Delhi District Court
Case No. 10960/16 Amit Kumar vs . Sunder Lal Page No. 1 /12 on 27 November, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE4
KKD, SHD, DELHI
Presided by : Ms. Deepti Devesh
Complaint No. 10960/16
PS: Welcome
Sh. Amit Kumar
S/o. Sh. Rakesh Kumar
R/o. H.No. 1360, Janta Flats,
GTB Enclave, Delhi110092 ........Complainant
VERSUS
Sh. Sunder Lal
S/o. Sh. Kanhiya Lal
R/o. 1199, Top Floor, Janta Flats,
GTB Enclave, Delhi110093.
Also at:
CPA50, CPA Block,
New Seelampur, Delhi110053 ........Accused
Complaint under section 138 of the Negotiable
Instruments Act
Offence complained of : U/s 138 NI Act
Date of commission of offence : 27.12.2014
Plea of Accused : Not guilty
Final Arguments heard & Concluded on : 28.09.2018
Date of decision of the case : 27.11.2018
Final Order : Conviction
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1 Vide this Judgment I shall dispose off this complaint U/s 138 NI Act by complainant Sh. Amit Kumar against the accused Sunder Lal. The complainant's Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 1 /12 story in brief is that the accused approached the complainant in January, 2014 for a friendly loan of Rs.3,00,000/ for a period of 11 months, on which complainant gave a loan of Rs.2,65,000/ on 13.01.2014 to daughter of accused and she had handed over three blank signed cheques as security of the accused. Complainant has further alleged that on 31.07.2014 accused again asked for friendly loan of Rs.2,00,000/ and upon his request, loan of Rs.1,05,000/ on 05.08.2014 and Rs.50,000/ on 06.08.2014 was given to accused, for which agreement dated 05.08.2014 was also executed between the parties. In order to repay the loan, the accused gave post dated cheques bearing no. 463405 dated 23.08.2014 of Rs.1,05,000/, no. 463408 dated 15.11.2014 of Rs.30,000/ and No. 463409 dated 20.11.2014 of Rs.20,000/, all drawn on SBI, Seelampur in favor of the complainant and had assured the complainant that the same shall be honored on their presentation. The said cheques were presented by complainant which were returned vide return memos dated 15.11.2014 and 28.11.2014 with endorsement of "Funds Insufficient". Thereafter the complainant issued legal notice dated 08.12.2014. The complainant has also stated that despite service of the legal notice the accused did not make any payment in discharge of his liability.
2 After filing of the complaint and closing of presummoning evidence, vide order dated 15.09.2015, summons were issued to the accused for the offence U/s 138 NI Act. The accused was admitted to bail on 30.01.2016. Thereafter notice U/s 251 Cr. PC was framed upon the accused on the same date to which he did not plead guilty and claimed trial. Thereafter the matter was fixed for CE.
3 In order to prove its case, the complainant examined himself as CW1 who reiterated the contents of the complaint on Oath and filed evidence by way of affidavit. CW1 exhibited original cheques bearing no. 463405, 463408 & 463409 as Ex. CW1/A, Ex. CW1/B and Ex. CW1/C respectively, return memo dated 23.08.2014 as Ex. CW1/D, return memo dated 28.11.2014 as Ex. CW1/G, legal Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 2 /12 notice dated 08.12.2014 as Ex. CW1/H and post receipts as Ex. CW1/I (colly). Thereafter, despite opportunity, accused failed to crossexamine complainant and did not file any application u/s. 145(2) N.I. Act. Thus, matter was proceeded to defence evidence.
4 Accused examined himself as DW1 and deposed that the cheques in question were given in blank signed condition for security against loan of Rs.80,000/ given by complainant on 20.08.2013. He deposed that complainant obtained his signatures on several blank papers at that time. He further deposed that he has already made payment of Rs.50,000/ and that the complainant has misused the cheques in question against him. Thereafter, he was crossexamined and discharged on 30.06.2018 and DE was closed on the same day.
5 Final arguments were addressed and heard on behalf of both the parties. Written arguments were filed on behalf of accused. It has been argued on behalf of the complainant that the accused has failed to disclose any defence. Therefore all ingredients of U/s 138 NI Act stands fulfilled and the accused is liable to be convicted. The submissions made in defence evidence have been reiterated in the written arguments filed on behalf of accused.
6 Arguments advanced by both the parties have been heard at length. I have also perused the judicial record.
7 For offence U/s 138 NI Act the necessary ingredients to be proved are:
a) That the accused had a legally enforceable liability / debt towards the complainant.
b) That the accused issued a cheque in discharge of the
said legal liability / debt.
c) That the accused was maintaining a bank account for
Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 3 /12
the cheque issued by him.
d) That the cheque was presented by the complainant
within its validity period.
e) That the cheque was dishonored on his presentation.
f) That the complainant issued legal demand notice within
30 days from the date of dishonor of the cheque.
g) That the accused failed to pay within 15 days of receipt
of legal demand notice.
If the above ingredients are proved then an offence punishable U/s 138 NI Act is committed.
8 In the present case, the accused has admitted his signatures on the cheques in question in notice framed upon him. He has also admitted handing over the cheques in question to complainant. Hence, the disputed question to be decided is whether the cheques in question were issued to the complainant in discharge of legally enforceable liability / debt to the complainant.
9 It is true that for offence U/s 138 NI Act, the accused is not expected to prove his defense beyond reasonable doubt in order to rebut the statutory presumption. Same has been held by Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513. It is also well settled law that in order to rebut the statutory presumption in favour of the complainant, the accused need not examine himself in evidence or adduce any other defence evidence also. The accused can rebut the statutory presumption on the material already available on record. The same has been held by the Hon'ble Supreme Court in Krishna Janardan Bhat v. Dattatraya G. Hegde 2008 Cri.L.J 1172 (SC). Now it will have to be examined whether the accused has been able to rebut the statutory presumption U/s 118 & 139 of NI Act.
Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 4 /12 10 The accused has not discharged the onus to rebut the statutory presumption arising in favour of the complainant as the accused has not cross examined the complainant at all. Accused failed to file appropriate application u/s. 145 N.I. Act at the appropriate stage during trial and later on, accused has also not challenged order dated 22.04.2016, thereby the said order has attained finality. Although accused had examined himself in his defence evidence but the said evidence comprises merely of surmises and conjectures as no concrete documentary evidence has been proved by accused. There is no witness or any document to prove the alleged transaction of loan of Rs.80,000/ on 20.08.2013. Although the accused has stated that the original agreement is with complainant but accused did not seek summoning of this document u/s. 91 Cr.P.C. Furthermore, accused never summoned or produced the witnesses to the alleged agreement dated 20.08.2013 in order to prove even the photocopy of the said agreement. Merely making bald statements about an agreement in defence evidence does not become evidence per se, without appropriate steps being taken to prove the said agreement in accordance with the law of evidence. Thus, the story of accused of loan agreement of Rs.80,000/ does not stand proved.
11 Accused has also stated in his evidence that the cheques in question had been given to the complainant at the time of taking loan of only Rs.80,000/, which is not sufficient proof in absence of any other evidence to corroborate the same. Further, since the statutory presumption is in favour of the complainant, the complainant need not prove anything else apart from the fact that the accused issued the cheques bearing his signatures, that the same were dishonored on presentation, that legal notice was sent to the accused demanding payment of cheques amount and failure of accused to pay the cheques amount within 15 days after receipt of legal notice. In the instant case, all of the above have been proved by the complainant. Furthermore, issuance of blank signed cheque is no defence. The law does not require that for offence u/s 138 NI Act, the entire cheque has to Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 5 /12 be in handwriting of the accused. Admission of signatures is sufficient to prove that the cheque in question must have been issued in discharge of some legal liability / debt. In Jaipal Singh Rana v. Swaraj Pal 149 (2008) DLT 682, the Hon'ble Delhi High Court has held that there is no alteration in a cheque if the amount and the date are filled by somebody else apart from the signatory of the cheque. It was further held that there is no law that requires the filling up of entire cheque by drawer himself. Further, in Ravi Chopra v. State & Anr 2008 (2) LRC 118 (Del), it has been held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date. Further in Vijender Singh v. Eicher Motors Ltd & Anr decided by Hon'ble Delhi High Court on 05.05.2011, it was laid down that any person who issues blank signed cheque should understand the consequences of doing so. Therefore, in view of the above case laws, it is no defence to offence U/s 138 NI Act that the cheques in question were issued in blank signed condition.
12 Further, due to no crossexamination of complainant, the accused has not been able to demolish the complainant's story. In fact, atleast the factum of loan transaction has been admitted by accused, only disputing the amount of loan. There is nothing on record which discredits the complainant. Thus, due to this vital admission of accused of loan transaction, the case of the complainant becomes more credible.
13 The accused has failed to rebut the statutory presumption in favour of the complainant as there is actually no defence proved. Accused has not proved the alleged agreement to show that the loan transaction was of Rs.80,000/ only. It does not seem to be credible that any prudent person will handover eight blank signed cheques as deposed by him in his affidavit, along with blank signed papers to any person for a single loan transaction and that too, of not a very high amount of Rs.80,000/. Further, accused has not proved return of Rs.50,000/ to Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 6 /12 complainant by showing any banking transaction or any receipt. No date has been given by accused in his evidence as to return of Rs.50,000/. Further, accused has not led any evidence to show that he demanded return of his blank signed cheuqes along with blank signed papers even after return of Rs.50,000/. No written notice of demand has been produced on behalf of the accused. Further the accused has also not issued any stop payment instructions in respect of the cheques in question which any prudent person would have done if the alleged defence was true.
14 In the instant case, there is no material available on record that can come to the rescue of accused. Furthermore, he has admitted his signatures on the cheques in question. Admission of signatures is sufficient to prove that the cheques in question must have been issued in discharge of some legal liability / debt. Hence, it appears hard to believe that the cheques in question were not meant for payment.
15 The statutory presumption in NI Act are mandatory in nature and the same can not be rebutted by mere explanations of the accused. It is to be shown by the accused that the explanations given is not only reasonable, but also a true one. In order to do so, the accused is required to produce such cogent evidence which inspires confidence of the Court to believe of the case of the accused rather then believing the case of the complainant, who was admittedly in possession of the dishonored cheque, admittedly signed by the accused. (Attar Singh Wadhwa v. NCT of Delhi decided by Hon'ble High Court of Delhi on 23.12.2009).
16 The Hon'ble High Court of Delhi has held in V.S. Yadav v. Reena 172 (2010) DLT 561 that the offence U/s 138 NI Act is a technical offence and the complainant is required only to prove that the cheque issued by the accused was dishonored, that the cheque was issued in discharge of legal liability / debt, that legal notice was sent by the complainant within 30 days of dishonor and that Case No. 10960/16 Amit Kumar vs. Sunder Lal page no. 7 /12 accused failed to pay the cheque amount within 15 days of receipt of legal notice. In view of the above discussion the complainant has discharged the burden upon him to prove the above said ingredients beyond reasonable doubt. Accordingly accused Sunder Lal S/o. Sh. Kanhiya Lal R/o R/o. 1199, Top Floor, Janta Flats, GTB Enclave, Delhi110093. Also at: CPA50, CPA Block, New Seelampur, Delhi 110053 stands convicted of the offence under section 138 NI Act.
17 Let a copy of the Judgment be supplied to the accused free of cost.
(Typed upon dictation directly
on court computer and
announced in the open
Court today dt. 27.11.2018) (Deepti Devesh)
Metropolitan Magistrate04 (SHD)
Karkardooma Court, Delhi
Digitally signed
by DEEPTI
DEVESH
Location:
DEEPTI Shahdara
District,
DEVESH Karkardooma
Courts, Delhi
Date:
2018.11.27
17:17:32 +0530
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