Delhi District Court
3. Title Of The Case : Om Prakash Jain vs Parmod Kumar & Ors. on 14 September, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0084/1/02
2. Unique I.D. No. : 02401R03207020
3. Title of the Case : Om Prakash Jain vs Parmod Kumar & ors.
CC No. 84/1/02
PS : Jama Masjid
U/s 138 NI Act
4. Date of Institution : 02.05.2002
5. Date of reserving judgment : 05.09.2012
6. Date of pronouncement : 14.09.2012
J U D G M E N T :
a) The Sl. No. of the case : 0084/1/02
b) The date of commission
of offence : March 2002
c) The name of complainant : Sh. Om Prakash Jain
S/o Late Sh. S.C.Jain,
Prop. of M/s Om Prakash Sanjiv Kumar Jain,
Shop No.15, Mela Ram Market,
Chawri Bazar, Delhi110006
d) The name of accused : 1) Sh. Parmod Kumar,
R/o C2/219, Yamuna Vihar,
Delhi110053
2) Sh. Sudhir Kumar (PO)
Partner of M/s Parmod & Co. ,
CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page
1
of 10
2546, Nai Wara, Chawari Bazar,
Delhi110006
e) The offence complained of : 138 NI Act
f) The offence charged with : 138 NI Act
g) The plea of the accused : Pleaded not guilty
(Parmod Kumar)
h) The final order : Convicted
i) The date of such order : 14.09.2012
j) Brief facts of the decision of the case :
1. According to the complainant, he runs a business of papers & board under the name and style of M/s Om Prakash Sanjeev Kumar Jain which is proprietorship concern. The complainant had supplied goods on various occasions to the accused and in lieu of the same, the accused issued a cheque bearing No. 694317 dated 02.03.2002 (Ex.CW1/1) for a sum of Rs. 5,000/ drawn on State Bank of India, Jama Masjid Branch, Delhi in favour of the complainant. The said cheque was presented by the complainant to his banker i.e., Corporation Bank, Chandni Chowk Branch, Delhi on 04.03.2002, however, it was dishonoured on 06.03.2002 upon remarks "account closed" as per the concerned bank memo (Ex.CW1/2). The complainant sent a legal notice dated 16.03.2002 (Ex.CW1/3) by way of registered AD post as well as UPC. The registered AD letters (Ex.CW1/4 collectively) returned unserved, however, the letter sent by UPC (Ex.CW1/5) was duly served upon the accused. Accordingly, the present complaint was filed in this court.
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2. Vide summoning order dated 02.12.2002, both the accused persons were directed to be served. The accused No.1 Pramod Kumar was served and has faced trial whereas the accused No.2 namely Sudhir Kumar was declared PO vide order dated 07.03.2005.
3. On the basis of material on record, notice for commission of offence punishable U/s 138/141 of the Negotiable Instrument Act, 1881 (hereafter called 'the Act') was served upon the accused No.1 in accordance of section 251 Cr.P.C dated 05.08.2005. The accused pleaded not guilty and submitted that the amount under the cheque was already paid to the complainant. The complainant had misused the cheque.
4. The said accused was convicted by Ld. Predecessor of this court on 05.12.2006 and sentenced to pay fine of Rs. 5,000/ which was to be realized from the cash surety amount of Rs. 10,000/ (already deposited by the accused in this case as well as in case bearing CC No. 79/1/02 which is connected case between the same parties).
5. The said order were challenged in Criminal Revision Petition No. 03/2007 and vide order dated 31.07.2008, Ld. Sessions Court was pleased to remand this case to this court for trail and record evidence. The complainant was also directed to redeposit a sum of Rs. 5,000/ already withdrawn by him. It appears that the said fact was not brought to the knowledge of Ld. Predecessor Judges of this court earlier. This fact does not find mention in any of the order sheets of this court after the case was received back by way of remand order of the Sessions Court CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 3 of 10 mentioned herein before. This fact was noted by the court as recorded in its order sheet dated 03.09.2012. The complainant had stated that he was not aware of the condition laid by the Ld. Sessions Court. The said amount was, however, deposited in the court by the complainant on 05.09.2012.
6. In his evidence, the complainant examined himself as CW1 and filed his affidavit (Ex.CW1/A) in support of his case. He was cross examined by Sh. Brijesh Kumar, Ld. Counsel for accused. No other witness was examined by the complainant apart from himself.
7. The statement of accused No.1 was recorded in the capacity of him being partner of M/s Om Prakash Jain Sanjeev Jain U/s 281 Cr.P.C read with section 313 Cr.P.C on 14.05.2009. The incriminating evidence was explained to him. The accused submitted that the cheque in question was given by him in 1996 and the signature was taken below the date of the cheque. He claimed that the date of cheque i.e., '02.03.2002' is not in his hand and he has no concern in alteration of date. He further replied that the dispute between them was already settled in the court of Sh. S.N.Gupta, ADJ, Delhi
8. In his support and after due permission from the court, the accused Pramod Kumar examined himself as his own witness. He filed his affidavit in his defence (Ex.DW1/A). He deposed that in the year 1996, he gave some cheques as security cheques and at that time the complainant obtained extra signature near the date column on the ground that his banker needs the signature near the date column. CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 4 of 10 He had demanded the return of his cheques but the same were not given to him. Subsequently, he left Delhi and returned after four years in the year 2002. The complainant altered the date on the cheque and misused it. He deposed that the complainant had filed another complainant U/s 138 of the Act before Sh. S.N.Gupta, ADJ, Delhi where the reason of return of cheque was "account closed". The present complaint was filed after the closure of complaint aforestated and therefore, if the complainant knew that the account was closed then he should not have received a cheque of the closed account which shows that the cheque was given actually in the year 1996 and misused in the year 2002. He deposed that the amount in bills for the year 199192 is now time barred.
9. No further DW was examined.
10. Both the parties filed their respective written arguments on record. I have perused the same.
11. In the present case, the complainant has remained silent in respect of the bills (Mark A, B & C) and has never connected the same with respect to the liability of the accused in respect of cheque (Ex.CW1/1). In his cross examination dated 16.03.2009, the complainant submits that he issued the bills but the same are filed in CC NO. 75/1 which is pending in this court. The bills, if any, on record of the said CC number have not been proved by the complainant by summoning the judicial record concerned. He admits in his cross examination that he did not issue any bill of the amount of cheque in question. He relied on copy of bills (Mark A, B & C) CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 5 of 10 which are of the year 2002. Thus, the complainant is referring to the debt which accrued in his favour and against the accused in the year 1992 and the same, by all means, became time barred in the year 1995. The accused, in his chief examination, admits that he had issued the cheque in question in the year 1996 and not in 2002. Issuance of the cheque in the year 1996 would not amount to an acknowledgment of a legally recoverable debt, which liability extinguished in the year 1995. It is in the written arguments of the accused that on the date of the presentation of the cheque, no legally recoverable liability existed. I have considered the aforesaid submissions. As per case titled "Joseph Vs Devassia" 2002 DCR 108 and "M/s Vijay Polymers Pvt. Ltd Vs Vinay Aggarwal" 2009 (2) JCC (NI) 143 and "Joseph Sartho Vs Gopinath Nair" 2009 (I) CCC 443 (Kerala) (DB), it would be clear that in the absence of acknowledgment 'within the meaning of section 18 of the Limitation Act 1995', a time barred debt can not be considered to be a legally recoverable liability. At the same time, from the ratio of judgment rendered by the Hon'ble High Court of Karnataka in case titled "H.Narasimha Rao Vs Venkataram R" reported in 2007 CLJ 583, it is held that although in the given case, there may not be acknowledgment for extension of the period of limitation, yet the factum of issuance of cheque and its dishonour would constitute an offence U/s 138 of the Act. In the said case, a debt of Rs. 60,000/ had become time barred on 12.06.1997, still the accused chose to issue two cheques which dishonoured on presentation. The Hon'ble High Court of Karnataka observed that since the complainant had not disputed his signatures on the dishonoured cheque, they constituted an agreement or compromise by the debtor to pay the time barred debt. In the said case, Hon'ble CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 6 of 10 High Court of Karnataka observed, while placing reliance on the observation made by 'Lord Mansfield in Hawkers Vs Saunders" (1782) 98 ER 1091 as under: "Where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. A fortiorio, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no Court of Law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promises to pay a just debt, the recovery of which is barred by the Statute of Limitations; or, if a man, after he comes of age, promises to pay a meritorious debt contracted during his minority, but not for necessaries or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promises to perform a secret trust, or a trust void for want of writing, by the Statute of Frauds.
In such and many other instances, though the promise gives a compulsory remedy, where there was none before either in law or equity; yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration."
12. The Hon'ble High Court of Karnataka further referred to the judgment CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 7 of 10 to the Apex Court in "A.V.Murthy Vs B.S.Nagabasavanna" (2002 AIR - Kant HCR 746 in which the following observation is given below: "......................Under S.118 of the Act, there is a presumption that until the contrary is proved, every negotiable instruments was drawn for consideration. Even under S.139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved that, the holder of a cheque received the cheque of the nature referred to in S.138 of discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under subsec (3) of S.25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract..............."
13. The Hon'ble Court also relied on the observations of the Karnataka High Court in case titled "Ramakrishnan Vs Partha Saradhy" 2003(3) Indian Civil Cases 662 wherein it was held that when a person writes, signs and delivers a cheque to another, it is an acknowledgment of legally enforceable liability and therefore, if the cheque is dishonoured, such a person shall not be entitled to plead that at the time of his writing the cheque, claim had become barred by limitation and CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 8 of 10 thus, he is not liable to be punished U/s 138 of the Act.
14. Hon'ble High Court of Karnataka, therefore, in "H.Narasimha Rao's case (supra)" observed that the complainant therein had disputed his signatures on the dishonoured cheques in question and therefore they constituted an agreement or compromise of the debtor to pay the time barred debt.
15. In the instant case also, the accused does not deny the signatures on cheque (Ex.CW1/1) as made over by him including the signature under neath the date column. Although, he submits that the complainant made alteration of the date of issuance of cheque but fact remains that the accused did not produce any kind of evidence in his support or even in the cross examination of the complainant in order to prove that the complainant had obtained his signatures under the date column of the cheque by playing smartness as alleged. Further, no evidence is produced by the defence regarding the fact that the cheque in question was from a series of cheque from an account which was already closed. The accused should have proved by cogent evidence that the cheque in question was not returned to him and that his signatures underneath the date column were not obtained on 02.03.2002 but on 15.10.1996.
16. The accused, in his cross examination, submits that he did not remember if he had given the reply to the notice dated 16.03.2010. However, he has relied upon the reply notice dated nil i.e., Ex. DW1/A. Thus, there is no denial to the receipt of legal notice. Despite delivery of the legal notice, the accused failed to CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 9 of 10 make the payment of the cheque in question. The accused has failed in displacing the presumption against him as is to be held U/s 139 of the Act.
17. In the result, the accused No.1 is convicted for commission of offence punishable U/s 138 of the Act. Let him be heard on point of sentence.
Announced in the open court (MANISH YADUVANSHI) on 14.09.2012 ACMM01 DELHI
It is certified that this judgment contains 10 (ten) pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI CC No. 84/1/02 Om Prakash Jain Vs Parmod Kumar Page 10 of 10