Delhi District Court
Complainant vs . on 10 April, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
CC No. : 686/1/10
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0293242010
Sh. Ram Singh
S/o Sh. Joginder Singh R/o 25/412, Trilok Puri, Delhi.
.............. Complainant
Vs.
Sh. Jamaluddin
S/o Sh. Shyamuddin
R/o 35/272, Trilok Puri, Delhi.
............. Accused
Date of Institution : 19.10.2010
Plea of accused : Pleaded not guilty
Date of reserving judgment : 22.03.2012
Date of pronouncement : 10.04.2012 (as accused did not appear on 30.03.12)
Final Order : Convicted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant had advanced loan of Rs.65,000/ to the accused and for the repayment of same, accused issued a cheque in discharge of his liability, bearing No. 605665 drawn on SCB Bank, Preet Vihar, Delhi dated 23.04.2010 in a sum of Rs.65,000/. The said cheque upon presentation was dishonoured for reason 'Insufficient Funds' and despite CC No. 686/1/10 Page No.: 1 / 14 service of Legal Notice with respect to dishonour of said cheque upon the accused no payment was made by accused during the statutory period because of which the present complaint was filed on 19.10.2010.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 29.10.2010.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. Notice was framed against the accused u/s 138 N.I. Act on 07.07.2011. On the same day accused admitted the cheque and his signature upon the same but took the defence that the said cheque in blank was given by him to complainant after his signature as security for business purpose.
4. Complainant in post summoning evidence relied upon his affidavit tendered in presummoning evidence as Ex. CW1/1 and examined no other witness. The accused did not lead any defence evidence.
5. Before proceeding further I would like to mention certain facts which are not disputed and admitted by the accused. The signature upon the cheque is not disputed by the accused nor it is disputed that the cheque pertains to the account of the accused and that the same was handed over by the accused to the complainant, though, he alleges that the cheque was issued as security cheque for business purpose.
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6. The questions before the court for the disposal of the complaint are :
(i) Whether the cheque in question was given by the accused to the complainant in discharge of legally enforceable debt? Disputed.
(ii)Whether the cheque in question was dishonoured on presentation? Not Disputed.
(iii)Whether the reason for dishonor of cheque was insufficiency of funds? Not Disputed.
(iv)Whether the cheque was presented within the period of 6 months from the date when it was issued? Not Disputed.
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank? Disputed.
(vi)Whether the accused failed to make payment of cheque amount within 15 days of receipt of said notice? Not Disputed.
7. In support of the case the Complainant had tendered his evidence in postsummoning evidence as CW1/1. In the affidavit the complainant reiterated/ reproduced all the facts which were mentioned in the Complaint itself and he exhibited the cheque as Ex. CW1/A, the return memo as Ex. CW1/B, the legal notice dated 23.09.10 as Ex. CW1/C, the Regd. Postal receipt & UPC vide which the same were sent to the accused dated 23.09.10 are Ex. CW1/D an CW1/E respectively and the receipt of courier as Ex. CW1/F and its computer generated deliver report as Ex. CW1/H. CC No. 686/1/10 Page No.: 3 / 14
8. On the basis of the said testimony of CW1, complainant sought conviction on the ground that the cheque in question which was dishonoured was given in lieu of repayment of loan which was due towards the accused.
9. On the other hand, Ld. Defence Counsel sought acquittal on the ground that accused has never taken any loan from the complainant and that the cheque in question was issued in blank duly signed by accused to complainant for security purpose.
10. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIOANS :
The complainant in order to prove the allegations, himself appeared in the witness box as CW1 and tendered his affidavit in which he reiterated the allegations made by him in the complaint. The documents produced by the complainant and exhibited are :
(a) Dishonored cheque bearing No. 605665 - Ex. CW1/A.
(b) Returning Memo qua the said cheque - Ex. CW1/B.
(c) Legal Notice dated 23.09.10 - Ex. CW1/C.
(d) Receipt of Registered Post - Ex. CW1/D.
(e) UPC - Ex. CW1/E.
(f) DTDC courier receipt - Ex. CW1/F.
(g) Computer generated delivery report - Ex. CW1/H.
11. PRESUMPTION : The complainant produced the original cheque, return memo, legal CC No. 686/1/10 Page No.: 4 / 14 notice and postal receipts. He also appeared as witness to support his allegations with his oral testimony on oath.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheque are dishonoured by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonoured by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
As regards the extent of presumption that is whether the presumption is with respect to debt/ liability or with respect to legally enforceable debt / liability, this issue now stands settled in the light of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 that "the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable CC No. 686/1/10 Page No.: 5 / 14 debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. ...............this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words : "The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheque for the amounts for which the cheque are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It is further held that : CC No. 686/1/10 Page No.: 6 / 14 "The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheque in question was issued in discharge of a legally enforceable debt or liability.
12. ADMITTED FACTS : The facts admitted by the accused are stated in para 5 of this judgment.
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13. DEFENCE OF THE ACCUSED : The main dispute is whether the cheque was issued in discharge of a legally enforceable debt (repayment of loan) or whether it was issued as a security cheque for business purpose ?
The complainant could have proved his defence either through cross examination of complainant or through defence evidence produced by accused or through both.
In the present case, the accused sought to prove his defence by crossexamining CW1/ complainant.
Complainant/ CW1 was crossexamined at length, by Ld. Defence Counsel, and some contradictions came forward, but the contradictions are not material and not sufficient to rebut the presumption u/s 139 N.I. Act. The complainant tried to put forth the defence that the cheque was given as security cheque for business purpose, but no question was put to complainant, as to why the said cheque was given as security and as to what was the reason for issuance of security cheque. The accused failed to put any question to complainant to show that they were involved in business transaction and that during the course of such transaction the accused was required to give security cheque to the complainant.
The accused tried to bring forth, through crossexamination, that Rs.65,000/ was never paid to him by the complainant as loan, but failed in his effort, as loan cannot only be given by cash payment, it can also be given by permitting the borrower to retain any money due upon the borrower towards the lender.
In the present case, the only fact that came forth during cross examination of complainant is that the sum of Rs.65,000/ was not paid in cash by CC No. 686/1/10 Page No.: 8 / 14 complainant to accused, rather as complainant and his daughter, were running committee with the accused, hence, complainant had allowed the accused to retain Rs.65,000/ out of the said committee on the assurance of accused that he would repay the same before the marriage of daughter of complainant.
Thus, accused failed to bring forth any evidence to prove that the cheque was issued by him in blank to the complainant as security for some purpose and thereby failed to rebut the presumption u/s 139 N.I. Act.
The accused has also tried to take the defence that legal notice was never received by him. However, the accused failed to bring forth any evidence in this regard and a mere suggestion in the cross examination of the complainant to this effect is of no consequence and definitely not sufficient to rebut the presumption of service upon the accused under section 27 of General Clauses Act. Rather, besides this presumption, in favour of the complainant, there is one another document on record which is of positive proof of delivery of legal notice upon the accused and the same is Computer Generated Delivery Report Ex. CW 1/H of the courier consignment booked vide Ex. CW1/F. Thus, this defence of the accused that he never received legal notice, also do not stand proved.
As far as dishonour of cheque and subsequent payment by the accused after receiving legal notice is concerned, it is not the defence of the accused nor there is any evidence to show that any such payment was made by the accused to the complainant.
14. Accordingly, the court is satisfied that all the ingredients to make out an offence u/s 138 N.I. Act stands proved against accused Jamaluddin and he is accordingly convicted for offence u/s 138 N.I. Act. CC No. 686/1/10 Page No.: 9 / 14
Be heard separately on point of sentence on 10.04.2012. ANNOUNCED ON 10.04.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 10.04.2012 Certified that this judgment contains 14 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 10.04.2012 CC No. 686/1/10 Page No.: 10 / 14 IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI.
CC No. : 686/1/10 PS : Preet Vihar Offence complained of : 138 N.I. Act Unique Case ID No. : 02402R0293242010 Sh. Ram Singh
S/o Sh. Joginder Singh R/o 25/412, Trilok Puri, Delhi.
.............. Complainant Vs. Sh. Jamaluddin S/o Sh. Shyamuddin R/o 35/272, Trilok Puri, Delhi.
............. Accused
Date of Conviction : 10.04.2012
ORDER ON SENTENCE
Accused Jamaluddin was convicted for offence under section 138 of the Negotiable Instruments Act on 10.04.2012.
Arguments on sentence were heard at length on behalf of both the parties.
Punishment prescribed by Law: As per section 138 of the Negotiable Instruments Act, the punishment prescribed is imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or both.
The cheque amount in the present case is Rs.65,000/ but as the CC No. 686/1/10 Page No.: 11 / 14 power of this court to impose fine is regulated by section 29 of the Code of Criminal Procedure, therefore, the maximum fine that this court can impose upon the accused is Rs.10,000/ only.
This view has been consistently taken by Honourable Supreme Court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510 and Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369.
However, as far as compensation is concerned, in the light of section 357 (3) and judgment titled Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369, there is no limitation on the powers of this court to award compensation to the complainant.
Arguments : The complainant has submitted that though the cheque was payable in 2010 and two years have passed since then, therefore, the complainant be compensated with atleast double the cheque amount and the Ld. Counsel for complainant has also strongly prayed for imprisonment of the accused in the light of the Objects and Reasons of the Amendment Act 55 of 2002 of the Negotiable Instruments Act, 1881.
Ld. Counsel for the accused Sh. Ravi Kaushal, LAC, on the other hand, submitted that the accused had issued the cheque as security cheque and that lenient view may kindly be taken.
Considerations: At this stage of order on sentence, the court is well aware of the fact that protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing an appropriate sentence and that it is the duty of this court as that of any other court, to award proper sentence having CC No. 686/1/10 Page No.: 12 / 14 regard to the nature of offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment is a goal respected in principle.
Thus, the court at this stage is required to give consideration to the facts and circumstance of this case for deciding the just and appropriate sentence to be awarded for offence under section 138 of N.I. Act, and also considered the aggravating and mitigating facts and circumstances in which a crime has been committed as the same are to be delicately balanced on the basis of relevant circumstances in dispassionate manner by this court. Order on Sentence: As the accused has been convicted for offence under section 138 of N.I. Act, therefore, keeping in mind that the accused is first time offender, the accused is sentenced to undergo simple imprisonment for a period of six months. Order as regards compensation: It is clear from the record that the cheque in question was payable in 2010 i.e., two years ago and since then no payment has been made till date, thereby causing loss of use of money as well as interest to the complainant and in the opinion of the court, it would be justified, if the complainant is compensated with twice the cheque amount (including litigation charges) i.e., total Rs.1,30,000/. Accordingly, the accused is sentenced to pay compensation of Rs.1,30,000/ to the complainant. The compensation is to be paid within one month from today.
In the light of the judgment titled Vijayan Vs. Sadanandan Kumar, 2009 (6) SCC 652, in case of default of payment of compensation, accused shall CC No. 686/1/10 Page No.: 13 / 14 undergo simple imprisonment for a period of six months.
It is, however, made clear that undergoing sentence in default of payment of compensation shall not absolve the accused of his liability to pay compensation as the same shall in such case be recoverable under section 431 of Cr.P.C.
ANNOUNCED ON 10.04.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 10.04.2012 CC No. 686/1/10 Page No.: 14 / 14