Delhi District Court
Jaibir Sharma vs . Sumesh on 27 November, 2018
IN THE COURT OF MS. RAJAT GOYAL
METROPOLITAN MAGISTRATE (SOUTH) 01,
N I ACT, SAKET COURTS : NEW DELHI
CC NO.612/2016 & CIS NO.471605/2016
JAIBIR SHARMA VS. SUMESH
1. Complaint Case number : 612/2016
(CIS No.471605/2016)
2 Name of the complainant : Jaibir Sharma,
S/o Late Sh. Om Prakash,
R/o 90/77B, 1st Floor,
Malviya Nagar, New Delhi
110017.
3. Name and address of the : Sumesh,
accused M/s Sumesh Milk Products,
Shop at 313, Giri Nagar, Top
Floor, Kalkaji, New Delhi
110019.
Also at:
Village Majri, Tehsil
Bahadurgarh, Distt. Jhajjar,
Haryana.
4. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and stated
that cheques in question were
CC NO.612/2016 & CIS NO.471605/2016
JAIBIR SHARMA VS. SUMESH Page 1 to 12
given as blank signed security
cheques against loan.
6. Final Order : Acquittal
7. Date of Institution : 05.11.2014
8. Date of Reserving the : 05.11.2018
Judgment
9. Date of pronouncement : 27.11.2018
Judgment:
1. Briefly stated, case of the complainant is that accused was known to the complainant. That accused had represented himself to be proprietor of M/s Sumesh Milk Products. That accused allured the complainant into making investments in business of the accused and promised handsome returns on the said investments. That complainant had given a total amount of Rs.39,63,041/ to the accused on different dates for such investments. That out of the said amount, amount of Rs.9,63,041/ has been received back by the complainant. That in discharge of his legal liability to repay the remaining amount, accused issued cheques bearing numbers 195492 CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 2 to 12 dated 10.09.2014 and 195493 dated 10.09.2014 for an amount of Rs.7.5 lacs each, both drawn on his bank account maintained with Punjab National Bank, Kalkaji Branch, New Delhi (hereinafter referred to as the 'cheques in question') in favour of the complainant. That cheques in question were returned unpaid upon presentation on account of "insufficient funds" vide return memos dated 12.09.2014. That legal notice dated 23.09.2014 was duly sent by complainant to the accused in this regard, but to no avail. That accused failed to pay the cheque amount within the statutory period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
2. Upon service of summons, accused entered an appearance in the present matter for the first time on 05.08.2016 and was admitted to bail. Notice under Section 251 Cr.P.C. was served upon accused on 31.03.2017, to which the accused pleaded not guilty and claimed trial. In his statement of defence, accused stated that cheques in question were given as blank signed security cheques against loan of Rs.1 lac taken from the complainant. Accused also stated that the said cheques were not returned by the complainant despite repayment of the loan alongwith interest. Accused CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 3 to 12 also denied having received legal demand notice. Thereafter, accused was allowed to crossexamine the complainant u/s 145 (2) NI Act. However, accused failed to cross examine the complainant, despite opportunities and opportunity of the accused to cross examine the complainant was finally closed vide order dated 05.06.2017 and matter was fixed for recording statement of the accused under Section 313 Cr.P.C. In the said statement recorded on 25.07.2017, accused stated that complainant never invested any money through him and that cheques in question were given as security against loan taken from the complainant. Accused also stated that he had taken loan of around Rs.5 lacs from the complainant at various times and that an amount of around Rs.50 lacs had been repaid by him against the said loans. Matter was thereafter fixed for defence evidence. Defence evidence was closed on 19.02.2018 and the matter was fixed for final arguments.
Evidence
3. In order to support his case, complainant had stepped into the witness box as CW1 and tendered his affidavit Ex.CW1/1 into evidence wherein averments made in the CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 4 to 12 complaint were reiterated. He also relied upon various documents such as Ex.CW1/A (OSR) which is bank account statement of the complainant, Ex.CW1/B & Ex.CW1/C which are the cheques in question, Ex.CW1/D which are cheque return memos dated 12.09.2014, Ex.CW1/E which is legal notice dated 23.09.2014, Ex.CW1/F which are postal receipts and Ex.CW1/G which are returned envelopes. As already mentioned above, complainant was not cross examined by the accused.
4. Accused, on the other hand, failed to lead any defence evidence, despite being given various opportunities and right of the accused to lead defence evidence was closed vide order dated 19.02.2018.
The law applicable
5. Law regarding the ingredients of the offence punishable under Section 138 NI Act is well settled. It was held by the Hon'ble Apex Court in the case of K Bhaskaran v. Sankaran Balan [1999 (7) SCC 510] that "offence under Section 138 of the Act can be completed only with the concatenation of a number of facts namely, (i) drawing of the CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 5 to 12 cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; (v) failure of the drawer to make payment within 15 days of the receipt of the notice".
It was further held in the above mentioned case that "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. The burden was on the accused to rebut the aforesaid presumption".
It was held by the Hon'ble Apex Court in the case of Rangappa v. Sri Mohan [2010 (11) SCC 441] that Section 139 of the Act is a example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It was further held that in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.
CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 6 to 12 Arguments and appreciation of evidence
6. Ld. counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case and, hence, the accused be convicted. On the other hand, it has been argued on behalf of accused that cheques in question were given as security cheques only and, hence, the present complaint must be dismissed. I have heard the arguments and also gone through the record carefully.
7. Since issuance of and signatures on the cheques in question have not been disputed by the accused in the present case, presumptions under Section 118 read with Section 139 of NI Act about the cheques in question having been issued for consideration and in discharge of legal liability arise in favour of the complainant. One of the defence which was taken by the accused in the present case is that statutory legal demand notice was not received by him. However, as per Ex.CW1/F & Ex.CW1/G, legal demand notice Ex.CW1/E was duly sent to the accused at his correct address. Accused has not disputed correctness of address at which legal demand notice was sent. As per provisions of Section 114 of Indian Evidence Act, 1872, read with Section 27 of General CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 7 to 12 Clauses Act, the court may presume that the legal notice duly addressed to the accused and dispatched to him by way of post was actually received by the accused, regard being had to common course of natural events. Onus to prove non receipt of legal notice was upon the accused. However, no evidence has been led by the accused to prove that the said legal notice was not received by him, apart from his bare statement in this regard. I also place reliance upon the case of C.C.Alavi Haji v. Palapetty Muhammed [2007 (6) SCC 555] wherein it was held by the Hon'ble Supreme Court that "it is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 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 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 alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 8 to 12 as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of General Clauses Act and Section 114 of Indian Evidence Act." Hence, in my opinion, legal notice Ex.CW1/E was duly served upon the accused.
8. Main defence taken by accused in the present case is that complainant had not invested any money in his business and that cheques in question were given as security with respect to loans taken by the accused from the complainant. It is further the defence of accused that loans taken by him from the complainant have been duly repaid. Ld. counsel for the complainant has argued that accused has not led any evidence in proof of defence taken by him and, hence, he be convicted. However, it is a settled principle of law that in a complaint u/s 138 NI Act, accused may prove his defence either by leading direct evidence or by showing lacunas in the case of complainant. In the case in hand, it is the averment of complainant that he had invested an amount of Rs.39,63,041/ in business of milk products upon inducement of the accused. Complainant has relied upon his bank account statement Ex.CW1/A in this regard, wherein relevant entires have been highlighted by the complainant. As per the said CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 9 to 12 bank account statement, payment of Rs.18,46,785/ was made by the complainant on 25.05.2012, Rs.8,42,980/ on 26.05.2012, Rs.02,76,776/ on 28.01.2013, Rs.02,06,579/ on 28.01.2013, Rs.03,40,155/ on 29.01.2013, Rs. 94,368/ on 29.01.2013, Rs.1,78,200/ on 30.01.2013 and Rs.1,77,198/ on 30.01.2013. As per the said bank account statement Ex.CW1/A itself, payments of Rs.02,76,776/ on 28.01.2013, Rs.02,06,579/ on 28.01.2013, Rs.03,40,155/ on 29.01.2013, Rs. 94,368/ on 29.01.2013, Rs.1,78,200/ on 30.01.2013 and Rs.1,77,198/ on 30.01.2013 were made by the complainant by way of DDs to one GCMMF Limited. The said fact was further corroborated by the bank witness from Federal Bank Limited, Shivalik Branch, who was summoned as a Court witness in the present case vide order dated 29.05.2018. Complainant has not led any evidence to prove that accused was connected with GCMMF Limited in any capacity. No witness was summoned by the complainant from the said GCMMF Limited to prove that payments made by him to the said company were made on the behalf of or at the instance of the accused. Thus, there is nothing on record to connect the accused with the payments made by the complainant to GCMMF Limited. It is also very pertinent to note here that complainant has relied upon one acknowledgment given by CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 10 to 12 the accused. The said acknowledgment was tendered into evidence by the complainant as Ex.CW1/AA in connected case bearing CIS No. 471608/2016. Copy of the said acknowledgment has been filed in the present case as well. As per the said acknowledgment, accused had admitted that cheques in question were being issued by him with respect to loan taken by him from the complainant. Accused has not disputed execution of the said acknowledgment and has admitted his signatures thereupon. However, the said acknowledgment Ex.CW1/AA nowhere mentions total amount of loan or money given by complainant to the accused. Hence, the said acknowledgment Ex.CW1/AA is of absolutely no help to the complainant. Since complainant has not been able to establish that he had given an amount of Rs.39,63,041/ to the accused for investment purposes, cheques in question cannot be said to have been issued in discharge of legally enforcible liability.
Conclusion
9. In view of the above discussion, I am of the considered opinion that complainant has failed to establish his case beyond reasonable doubt by proving all the ingredients of CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 11 to 12 offence punishable under Section 138 NI Act by leading cogent evidence and accused has rebutted statutory presumptions arising against him. Accused Sumesh is hereby acquitted for offence punishable under Section 138 NI Act. Copy of this judgment be given free of cost to both the sides.
Digitally
signed by
RAJAT
Announced in the Open Court RAJAT GOYAL
GOYAL Date:
on 27.11.2018 2018.11.27
15:45:41
+0530
(RAJAT GOYAL)
Metropolitan Magistrate01 (South), NI Act Saket/New Delhi/27.11.2018 CC NO.612/2016 & CIS NO.471605/2016 JAIBIR SHARMA VS. SUMESH Page 12 to 12