for the satisfaction of the witness. It is also the plea of the revisionist/accused that except for his signatures, no other particulars in the cheque have been filled in by the accused.
5. The operating part of the impugned order of learned Trial Court is reproduced as under: "The present case pertains to dishonour of cheque allegedly issued by accused to the complainant for discharging his liability which is an offence u/s 138 of the NI Act. Further since the cheque has been admittedly signed by accused as has happened in this case presumption u/s 139 NI Act is casted upon the accused which is for the accused to rebut during the trial proceedings. At the threshold mere certain contradictions made by complainant in CR No:202/17 Pradeep Malik Vs Amarjeet Singh 3 of 6 his complaint does not give itself rights to the accused for seeking discharge in this case. Further the accused would get every opportunity to crossexamine the complainant on every vital aspect just to disprove the case of the complainant. As such I do not find any merits in the application of the complainant. Hence the same is dismissed."
6. The aforesaid contradictions/discrepancies pointed out by learned counsel for the revisionist are because some parts of the complaint have been mentioned in piecemeal way in revision petition. The complaint has to be read in its entirety and if done so, no inference that no case u/s 138 N.I. Act is made out against the revisionist or that he is entitled for discharge of the said offence, is made out. Once the complainant has categorically claimed in the complaint as well as in his affidavit of pre summoning evidence that the cheque in question was issued by the accused in discharge of his liability of returning the loan in question and the said cheque bounced on presentation during its validity period and thereafter a legal notice of demand was sent and served upon the accused and thereafter the complaint was filed within limitation and the accused has not denied that the cheque in question belongs to him and bears his signatures, in such circumstances, the presumption u/s 139 of N.I. Act arises. The duty is casted upon the revisionist/accused to rebut such presumption during the trial by bringing sufficient material during crossexamination of complainant's witnesses or by leading evidence in his own defence. At the initial stage of framing of notice u/s 251 Cr.P.C. for the offence u/s 138 N.I. Act, the CR No:202/17 Pradeep Malik Vs Amarjeet Singh 4 of 6 aforesaid contradictions pointed out by the revisionist/accused are not sufficient to discharge the accused especially in view of the submission of learned counsel for respondent that the discrepancy pointed out in para No.6 of the complaint is a typographical error and shall be clarified during evidence. Even otherwise, it is well settled that the disputed questions of fact are matter of evidence. In M/s Jammu & Kashmir Bank Vs. Abhishek Mittal, 2012 CD DCR 189, it was held by Hon'ble Delhi High Court as under: "When a blank cheque is signed and handed over, it means that the person signing it has given the implied authority to the holder of the cheque, to fill up the blanks which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque has been issued by him.
Once issuance of the cheques 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 a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque."
Also in the case of Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) ELT 682, it was observed by Hon'ble Delhi High Court as under: "There is no rule of the banking business that the name of the payee as well as the amount should be written by drawer himself. No law provide that in case of cheque the entire body has to CR No:202/17 Pradeep Malik Vs Amarjeet Singh 5 of 6 be written by the drawer only."
Thus there is no force in the argument of learned Counsel for revisionist that no notice for the offence u/s 138 N.I. Act can be served upon the revisionist as he had merely signed the cheque in blank and rest of details were got filled in by respondent/complainant. Considering the totality of aforesaid facts and circumstances, I am of the considered opinion that there is no illegality or infirmity in the impugned order and no ground for discharge of accused is made out. Accordingly the revision petition is dismissed.
7. A copy of this order alongwith TCR be sent back to Ld. Trial Court for further proceedings as per law on 29/11/2017. Parties are directed to appear before the said Court on that date.
8. Revision file be consigned to Record Room.
Announced in the Open Court (Ashutosh Kumar)
on 22/11/2017 Special Judge02 (P.C. ACT), CBI
Distt. N/W, Rohini Courts, Delhi
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