Delhi District Court
Vijay Kumar vs Geeta on 5 September, 2018
IN THE COURT OF SH. ASHOK KUMAR, MM04 (NI ACT) CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI CC No. 524979/16 U/S 138 NI Act Vijay Kumar, S/o Late Sh. Mohan Singh, R/o G22, Second Floor, Double Storey Quarter, Pahar Gabnj, Delhi. .......................Complainant Versus Geeta, W/o Sh. Suresh @ Surender, R/o House No. 106869, Bartan Market, Sadar Bazar, Delhi110006. .........................Accused. Offence Complaint of or proved. : Section 138 of Negotiable Instrument Act. Plea of accused : Pleaded not guilty Date of Institution : 20.05.2013 Date of Reserving order : 05.09.2018 Final order : Convicted Date of pronouncement : 05.09.2018 JUDGMENT
FACTS OF THE CASE C.C. No. 524979/16 Page 1of 2 1 At the outset, it is pertinent to mention that in the instant case, vide order dated 01.03.2018 the judgment of conviction and order on sentence has already been passed against the accused. The accused aggrieved by aforesaid has preferred appeal against the judgment of conviction and order of sentence passed in the present case. However, Ld. Appellate Court vide judgment 31.07.2018 has remanded back the present case with observations that the procedure of recording statement of accused, as prescribed u/s 313 Cr.P.C has not been followed in the present case and hence directed to trial court to record the statement of accused afresh as per the procedure laid down u/s 313 Cr.P.C and passed the judgment afresh. In view of the judgment passed by Ld. Appellate Court, the statement of accused recorded u/s 313 Cr.P.C afresh as per the procedure laid down u/s 313 Cr.PC and case proceeded for further proceeding. The accused in her defence vide her statement recorded separately had adopted the testimony of witnesses examined by her earlier in her defence as DW1 and DW2 and states that she does not want to examine any other witness in her defence. Thereafter final arguments heard afresh on behalf of both parties. Now in view of above, I am proceeding to pronounce judgment afresh in the present case.
2 The facts of the case of the complainant are that the accused in discharge to repay the friendly loan taken from the complainant has issued the cheque in question bearing No. 363738 dated 22.04.2013 of Rs. 55000/ drawn on State Bank of India, Sadar Bazar Delhi in favour of the complainant which upon presentation got dishonoured for the reason " Funds Insufficient " and even after the expiry of statutory period of 15 days of service of legal notice dated 23.04.2013, did not pay the cheque amount.
C.C. No. 524979/16 Page 1of 2 TRIAL PROCEEDINGS 3 Thereafter, the complainant filed the complaint under Sec. 138 NI Act
after the accused failed to make the payment within 15 days of the receipt of legal notice. On the said facts, the accused persons were summoned and notice under Sec. 138 NI Act was framed against the accused to which she pleaded not guilty and claimed trial. Thereafter, case was fixed for cross examination of complainant. The complainant was cross examined by accused and CE was closed on 26.11.2014. As stated in the initial para of the judgment, as per the direction of Ld. Appellate Court, statement of accused was recorded u/s 313 Cr.PC r/w 281 Cr.P.C as per the procedure laid down in the said provisions. Accused preferred to lead defence evidence and had adopted the testimony of witnesses recorded earlier i.e. of Inderjeet Khurana as DW1 and Ms. Lata Rani Kohli, Deputy Manager, SBI Sadar Bazar as DW2. Thereafter, final arguments were heard afresh. The following documents were relied by the complainant in her evidence :
4 Complainant proved the following documents in his presummoning evidence : i Cheque in question is Ex. CW1/1.
ii Bank returning memo Ex. CW1/2.
iii Legal notice and postal receipts and , AD cards are Ex. CW1/3
to Ex. CW1/6.
iv Affidavit of evidence of complainant is Mark R.
Relevant Law
5 The ingredients to prove the commission of offence under Sec. 138 NI Act
have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) C.C. No. 524979/16 Page 1of 2 SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt ofar the said notice"
Presumption in favour of the holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
C.C. No. 524979/16 Page 1of 2 Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
On service of legal notice in cases under NI Act In this respect it has been provided in the case titled as C.C. Alavi Haji Vs Palapetty Muhammed and Anothers (2007) 6 SCC 555 that the entire purpose of service of legal notice to the accused under Sec. 138 NI Act is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of legal notice and thereby free himself from the penal consequences. It conceives cases where a wellintentioned drawer may not have made necessary arrangements for reasons beyond his control to honour the cheque drawn by him and hence this opportunity has been provided. Hence, this provision is meant to protect honest drawers whose cheque may have been dishonoured for the fault of others or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. Hence, any honest 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 Sec. 138 NI Act, make payment of the cheuqe amount and submit to the court that he has made payment within 15 days of receipt of summons (by receiving a copy of the plaint with the summons) and, therefore, the complaint is liable to be rejected. Where a legal notice is sent under registered cover with proper address and stamp and sent along with the summons and complaint, then if it is contended that legal notice was not received only with a view to cheat the complainant, and such offer of payment was not made within 15 days of receipt of summons, then such dishonest drawer can not contend improper service of the notice by virtue of applicability of presumption under Sec.
C.C. No. 524979/16 Page 1of 2 27 GC Act and 114 Evidence Act. 6 ARGUMENTS HEARD AND DEALT WITH
I have heard the submissions of both the Ld. Counsel for the complainant as well as the accused.
7 Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not. 7.1 The first ingredient of the offence is concerned, the accused has raised defence in notice u/s 251 Cr.P.C that he has never issued the cheque in question to the complainant and has also not signed the impugned cheque, however, Ms. Lata Rani Kohli, Deputy Manager, SBI, Sadar Bazar, ( the branch from where the impugned cheque pertained) examined as DW2, has categorically deposed that the impugned cheque pertained to the account no. 10753674434 which belongs to account holder Smt. Geeta Saini i.e. the accused. Further in cross examination, DW2 has deposed that " As per our record signature are same upon the chque bearing no. 363738 and account no. 10753874434". Hence, it is clear from the testimony of DW2 that the cheque in question Ex. CW1/1 pertained to the account of accused and same also bears the signatures of the accused. It is pertinent to mention here that accused has not taken any steps to prove his aforesaid defence by examining any handwriting expert. Hence the first ingredient stands proved.
7.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheque are proved on record in view of the statement of DW2 as discussed above, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan C.C. No. 524979/16 Page 1of 2 AIR 2010 SC 1898.
In view of the aforesaid law, the presumption under Sec. 139 NI Act works in favour of the complainant once he files the necessary documents like the dishonored cheque, returning memo, legal notice and delivery proof and avers that the cheque were issued for legally enforceable debt or liability which the accused has failed to pay despite expiry of 15 days of the delivery of legal notice. In the present case not only the presumption u/s 139 N.I. Act that the cheque was issued in favour of the complainant owing to a valid consideration has not been rebutted by the accused. The accused as well as witness DW1 Inderjeet Khurana have deposed that the loan was taken from the complainant and both have stated, the accused in the defence plea to the notice u/s 251 Cr.P.C as well as u/s 313 Cr.P.C and DW1 in his deposition that they have taken the loan but they have returned the same. However, none of the said person have filed any proof regarding the repayment of the loan. Further the accused have stated in the said defence plea as well as the statement u/s 313 Cr.PC that she has paid back the loan taken in 2005 while DW1 states he took the loan in 2006 and further DW1 states that the loan was on account of the fact that the accused gave him the loan by borrowing it from the complainant but interestingly the accused does not depose that said loan was taken from the complainant to give it to DW1 who was in need of the account for the reason of shifting of his business from Sadar Bazar to the pavement. Hence, this is a material omission in the statement of accused and it appears that the story of repayment has been cooked up. Instead the admission of the accused of having taken the loan has made the case of the complainant stronger. Further the accused has stated that the signatures in the cheque has been forged which has been contradicted by DW2 Bank witness and further it has been categorically stated by the bank witness that the signatures on C.C. No. 524979/16 Page 1of 2 the cheque belong to the accused only. If the signatures would have been forged, the reason for dishonour of the cheque would have been likewise and not " Funds Insufficient". Hence, the plea of the defence counsel that while the complainant has stated in her complaint that the loan was given in 2012 while the originally printed number of the account does not exist any moire after 2010 which shows that no such loan was given by the complainant is not acceptable since it has been proved by the testimony of the bank witnesses that the signatures are of the accused and the account also belongs to the accused which is a changed account number after the updation of the computer software and leaflet also belongs to old account number which has been given a new account number. Hence, it cannot be said that loan could not have been given in 2012 when the account was closed in 2010 because the testimony of the bank witness that the account is still existing and only the account number has changed due to the computer updation, has gone unrebutted. Hence this ingredient stands proved.
7.3 The third ingredient of the offence is that cheque must be presented to the bank within a period of six months from the date mentioned on it. The cheque is Ex. CW1/1 and which were returned back unpaid on 22.04.2013 and the cheque dated 22.04.2013. So it is evident that same was presented for payment within the statutory period of six months.
7.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheque was returned unpaid for the reason "funds insufficient". The original bank returnmemo Ex. CW1/2 placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/2 went uncontroverted.
7.5 The fifth ingredient of the offence is that the demand notice must be issued to the accused within 30 days of the intimation of dishonour of cheque and C.C. No. 524979/16 Page 1of 2 same be served upon the accused. The accused has denied receipt of legal notice in his admission u/s 294 Cr.P.C. In view of Judgment of CC. Alavi Haji (Supra) this point can not be raised any more by the accused. If the accused had not received the legal notice, then he could have offered the payment within 15 days from the receipt of the summons in view of my aforesaid findings in the second ingredient that cheque was issued in discharge of legal liability. Hence, this ingredient also stand proved.
7.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. It is clear that the accused did not make the payment within 15 days and that is why the complainant has filed the case.
8 In view of the foregoing discussion it is proved that the cheque was presented against a legally recoverable liability in favour of the complainant and the cheque got dishonoured for reason of insufficient funds, the cheque was drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice. DECISION
9. In view of the above discussion, the aforesaid accused is convicted for the offence under Sec. 138 NI Act and she be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 05.09.2018 MM04(NI ACT) CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
C.C. No. 524979/16 Page 1of 2
IN THE COURT OF SH. ASHOK KUMAR, MM04 (NI ACT)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CC No. 524979/16
U/S 138 NI Act
Vijay Kumar .......................Complainant
Versus
Geeta, .........................Convict.
ORDER ON POINT OF SENTENCE
Present : Complainant in person with counsel.
Convict in person with counsel.
Vide separate judgement of even date, the accused is convicted for commission of offence under Sec. 138 NI Act for nonpayment of cheque amounting to Rs. 55,000/. Here, it is pertinent to mention that I am proceeding to listen on the point of sentence with the consent of the convict and his counsel today itself and also to make the order on point of sentence.
It is stated by the convict she is aged about 58 years, that she is earning her livelihood by doing housemade work. She has family consisting of husband and three children out of which two have married and one son and her husband are ailing from severe skin disease. She further submits that she is the only person to take care of her family members. It is stated that a lenient view may be taken against the convict while imposing the sentence and convict be not sentenced to imprisonment. Convict submits that she is not a previous convict in any offence.
In view of the fact that the matter is pending since year 2013 and is more than 4 years old and keeping in view the fact that the cases under Sec. 138 C.C. No. 524979/16 Page 1of 2 NI Act are unduly clogging the dockets of the courts leading to docket explosion and extraction of judicial time which could have been given to other cases and on the other hand due to the dishonest issuance of cheque, the same is eroding of credibility of such instruments, this court does not deem it necessary to extend the benefit of Probation of Offender Act to the accused.
In view of the facts and circumstances, the convict is directed to suffer simple imprisonment of one years and to pay fine Rs 1,10,000/ (which is the double of the cheque amount) and in default of payment of the same, the convicts shall suffer simple imprisonment for further six months for offence punishable u/s 138 NI Act. Hence, if the fine is not paid then the total period of simple imprisonment is one and half years. Since the complainant has suffered lot of harassment and has had to launch and sustain prosecution for a long period by denial of legally recoverable amount due to him, hence all of such fine be paid as recompense to him. Copy of judgment and order on sentence be given to the convict.
Announced in the open (ASHOK KUMAR)
Court on 05.09.2018 MM04(NI ACT) CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
C.C. No. 524979/16 Page 1of 2