Delhi District Court
In The Case Titled Goa Plast Pvt. Ltd. vs . Chico Ursula D'Souza 2003 on 15 July, 2013
1
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
Reliance Capital Ltd.
VS
Krishan Pal
CC NO. 658/12
PS:New Friends Colony
U/S: 138 N.I. Act
Date of Institution: 25.06.2010
Name of the Complainant Reliance Capital Limited,
Having Office at: 2nd Floor,
Capital House, 260261,
Tribhuvan complex, Ishwar
Nagar, New Friends Colony,
New Delhi
Name and address of accused Krishan Pal,
Prop. Of : Krishan Pal & Co.,
A13, Subzi Mandi, Najafgarh,
New Delhi43.
Also at: H.No. 176, Surakh Pur
Road, Maruti Wali Gali, New
Gopal Nagar, Najafgarh, New
Delhi.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 15.07.2013
Date of Institution of case: 25.06.2013
Date of hearing final arguments: 22.05.2013
Date of decision of the case: 15.07.2013
2
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgement, I shall decide the complaint case u/s 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant company.
2. The facts in brief necessary for the disposal of the present case are that the complainant is a company incorporated under the provisions of Companies Act, 1956 having its registered office at H Block Dhirubhai Ambani Knowledge City, Koparkhairaine, Navi Mumabi400710 and one of its concern offices at 2nd Floor, Capital House, 260261, Tribhuvan Complex, Ishwar Nagar, New Friends Colony, New Delhi65 and engaged interalia in the business of finance and other related activities. Sh. Rohit Nijhawan is the authorized person of the complainant and is duly authorized to sign, file, verify the present complaint and is also well conversant with the facts and circumstances of the present case. The present complaint has been instituted, signed and verified by Sh. Rohit Nijhawan. Accused persons approached the complainant and requested for grant of personal loan. The complainant duly considered the request and granted personal loan to the accused and the amount towards the same was duly received by him. The accused took the said loan under the agreement no. RLPLDEL000000568 from the complainant and undertook to repay the same in equal monthly installments including the interest thereon. Accused represented that he is the proprietor of Krishan Pal & Co. and he has issued a cheque no. 777942 dated 12.04.2010 of Rs. 52160/ drawn on State Bank of Mysore, Najafgarh, New Delhi43 against the payment of dues accumulated on account of non payment of the monthly installments under the agreement with assurances that the cheques will be honoured upon presentation. The cheque in question 3 when presented for clearance by the complainant was dishonoured with remarks "ACCOUNT CLOSED" vide returning memo dated 24.04.2010. The complainant through its counsel served a legal notice of demand dt. 07.05.2010 through speed post as well as UPC at the address of the accused demanding payment of the dishonoured cheque within 15 days of the receipt of the notice. The said notice sufficiently stamped was sent at the last known correct address of the accused. Despite the service of the legal notice, the accused has not made the payment of the cheque in question to the complainant till date. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 NI Act.
3. After the complaint was filed the AR of the complainant led pre summoning evidence who tendered his affidavit in evidence and after hearing the Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 25.06.2010 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. Dated 01.05.2012 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case the AR of the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before the court. He got exhibited the original cheque bearing no. 777942 for a sum of Rs. 52160/ dt. 12.04.2010 drawn on State Bank of Mysore, Najafgarh, New Delhi110043 as Ex. CW1/2 and the cheque returning memo dt. 24.04.2010 as Ex. CW1/3 ,the legal notice of demand 4 dated 07.05.2010 as Ex. CW1/4 and the postal receipt vide which the aforesaid notice was sent as Ex. CW1/5 and Ex. CW1/6. In his cross examination the AR of the complainant denied the suggestion that the signatures on cuttings at the name of the payee and two signature on amount written in words are not the signatures of the accused. He also denied the suggestion that the cheque were taken in lieu of installments. In his cross examination, AR of the complainant further stated that the cheque in question was given by the accused to the complainant in April, 2010 and the whole of the particulars were dully filled up before the handing over the same to the complainant, however, he does not remember the amount of the cheque in question. He stated that he does not know whether the particulars were filled up in Hindi or English language. He denied the suggestion that the complainant has manipulated the particulars of the cheque in question and have enhanced the amount on its own and have presented the cheque in question. He also denied the suggestion that the cheque of such a huge amount was never issued by the accused. In reply to the court question the AR of the complainant stated that the EMI amount was Rs. 6520/. He denied the suggestion that the cheque in question was issued as blank signed cheque by the accused at the time of taking loan and the same has been misused by the complainant and the accused has no liability towards the complainant qua cheque in question. Thereafter, the Complainant's Evidence was closed.
5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to the accused in which he stated that the cheque in which the accused admitted that he approached the complainant with request of 5 grant of personal loan and loan was granted to him by the complainant vide loan agreement number RLPLDEL000000568. He stated that cheque in question was issued by him as blank signed cheque along with three - four other cheques at the time of taking loan and he had not issued a cheque of such huge amount to the complainant. The signatures on cutting at the name of the payee, the signature on cutting at amount written in words and the signature under cutting at the amount written in figures are not his signatures. He also stated that he had not received any legal demand notice. No defence evidence was lead by the accused. Thereafter the matter was fixed for final arguments.
6. In this case the only defence raised on behalf of the accused is that with respect to the loan in question the complainant was to pay Rs. 6250 of EMI, however the cheque in question was of Rs. 52,160/. Further defence raised on behalf of the accused is that there was interpolation made by the complainant on the cheque and no sign whatsoever was taken by the accused for the complainant for the interpolation made with respect to the amount of the cheque. It is further submitted on behalf of the accused that the cheque does not bear the handwriting of the accused as the amount in figure is filled by black ink by him as such the cheque was not issued for the amount in which it was put for encashment after interpolation made by the complainant as such no liability accrues of accused qua the complainant.
7. On the other hand, it is submitted on behalf of the complainant that loan agreement has been admitted by the accused and the cheque in question is also admitted except for the fact that accused is putting a false notion before the court that interpolation was made on the cheque 6 without his consent. It is further submitted on behalf of the complainant that the cheque in question was presented for encasement in the year 2010 when the instrument could have been sent for encasement despite having cutting on it but same can be countersigned by the drawer and the cheque in question has been signed by the drawer on all the three places where interpolation has been made with his consent and for this reason the cheque was dishonoured for "account closed" nor for alternation or interpolation made by anybody. Ld. Counsel for the complainant has submitted that the cheque in question was in fact given by the accused herein and as such no interpolation has been made by the complainant in it.
8. In order to bring home the conviction of the accused, the complainant has to show not only an unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
9. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Act are as follows:
(i) The accused issued a cheque on an account maintained by him with a bank.
(ii) The said cheque has been issued in discharge of any legal debt or other liability.
(iii) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(iv) When the aforesaid cheque was presented for encasement, the same were returned unpaid/dishonoured.
(v) The payee of the cheque issued a legal notice of demand within 30 7 days from the receipt of information by him from the Bank regarding the return of the cheque.
(vi) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to committed an offence punishable u/s 138 Negotiable Instruments Act.
Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
10. WHETHER THE ACCUSED HAS ISSUED A CHEQUE ON ACCOUNT MAINTAINED BY HIM WITH THE BANK.
The accused has himself admitted to have issued the cheque bearing no. 777942 dated 12.04.2010 drawn on State Bank of Mysore, Najafgarh, New Delhi110043 which is Ex. CW1/2 in his statement u/s 313 Cr.P.C. as well as while answering to the questions posed to him at the time of framing of notice u/s 251 Cr.P.C. However, in his defence evidence the accused has stated that the cheque in question was issued by him as blank signed cheque along with 34 other cheques at the time of taking loan and he had never issued a cheque of such huge amount to the complainant and signature on cuttings at the name of payee, the signature on cutting at amount written in words and the signature under cutting at the amount written in figures are not his signature.
From the facts on record and after due admission of the accused that he issued the cheques to the complainant duly signed by him during the trial, the present fact stands proved. Even this may be the case the person who is voluntarily giving the blank cheque duly signed by him takes the risk of it being used. Therefore, it stands duly proved that the cheque has been issued by 8 the accused.
11. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
There is a presumption in favour of the complainant u/s 118 Indian Evidence Act 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, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for negotiation.
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 or in debt or liability. Further Section 139 NI Act is kind of reverse onus clause which puts burden on the accused to prove its case.
Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated u/s 139 NI Act has to be raised by court in favour of the complainant. This presumption is mandatory presumption and not a general presumption but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by the accused must be probable and capable of being accepted. Merely submitting before the court without putting any evidence that 9 cheques given were lost cheques for which intimation had been given to police would be of no use to the complainant.
In the case titled Goa Plast Pvt. Ltd. Vs. Chico Ursula D'souza 2003 (2).RCR.(CR.)131.SC. Hon'ble Supreme Court held "It is to be presumed that a cheque is issued in discharge of any debt or liability. The presumption can be rebutted by adducing evidence and the burden of proof is on person who wants to rebut the presumption.
In another case titled as Hiten P. Dalal Vs. B. Banerjee.SCC.Criminal.960 Hon'ble Supreme Court has observed "There is a presumption of consideration for issuing the cheque and the burden of proving that the cheque was issued without consideration is upon the accused."
Therefore, with the aforesaid discussion it stands duly proved that the accused has issued cheque bearing no. 777942 for a sum of Rs. 52160/ dt. 12.04.2010 drawn on State Bank of Mysore, Najafgarh, New Delhi110043 as Ex. CW1/2 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
12. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheque in question which is Ex. CW1/2 is dated 12.04.2010 which got dishonoured vide cheque returning memo which are CW1/3 dated 24.04.2010 which shows that the cheque has been presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
13. DISHONOUR OF CHEQUE IN QUESTION In the instant case, the cheque returning memo which is Ex. CW1/3 is lying with the record of the case file. On perusal of the same it is 10 revealed that the cheque returning memo are dated 24.04.2013 and the same were issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'ACCOUNT CLOSED'. Accordingly, it stands duly proved that when the cheque in question which is Ex. CW1/2 was presented for encashment, the same was dishonoured vide cheque returning memo which is Ex. CW1/3 with the remarks 'ACCOUNT CLOSED'.
14. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, the AR of the complainant has specifically stated in his pre summoning evidence by way of affidavit which is Ex. CW1/A that he got issued the legal notice of demand dated 07.05.2010 through post receipt which are Ex. CW1/5 and Ex. CW1/6 through counsel and the same has duly been served upon the accused. Legal notice bears the same address which was furnished by the complainant on the complaint and on which the summons were duly served to the accused.
Further there is a presumption u/s 27 General Clauses Act in favour of the complainant that a properly address document sent by Registered Post is deemed to have been delivered if not returned back.
In this case, cheque in question dated 12.04.2010 got dishonoured vide cheque returning memo Ex. CW1/3 dated 24.04.2010 and the legal notice of demand Ex. CW1/4 has been duly served upon the accused vide registered post receipt which is Ex. CW1/5 and Ex. CW1/6. It shows that the legal notice of demand has been served upon the accused within the statutory period of 30 days from the receipt of information by the complainant regarding the dishonour of the cheque issued by the accused.
So, in view of the presumption raised u/s 27 General Clauses Act the legal notice Ex.CW1/4 stands served to the accused in view of the fact 11 that in rebuttal no evidence was led by the accused. Further in view of judgment of the Hon'ble Supreme Court of India in case titled as "C.C. Alavi Haji Vs Palapetty Muhammed & Anr." Appeal (Crl.) 767 of 2007 wherein it is held that:
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of rceipt 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 withing 15 days of receipt of summons (by receiving a copy of complaint with the 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 along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act."
15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID CHEQUE In the case in hand, the AR of the complainant has deposed in evidence that despite receipt of the legal notice of demand, the accused did not make the payment of the cheque amount in question within 15 days of receipt of legal notice of demand. From the facts on record it is evident that accused has failed to make payment within 15 days of receipt of said legal notice. The cause of action has well arisen in favour of the complainant u/s 138 Negotiable Instruments At when the accused has failed to pay the entire cheque amount within 15 days of the receipt of legal notice of demand.
16. I have heard the final arguments addressed by Ld. Counsels for the 12 parties and have also carefully perused the entire record which include judgments filed by Ld. Counsel for the accused.
17. At the time of framing of notice accused has admitted the fact that he handed over the cheque in question duly signed by him twice near the stamp of Krishan Pal & Company. Thereafter while the AR of the complainant was examined, in his cross examination he denied the suggestion that the signatures on the cutting on the cheque are not of the accused. In his cross examination AR of the complainant stated that accused after filling the cheque handed over the same to the complainant. The AR of the complainant further denied the suggestion that the cheque in question was issued as blank signed cheque by the accused person at the time of taking loan. Thereafter the statement of the accused was recorded and in his statement u/s 313 r/e Section 281 Cr.P.C accused again admitted the fact of loan from the complainant. Accused further admitted that cheque in question was issued by him. Accused denied the ignorance about the fact of reason of dishonour of cheque as "account closed" on the memo Ex. CW1/3. Accused denied the receipt of legal demand notice from the complainant. In response to a question by the court where he wants to say anything else and accused chose to say nothing. Accused did not lead any DE and thereafter DE was closed. In this case accused has only come up with one contention that the cheque in question though was issued by him but was a blank cheque and thereafter interpolation was made by the complainant itself. AR of the complainant in his cross examination stated that EMI amount of the accused was fixed as Rs. 6520/. Perusal of the cheque Ex. CW1/2 reveals that originally the cheque was filled for Rs. 6520/ and thereafter after cutting the figure was inserted Rs. 52160/ which was counter signed by the accused. While framing of notice accused stated that he 13 had signed twice near the stamp of Krishan Pal & Company. Perusal of the cheque reveals that one signature is made above the stamp and another signature is made below the stamp. Usually a person sign below the stamp and not above the stamp in a cheque. If at all, the accused has signed above the stamp this is certify the interpolation which is made in the box for writing amount in figure. It appears that the interpolation was done by the accused himself in view of his statement that he has signed the cheque twice below the figure amount box. Further the handwriting appears to be same on a cursory look. All the signatures on the cheques appears to be of the same person in a same handwriting from a cursory look of the same. In these circumstances the defence taken by the accused that the signatures are not his and he has not authorized the interpolation in the cheque by counter signatures appears to be sham and devoid of any merit and accordingly same contention is dismissed. Further accused did not produce any evidence in support of his innocence despite given ample opportunities for the same. Further accused could not bring out anything favourable from the cross examination of CW1. Further in his statement accused has shown his ignorance that his cheque was returned for the reason "account closed" as he was not aware of closure of his account gives rise to doubt that credence of his claim of innocence except a bald statement of innocent, accused could not produce any evidence in support of his claim of innocence. The amount which was later filled in the cheque, is sterning out multiple of Rs. 6520/ (the installment per month). Accused could not rebut the presumption u/s 139 NI Act by way of any probable and capable defence.
14 Conclusion
18. In view of the aforesaid discussion, this court is of the considered opinion that the complainant has proved its case against the accused beyond shadow of reasonable doubt. All the ingredients of Section 138 of Negotiable Instruments Act stands satisfied. Accordingly, accused stands convicted of the offence u/s 138 Negotiable Instruments Act.
Copy of this judgment be given to the convict free of cost.
Announced in the Open Court (PANKAJ SHARMA) today on 15th day of July, 2013 MM : Dwarka : Delhi