Delhi District Court
Dharmeshwari Kumari vs Sushma Mehndiratta on 28 January, 2011
CC No.408/A/10
Dharmeshwari Kumari Vs Sushma Mehndiratta
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE
DISTRICT-NORTH, TIS HAZARI COURTS, DELHI
DHARMESHWARI KUMARI Date of institution of case : 05.08.2000
VS Date of decision of case : 28.01.2011
SUSHMA MEHNDIRATTA
Unique ID No.02401RO881172003
CC.NO.408/A/10
P.S.-PATEL NAGAR
U/S 138 Negotiable Instrument Act
JUDGMENT
1. Date of the commission of offence : 26.07.2000
2. Name & address of the complainant : Smt. Dharmeshwari Kumari Bahl W/o. sh. Nishi Kant Bahl R/o R-36, West Patel Nagar New Delhi.
3. Name & address of the accused : Smt.Sushma Mehndiratta W/o Late Y.D.Mehndiratta Prop. M/s Dimple Publishing House R/o. R-39, West Patel Nagar New Delhi.
4. Offence complained of : U/s.138 of Negotiable Instruments Act
5. Plea of accused & examination if any : Pleaded not guilty Examination u/s.313 Cr.PC No defence evidence led.
6. Final order : Convicted
7. Date of such order : 23.01.2011 1/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. By way of the present judgment, this court proposes to decide the complaint case under section 138 of the Negotiable instruments Act, 1881 (as amended upto date) filed by the complainant Smt. Dharmeshwari Kumar Bahl against the accused Smt.Sushma Mehndiratta W/o Late Y.D. Mehndiratta.
2. Brief facts necessary for the the disposal of the present case as per the allegation of the complainant are as follows:-
The complainant granted friendly loan of Rs.1,55,000/- (One lac fifty five thousand) in the month of January 1999 to the accused who is neighbour of the complainant. It is further alleged that the accused in discharge of his legal liability issued two cheques of Rs.1,00,000/- and Rs. 55,000/-, however upon request of the accused, the cheque for Rs. 1,00,000/- was not presented for encashment. The cheque bearing no. 738403 dated 20.04.1999 for a sum of Rs.55,000/- drawn on Punjab National Bank, Patel Nagar (West), New Delhi was revalidated on 15.11.99 and again on 15.04.2000. However, on presentation of the same, it was 2/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta dishonored vide cheque returning memo dated 05.07.2000 with remarks " FUNDS INSUFFICIENT" . The complainant thereafter gave legal notice of demand dated 07.07.2000 to the accused which was sent by registered post on 08.07.2000 thereby calling upon the accused to make the payment of the cheque amount. It is alleged that accused has failed to pay any sum in response to the legal notice of demand even after its service. As a result of which the complainant filed the instant complaint for prosecution of the accused u/s 138 Negotiable Instrument Act, 1881.
3. After considering the entire material and documents on record, summons were issued by my Ld. Predecessor against the accused vide order dated 20.11.2000 for the offence u/s.138 of the Negotiable Instruments Act, 1881. On appearance of the accused, a separate notice u/s 251 of the Code of Criminal Procedure dated 29.05.2003 was given to the accused to which the accused pleaded not guilty and claimed trial.
4. In order to prove the case, Smt. Dharmeshwari Kumar Bahl complainant got herself examined as CW1 (in post summoning examination in chief) and reiterated the contents of the complaint on oath 3/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta before the court. She got the original cheque exhibited before the court as Ex.CW1/B and cheque returning memo exhibited as CW1/C, the legal demand notice dated 07.07.2000 exhibited as CW2/A, postal receipt exhibited as CW2/B and AD card exhibited as CW2/C. Smt. Dharmeshwari Kumari, complainant, was cross examined by the learned counsel for the accused. Thereafter the complainant evidence was closed at request on 19.10.2010.
5. After that the statement of accused was recorded u/s.313 of the code of Criminal Procedure, 1973 in which all the incriminating evidence along with exhibited documents were put to the accused Smt.Sushma Mehendiratta in which she admitted issuance of cheque Ex.CW1/B and signature thereon. She admitted factum of knowledge of dishonour of cheque and said it was issued as security for getting loan of Rs.10,000/- from the complainant. She denied the receipt of legal notice of demand from the complainant.
6. Opportunity for leading the defence evidence was given to accused but on 18.11.2010 accused submitted in her statement u/s. 313 of 4/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta the Code of Criminal Procedure, 1973 that she did not want to lead any defence evidence. . Thereafter the case was fixed for final arguments.
7. I have heard Ld. Counsels for both the parties and perused the entire record of the case file as well as the evidence on record. In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of.
8. The complaint case at all relevant point of time being tried as summons trial, deserves a judgment to be pronounced under section 355 of the Code of Criminal Procedure, 1973.
Before proceeding further, it would be appropriate to quote the Hon'ble Supreme Court in Rangappa Vs. S. Mohan arising out of SLP (Crl) No.407/2006 (2010) NSC 373 decided on 07.05.2010.
" Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in section 138 of the Negotiable Instruments Act, 1881 have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by section 139 of the Act."5/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta
9. Before proceeding further let us go through the relevant provisions of law. The main ingredients of Section 138 of the Negotiable Instruments Act, 1881 are as follows :
(a) The accused issued cheque on an account maintained by him with a bank.
(b) the said cheque has been issued in discharge of any legal debt or other liability.
(c) the chequ has been presented to the bank within the period of six months from the date of the cheqe or within the period of its validity.
(d) When the aforesaid cheques were presented for encashment , the same were returned unpaid/dishoured.
(e) the payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) the drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
6/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 of the Negotiable Instruments Act, 1881.
10. Now let us deal with the each ingredient of the Section 138 of the Negotiable Instrument Act, 1881 to see whether the case against the accused has been proved or not.
11. WHETHER THE CHEQUE WAS ISSUED OR NOT:
The accused herself admitted to have signed the cheque in question while answering to the questions u/s 313 of the Code of Criminal Procedure, 1973 but she stated that the same was given for security as complainant assured her to advance loan of Rs.10,000/-. The accused put a suggestion in the cross examination of complainant that the present cheque was issued blank after signing the same as security towards loan of Rs.10,000/- which was however denied by the complainant. Therefore, so far as signing and issuance of the cheque in question by the accused is concerned the same is not disputed by the accused. However as per this suggestion, issuance of blank cheque is another defence raised by the 7/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta accused.
So far as issuance of blank cheque is concerned, in the case titled as Jaipal Singh Rana Vs. Swaraj Oal 149(2008) DLT 682 it was held by Honble Delhi High court that " by putting the amount and the name etc there is no material alternation on the cheque u/s 87 of the NI Act" . In fact there is no alternation by only adding the amount, name and the date. As Section 20 of the Negotiable Instrument Act, 1881 gives authority to holder of instrument to make or complete the instrument as the case may be and the person so signing shall be liable upon such instrument, in the capacity in which he signed the same to any holder in due course for such amount.
Hence, once the signature of cheque is admitted, holder or payee as the case may be will have a prima facie authority to complete the cheque. So, the defence of issuance of blank and even undated but signed cheque is no defence in the eyes of law.
In view of the aforesaid judgment and the evidence on record, it stands proved that the cheque in question was issued by the accused. 8/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta
12. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY :
Perusal of the record reveals that the cheque in question which is exhibited as CW1/B is dated 15.04.2000 which was dishonored vide separate cheque returning memo which is exhibited as CW1/C dated 05.07.2000 and the same is not disputed by the accused clearly showing that the cheque was presented within the period of six months of issuance which is the statutory limitation period for presentation of cheque.
Ld counsel for the accused has disputed the presence of complainant at the house of accused at that time when the present cheque was revalidated on 15.04.2000 by the accused i.e. at 5.30 p.m. and gave a suggestion that the complainant herself wrote the date 15.04.2000 which was however, denied by the complainant. Ld counsel stated that the earlier date 15.11.1999 being written/revalidated by the accused and not the revalidation done on 15.04.2000. So, the present cheque has been presented beyond the validity period of six months and as such the complaint is not maintainable.
As the accused did not lead any evidence either by way of 9/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta summoning writing expert or seeking FSL opinion to prove that the last revalidation was not done by the accused so, this argument is not tenable. Therefore, it stands proved that the cheque was presented within the period of validity i.e. within six months from the last validation done by the accused on 15.04.2000.
13. DISHONOUR OF CHEQUE IN QUESTION :
In the instant case, Smt. Dharmeshwari Kumari who appeared as complainant's witness got the cheque returning memo exhibited as CW1/C. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memos have been challenged by the accused. Moreover accused admitted the knowledge of dishonor of cheque in her statement recorded u/s.313 of the Code of Criminal Procedure, 1973.
Hence, cheque returning memo and dishonor of cheque for insufficient funds has to be treated as proved u/s.146 of the Negotiable Instruments Act, 1881. Moreover accused has done nothing to rebut the mandatory presumption of law arising in favour of complainant in this respect.10/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta Therefore, considering the entire evidence on record, it stands duly proved that the cheque in question was dishonored vide cheque returning memos dated 05.07.2000 which are exhibited as CW1/C with the reason " FUNDS INSUFFICIENT" . .
Complainant has primarily relied upon the mandatory presumption of law in respect legal liability. The issuance of cheque being admitted, signatures admitted & dishonor being proved presumption u/s. 118 & 139 of the Negotiable Instruments Act, 1881 has to arise in favour of the complainant. It must be presumed that the liability as alleged was existing at the time when cheque was given.
14. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCSUED In the instant case, complainant Smt. Dharmeshwari Kumari Bahl who appeared as complainant's witness specifically stated in her evidence that the complainant issued the legal notice of demand dated 07.07.2000 which is Ex.CW2/A and it was sent to the accused on 08.07.200 vide registered post. Postal receipt is Ex.CW2/B and AD card is Ex.CW2/C. Accused has merely denied the receipt of legal notice of demand in his statement u/s 313 of the Code of Criminal Procedure, 1973. 11/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta I have perused the legal notice of demand. It bears the correct address of the accused and the registered post receipt issued by the postal authorities in ordinary course is also lying on record. Moreover, AD card Ex.CW2/C is also lying on record acknowledging the proof of delivery of notice. Moreover even a suggestion has not been given by the accused in cross examination of the complainant as to factum of address as mentioned on the notice as well as AD card not being the address of the accused.
Accused gave a suggestion during the cross examination of the complainant that the same postman distributes dak at the residences of both the complainant and the complainant herself received the legal notice of demand in connivance with the postman. The complainant denied this suggestion. However, no other evidence has been led by the accused to prove such connivance and receipt of notice by the complainant except the aforesaid bald suggestion which is not sufficient to raise a preponderance of probability. Accused could have sought FSL report or examined handwriting expert but no such thing happened. 12/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta " There is presumption u/s 27 of General clauses Act in favour of the complainant that properly addressed documents sent by the registered post is deemed to have been delivered if not returned back."
Moreover, in Basant Singh Vs. Roman Catholic Mission 2002 (4) RCR (Civil) 572 Supreme Court which deals with section 27 General Clauses Act. Hon'ble Supreme Court held:
" when the summons purportedly addressed are sent by registered post with acknowledgment due, notwithstanding, loss of AD card/not received back for any reason, a presumption of due receipt is attached."
In CC Alavi Hazi Vs. Palapetty Mohd. and another 2007 (2) Apex Court Judgment (S.C.) Hon'ble Supreme Court held that once the payee sent the notice to the drawer at the correct address, his duty is over and now it depends on the sender what he does.
Therefore, it stands proved that the legal notice of demand was served upon the accused.
13/23
CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta
15. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
Before deciding this issue, let us to go through the relevant provision of law.
Section 46 of the Negotiable Instruments Act, 1881 speaks of the delivery. It reads as follows:
" The making, acceptance or endorsement of a promissory notice, bill of exchange or cheque is completed by delivery actual or constructive."
Section 118(b) of the Negotiable Instruments Act, 1881 provides that until the contrary is proved, the following presumption shall be made.
(b) as to date that every Negotiable Instrument bearing a date was made or drawn on such date.
Moreover, there is presumption in favor of the complainant u/s 118 (a) of the Negotiable Instruments Act, 1881 that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted 14/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the section 138 for the discharge in whole or in part of his debt or liability.
So, in view of Sections 118 & 139 of the Negotiable Instruments Act, 1881 and recent judgment of Hon'ble Supreme Court in Rangappa Vs. S. Mohan (supra) decided on 07.05.10, there is no burden on complainant to establish legal liability. It is settled law that offence of dishonor of cheque is a technical offence initiating a reverse onus clause. It is not the complainant who has to establish liability but the accused who has to rebut the same.
Now it will have to be examined whether the accused has rebutted the presumption as contemplated by section 118 9b) and section 139 of the Negotiable Instruments Act, 1881.
In the case in hand, Smt. Dharmeshwari Kumari Bahl who has appeared as complainant's witness has specifically stated in her evidence that the accused has taken loan from the complainant and the cheque in 15/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta question was issued by the accused in discharge of her legal liability towards the repayment of the loan amount. The accused, however, stated in her statement recorded u/s 313 of the code of Criminal Procedure, 1973 and in suggestion given to the complainant during her cross examination that she gave the cheque in question to the complainant after signing the same as security for a loan of Rs. 10,000/-.
The accused has never taken the plea in this case that he is not liable to pay the sum of Rs. 1,55,000/- including cheque amount. Even a specific suggestion that the accused did not owe a sum of Rs. 55,000/-, the cheque amount or never took a loan from complainant was not given on behalf of the accused. Further, accused has failed to lead any evidence in support of the stands taken by him.
Ld counsel for the accused has disputed the presence of complainant at the house of accused at that time when the present cheque was revalidated on 15.04.2000 by the accused i.e. at 5.30 p.m. and gave a suggestion that the complainant herself wrote the date 15.04.2000 which was however, denied by the complainant. Ld counsel stated that the earlier date 15.11.1999 being written/revalidated by the accused and not the revalidation done on 15.04.2000. So, the present cheque has been 16/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta presented beyond the validity period of six months and as such the complaint is not maintainable. This defence is not tenable as the same is not supported with cogent evidence and do not improbablize the story of complainant. The complainant has been consistent that on 15.04.2000 she was at the house of the accused at 5.30 p.m. and in the month of April 2000 she was performing her duty from 7.30 a.m. to 3.00 p.m. Ld counsel for the accused states that the complainant could not produce any document to substantiate that she was in hospital till 3 pm and not till 5.30 p.m. as suggested by the accused which was denied by the complainant As the complainant could not produce the document of her presence in hospital the prosecution must fail as it creates doubt about the factum of revalidation of cheque which is crucial from point of limitation.
However, though the complainant did not produce documents regarding her duty hour, adverse inference may be drawn but as the factum of issuance of cheque is admitted, it is the duty of accused to summon the witness to establish the falsity of statement of the complainant which was not led for the reasons best known to the accused. Moreover, issuance of cheque is admitted and repeated revalidation of cheque despite not receiving of loan amount goes to prove that the cheque was 17/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta issued towards discharge of loan amount.
Moreover the cheque initially dated 20.04.99 was revalidated by accused on 15.11.99 and again revalidated on 15.04.2000. Ld. Counsel for the accused has contended that the date 15.04.2000 has been written by the complainant herself and not by the accused. It means the earlier two dates, date of actual issuance and date of first revalidation have been written by the accused, meaning thereby that earlier two dates on cheques were written/revalidated by the accused. This further demolishes the defence of issuance of signed blank undated cheque.
Accused took the plea of issuance of cheque as security for a loan of Rs.10,000/- which was not advanced at all. Accused revalidated the cheque on 15.11.99 despite the fact that the complainant did not advance the loan as assured even after issuance of the present cheque as security on 20.04.1999. So, the loan of Rs 10,000/- was not advanced immediately on 20.04.99 after issuance of cheque and further the same was not advanced till 15.11.99.Accused kept mum and did not agitate the non advancement of loan even after the security cheque was issued on 20.04.99 and kept on waiting till 15.11.99. Even on 15.11.99, instead of asking for return of the cheque, she revalidated the same. In ordinary 18/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta course, a person would ask for the return of the cheque and take action against the complainant but no such thing happened in the present case. Rather the accused kept on re-validating the same which clearly means that the cheque was not a security cheque but was issued towards discharge of loan liability which the accused was not able to pay back on the dates already mentioned on the cheque. This conduct of the accused establishes the story of complainant that the accused kept on delaying the payment and complainant being friendly with accused waited till 15.04.2000. So, it can be held that the cheque was not a security cheque.
The above stated observation is fortified by the view of Hon'ble Delhi High Court as expressed in para 7 & 8 of the case titled V.S. Yadav Vs. Reena, (Crl.A.No.1136 of 2010, decided on 21.09.2010).
Para 7 : .........
Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr.P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to 19/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/ prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case. Para 8 : In this case no evidence, whatsoever, was produced by the accused and the Trial Court travelled extra steps, not permitted by law, to presume that the presumption has stood rebutted. In this case accused has failed to lead any evidence in his defence to substantiate the pleas taken by him. Mere bald suggestions and pleas that the last revalidation was not done by the accused and the cheque was issued as security cannot be accepted especially in the light of 20/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta presumption u/s.118 (a), (b) and section 139 of of the Negotiable Instruments Act, 1881 and the judgment cited above.
Considering the entire evidence on record, it stands duly proved that the cheque in question which is exh.CW1/B was issued and drawn in discharge of legal liability of the accused and for consideration.
16. WHETHER THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF THE CHEQUE:
It is in evidence that the legal notice of demand was sent to the accused by registered post at correct address of the accused which is not disputed. So the same stands proved as discussed above in point 14. The accused in her statement u/s.313 of the Code of Criminal Procedure, 1973 said that she did not receive the notice but also admits to have the knowledge of dishonour of present cheque duly issued by her as security.
No evidence has been led to disprove the service of notice. Knowledge of dishonour of cheque is admitted. The raising of the defence that the cheque was handed over as a security for a loan of Rs.10,000/- as assured by the complainant which the complainant did not advance and as 21/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta no liability arose in respect of this cheque goes to prove that the accused failed to make the payment of the cheque within 15 days of the receipt of the legal notice.
Considering the entire evidence on record, it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand.
17. Ld counsel for the accused has raised the defence of non availability of funds with the complainant but complainant was consistent in her cross examination and categorically denied the suggestion of non availability of funds at home as well as stated that her salary in the year 1998 was around Rs.20,000/- per month. No evidence has been led by the accused to dispute the financial capacity of the complainant. Moreover, from the income as stated by the complainant, it is not improbable to pay an amount of Rs.55,000/- or more as loan. So this argument does not having any force to improbablize the paying capacity of the complainant.
18. In view of the aforesaid discussion as accused has failed to rebut the mandatory presumption of law arising in favour of the 22/23 CC No.408/A/10 Dharmeshwari Kumari Vs Sushma Mehndiratta complainant, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act, 1881 have been duly proved on record. Accordingly accused Smt. Sushma Mehndiratta W/o Late Y.D.Mehndiratta stands convicted of the offence u/s 138 Negotiable Instrument Act, 1881.
19. Let the convict be heard on the point of sentence.
20. Let the copy of this judgment be supplied to the accused.
Announced in the open court
Today i.e. 28.01.2011 VIPLAV DABAS
MM/North/Delhi
28.01.2011
23/23