Delhi District Court
Kheema Nand Kandpal vs Surender Singh on 30 March, 2024
In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
IN THE COURT OF METROPOLITAN MAGISTRATE EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Presided by: Sh. Divyam Lila
Sh. Kheema Nand Khandpal versus Sh. Surender Singh
CC No. : 60497 / 2016
Police Station : Pandav Nagar
Unique ID/ CNR No. : DLET02-009358-2016
Name of the Complainant : Kheema nand Khandpal S/o Sh. Bala Dutt
Khandpal R/o A-248, Street no.1, Vinod
Nagar, Delhi-110092
Name of the Accused(s) : Surender Singh s/o Sh. Attar Singh R/o C-
44, Village Bakoli, Delhi- 110036
Counsel for the Complainant : Sh. D.B. Singh.
Counsel for the Accused : Sh. Ajay Kumar Singh
Date of instituion of case : 20.12.2016
Date of Judgment : 30.03.2024
Final Order : Acquittal
Offence under Section : Section 138 of Negotiable Instruments
Act, 1881
-:JUDGMENT:-
STATEMENT OF FACTS AND REASONS FOR DECISION
1.The accused is facing trial for commission of offence punishable u/s 138 of The Negotiable Instruments Act, 1881 (in short, NI Act).
2. As per complaint, the complainant states that the accused is a peon in a government department of environment ministry, Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.1 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
accused regularly came to the premises of the complainant and promised to admit the son of the complainant in the MBBS entrance examination 2016 in AIIMS in minstry quota, and in lieu of the same the complainant would have to pay Rs. 20 lakhs in the party fund, all this happened in presence of one Sh. Sushil kumar. Therefore, the complainant handed over Rs. 20 lakhs to the accused on dated as Rs. 12,00,000/- on 02.07.2016 and Rs.8,00,000/- on 18.08.2016. Now, the complaint of the complainant is that the accused had failed to admit the son of the complainant in AIIMS Institute of Delhi in MBBS course and therefore he cheated the complainant of the said money.
3. Thereafter, the accused handed over the three cheques to the complainant; two cheques in favour of the complainant of Rs.4,00,000/- each bearing no. 581270 dated 18.09.2016 and 581271 dated 28.09.2016; and one cheque bearing no. 581267 dated 28.07.2016 of amount Rs.12,00,000/- in favour of Sh. Sushil kumar.
4. The present case pertains to the two cheques in favour of complainant of Rs.4,00,000/- each bearing no. 581270 dated 18.09.2016 and 581271 dated 28.09.2016. (herein referred as 'cheques in question'). The said cheques got dishonoured vide return memos dated 17.10.2016 with reason "Kindly contact the drawee bank" on presentation, the complainant sent a legal demand notice dated 15.11.2016 to the accused by registered post advising him to pay the amount of the cheque within 15 days of Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.2 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
the receipt of the notice. The accused did not pay the cheque amount for discharge of his liability even after expiry of statutory period of 15 days from the date of service of notice and hence the present case.
5. The cognizance of the offence u/s 138 NI of Act was taken by Ld. Predecessor of this court and thereafter the accused was summoned; thereafter the accused put up his appearance before the court and then the notice u/s 251 Criminal Procedure Code, 1973 (in short, "Cr. P. C") was framed.
NOTICE FRAMED ON THE ACCUSED:
5. Notice u/s 251 of Cr. P. C was served upon the accused. The accused did not plead guilty and claimed trial. The accused denied that he had given blank cheque to the complainant. In his defence, he deposed that he had kept the signed chequebook in his car, and complainant and him were working together in the same department. That he had misplaced his cheque book and had given the intimation to his banker about the same.
6. Thereafter, the matter was listed for Complainant's Evidence.
COMPLAINANT'S EVIDENCE:
7) To substantiate his case, the complainant adduced his evidence by affidavit as CW1 and also examined Sh. Sunil Kumar as CW2, who had also adduce his evidence by way of affidavit.
Thereafter the evidence of the complainant was closed, after both the witnesses were duly cross examined. The complainant Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.3 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
was examined as CW-1. The CW reiterated the facts mentioned in the complaint and relied upon documents filed along the case. The witness CW1 was cross-examined on behalf of the accused. During the same, following notable points were stated, relevant parts of which are reproduced verbatim:-
a) "I am working in Department of Eduction, Government of NCT of Delhi. I am 12" pass. I am aware of contents of my affidavit Ex. CW1/H. It is wrong to suggest that I had visited village Bakoli which is village of the accused.
I do not remember address of the accused which I have mentioned in my complaint. It is correct that I had drawn Rs.20,00,000/- (Twenty lacs only) from my account for admission of my Son under Ministry quota. It 's correct that Sushil Kumar is my good friend. It is wrong to suggest that I had met one Gulshan Kumar, R/o Village Bakoli through Sushil Kumar. It ts wrong to suggest that I had given any slip to the accused in which registration number of a vehicle, name of one Gulshan Kumar and factum of giving Rs.20,00,000/to Gulshan Kumar had been mentioned. I have knowledge that the accused had filed a police complaint against me on 09.12.2016 at PS. Alipur, Delhi. Vol. I came to know about the complaint after receiving summon of the court in 2018. I have not filed any complaint or initiated any proceeding against the accused before any other court. ! had no telephonic communication with Gulshan Kumar during year 2016-
17. I had telephonic communication with Sushil Kumar and accused during year 2016-17. It is wrong to suggest that I filed this complaint after coming to know the police complaint filed by the accused. It ts wrong to suggest that I had given Rs.12,00,000/to Sushil Kumar. Vol. I had Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.4 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
given Rs.12,00,000/to the accused. It is correct that I have filled entire particulars of cheques Ex. CW1/A and Ex. CW1/B except signature of the accused. Vol. I had filled up the particulars of the cheques in presence of the accused. It is wrong to suggest that on 17.11.2016, Sushil Kumar, the accused and ! went to the house of Gulshan Kumar at village Bakoli, Delhi-110036. I do not know about any injunction passed against me by a Rohini Court, Delhi. I do not remember the percentage of marks secured by my son in entrance examination of MBBS, AIIMS. My son had qualified the entrance examination. I do not remember the Rank secured by my son in the entrance examination. I do not know whether the accused has filed a complaint u/s 156(3) of Cr. PC before a Rohini Court against me. It is correct that I had given statement at PS. Alipur, Delhi in a complaint filed against me by the accused. It is wrong to suggest that I had not given any money to the accused. Vol. ! had given Rs.20,00,000/to the accused. It s wrong to suggest that I had given Rs.20,00,000/to Gulshan Kumar and not the accused. It is wrong to suggest that I in collusion with Sushil Kumar have filed false complaint against the accused to extort money from him. It is wrong to suggest that I am deposing falsely.
8) Thereafter, Sh. Sunil Kumar as CW2, who reiterated the facts mentioned in the complaint and he was cross-examined on behalf of the accused. During the same, following notable points were stated, relevant parts of which are reproduced verbatim:-
a) "I am class eight pass. I am not conversant with English language. My advocate had explained me contents of my affidavit. I am driver by profession. I was driver at Delhi Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.5 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
Secretariat at the time of transaction in question. It is wrong to suggest that there was talk between the complainant and accused for bribery of Rs.20,00,000/- (Twenty lacs only) for admission of son of the complainant. Vol. The complainant had given Rs.20,00,000/- (Twenty lacs only) to the accused to be deposited in the party fund of Minister Sh. Imran Hussain. It is correct that the accused and me were working at the same place. It is wrong to suggest that the accused had introduced me with Gulshan Kumar, S/o Sh. Sukhpal, R/o Village Bakoli, Delhi110036. It is wrong to suggest that the complainant used to help me financially from time to time. It is wrong to suggest that on 17.11.2016, the accused had taken the complainant and me with himself at the residence of Sh. Gulshan Kumar. I do not know whether Sh. Gulshan Kumar has filed a Civil suit against me and the complainant. It is correct that Police of PS. Alipur, Delhi had recorded statement of complainant in a complaint filed by the accused. I do not know whether the complaint filed by the accused was before or after filling the instant complaint by the complainant. It is correct that the complaint filed by the accused against the complainant is with respect to lis cheques. I do not know any advocate namely Sh. Brijesh Singh. I do not remember whether I had sent any legal notice dated 04.01.2018 to Sh. Gulshan Kumar. It is wrong to suggest that there was banking transaction between me and Sh. Gulshan Kumar. It is correct that complainant had to pay Rs.12,00,000/- (Twelve lacs only) to me. It is correct that the instant complaint is for cheque of Rs.8,00,000/- (Eight lacs only). It is wrong to suggest that I had given Rs.20,00,000/(Twenty lacs only) to Sh. Gulshan Kumar. Vol. I had - given Rs.20,00,000/- to the Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.6 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
accused. Again said, the complainant had given to the accused. It is correct that the complainant and me had jointly sent statutory notice u/s 138 of NI Act to the accused for cheque of Rs.12,00,000/-(Twelve lacs only). It is wrong to suggest that I have not filed any complaint against the accused with respect to cheque of Rs.12,00,000/-. Vol. I have filed a complaint against the accused which is pending in Court No.30, Karkardooma Courts. It is correct that the complainant has filed a Civil suit against the accused on my behalf against the cheque of Rs.12,00,000/-. It is correct that I am not party in the Civil suit filed by the complainant. It is wrong to suggest that the accused has repaid the amount given by the complainant to him. It is wrong to suggest that I had told Sh. Gulshan Kumar that the accused had returned the money of the complainant to him. I do not know whether any acknowledgement was given by the accused to the complainant at the time of transaction in question. lt is wrong to suggest that the transaction took place outside Delhi Secretariat. It is wrong to suggest that I am deposing falsely as I have to pay Rs.12,00,000/- (Twelve lacs only) to the complainant. It is wrong to suggest that I had telephonic communication with Sh. Gulshan Kumar regarding payment of Rs.12,00,000/- (Twelve lacs only). Itis wrong to suggest that the complainant had given money to Sh. Gulshan Kumar and not the accused and the accused had given the cheque in question to the complainant as security for the money given to Sh. Gulshan Kumar. It is wrong to suggest that the accused has no liability towards the complainant.
STATEMENT OF THE ACCUSED:
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8. Thereafter, Complainant's evidence was closed and the accused was examined u/s 313 of Cr. PC. Accused reiterated the defence that was taken by him in his notice u/s 251. The accused stated that he did not promise to the complainant for the admission of his son in MBBS course. One Gulshan, Sushil and complainant had the dealing for admission. He was not part of the dealing, and he gave the cheques to Gulshan as demanded by him, and Gulshan handed over the cheques to the complainant without his consent. He also stated that he had given the blank signed cheques.
9. The accused expressed his willingness to lead defence evidence (in short, DE). Accordingly, the matter was listed for defence evidence. Defence Evidence:
10. The accused had examined one witness, himself as DW1 under section 315 Cr.PC ; DW 1 had deposed in his chief examination; the excerpts of which are produced verbatim here:
1. "I know Gulshan as he is my neighbour. Sh. Sushil Kumar who was driver of Private Vehicle at Delhi Secretariat was known tome as I used to work in Delhi Secretariat as Peon/Gardner. I have never directly met complainant before this case. Sh. Sushil Kumar introduced Gulshan to complainant. No transaction of money between Sushil Kumar, Kheema Nand and Gulshan took place before me. In the month of November 2016 Sh. Sushil Kumar along with Khema Nand, Sushil Kumar came to my house and told me that Gulshan Kumar did not return them their money. Complainant had given money to Gulshan Kumar for admission of his child in MBBS. After that I took the complainant and Sh. Sushil Kumar to the house of Gulshan Kumar. I told Gulshan Kumar to return the money given to him. Sh. Gulshan Kumar told me that he did not had the money with him. He asked me to become a guarantor and give security cheques. 7 7 After that I gave four blank signed cheques to Gulshan Kumar. Gulshan Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.8 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
Kumar later told me that he had given my cheques to complainant. He told me that in one month time he will make payment to complainant and will return my cheques to me. ; After some time! again received a phone call from Sh. Sushil Kumar who told me that payment has not been made by Gulshan Kumar. I went to the house of Gulshan Kumar regarding this and my cheques. His mother came out and abused and misbehaved with me. After that Gulshan filed a complaint against me in Rohini Civil Court. The certified copy of suit for permanent injunction and written statement is Ex. DW1/1 (colly 29 pages). Gulshan Kumar admitted in Rohini Court that he has taken money from Kheema Nand. Gulshan Kumar withdrew that case against me. Complaint dt. 09-12- 2016 was also filed against Gulshan Kumar and ORs to the SHO, PS Alipur and other higher authorites which is Ex. DW1/2 (6 pages). Our complaint was turned into a complaint case U/s 420 against Gulshan Kumar, Sushil Kumar and Kheema Nand which is pending in Rohini Court, copy of same is Mark D1 (colly 24 pages). Gulshan kumar also handed over copy of legal notice of a different case (sent by Sushil Kumar through his advocate Brijesh Singh) tome which is Mark D2 (colly 2 pages). The present case was filed after my complaint U/s 420 IPC. I do not have any liability towards complainant as I have not received any amount from the complainant.
11.The accused / DW1 was duly cross examined by the complainant; the excerpts of the cross examination are as follows:
1. "I met the complainant on Minto Road at about 12:30 pm for the first time. I do not remember the date or year when J met him for the first time. Vol. Sushil was also present when I met the complainant. I never met the complainant after that one time. Again said I also met the compiainant one more time when he came to my house. I do not remember the date or time Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.9 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
when he came to my house. !t was about 1015 days after I first met him. Sushil was also present with the complainant when he came to my house. They stayed at my house for roughly 10 minutes. After about 10 minutes they took me to the house of Gulshan. Complainant came to my house and demanded money from me. I told him that money was given to Gulshan and Gulshan will return the same. When we went to Gulshan's house, he assured the complainant that he will pay him the amount which was due. It is correct that when we went there, mother of Gulshan created ruckus. I did not went to house of Gulshan after that. It is correct that Gulshan Kumar has filed a case of permanent injunction against me in Rohini Courts, Delhi. It is further correct that the matter was settled in Rohini Courts and I assured Gulshan that I will never visit his house. I did not give any cheque to complainant. ! gave two cheques to Gulsh n as security. Gulshan told me that he needed money from complainant Kheema Nand Kandpal and he will give my cheques as security to complainant. He also told me that after he gets the loan he will give his cheques to complainant and will return my cheques to me. Gulshan told me that he will return my cheques after one week. It is wrong to suggest that Kneena Nand Khandpal had given Rs.20.00 lakhs to me and against that liability I had issued the cheques. It is further wrong to Suggest that Gulshan Kumar did not take any amount from complainant Kheema Nand Khandpal. Contents of my complaint D1/2 is correct and I hecame aware that Sh, Gulshan Kumar is a fraud when complainant visited my house, When I along with the complainant visited the house of Sh. Gulshan Kumar, Gulshan asked four cheques from me. I gave the cheques to Gulshan on the same day.
2. Q:Why did you give your cheques to Gulshan when you knew that he was a fraud?
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3. Ans:After giving the cheques when I was coming out, the neighbours told me that I had given my cheques to a fraud person. Only then I became aware of his nature name of the neighbours were Azad and Amar Singh. Gulshan assured me that he will return the cheques within one month but he did not do the same.
4. Q:In your Notice U/s 251,CrP.C you had answered that your cheque book was kept in your car and same has' been misplaced whereas later, you took a different stand. What do you have to say?
5. Ans:Present cheques were given to Gulshan. But my cheque book containing rest of the cheques was also misplaced.
6. I do not have any other case pending against me. I did not give any other cheques to Gulshan except the four cheques. It is wrong to suggest that I have liability against the complainant. It is wrong to suggest that I am deposing falsely". Final Arguments:
10.I have heard arguments on behalf of both the parties, gone through the judgments relied upon by them and have carefully gone through the material on record.
11.It is submitted by the Ld. Counsel for complainant that accused is liable to be convicted as all ingredients of offence u/s 138 of NI Act are fulfilled in the instant case and accused failed to rebut the statutory presumption in favour of the complainant.
On the other hand, Ld. Defence counsel led emphasis on the defence that the present cheque was misused by the complainant and the object of the debt in question is unlawful and illegal; therefore no reliance can be place on such illegal object and consideration.
LEGAL DISCUSSION ON THE POINT OF LAW:
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12.It would be apposite at this stage to briefly discuss law applicable to the offence of dishonour of cheque. For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:
1. The cheque was drawn by a person on an account maintained by him for payment of money.
2. The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
13.In the present case, there is no dispute regarding fulfilment of conditions (1),(3),(4),(5) and (6). In his notice u/s 251 Cr.P.C, the accused stated that he had only signed the cheque and particulars were not filled by him.
14.Factum of dishonour of the cheque is not in dispute. It is also not in dispute that the cheque was presented within the statutory period. Dispatch of legal notice within the statutory time limit is also not in dispute. The accused had accepted issuance of cheque, accused has also accepted his signature and denied receipt of the legal notice.
Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.12 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
15.The Hon'ble Supreme Court of India in C.C. Alavi Haji Vs. Palapetty Muhammed, 2007 (6) SCC 555 while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution and any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot protect himself/herself behind the technical demand of non-service of legal notice. The relevant extract of the decision is reproduced herein:-''It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any 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 Section 138 of Act, make payment of the cheque amount and submits to the court that he had made payment within 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 alongwith 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. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''.
16.Thus, in view of the above said law, the summons on the accused was duly served; the mandatory statutory legal notice is deemed to have been served on the accused in the present case. Institution of the complaint within limitation is also not in dispute.
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16.Thus, the basic and significant question for determination is:
Whether the accused had issued the cheque in question in discharge of legally enforceable debt or liability?
17.It is material to discuss that a negotiable instrument including a cheque carries following presumptions in terms of Section 118
(a) and Section 139 of the NI Act: Section 118 of the NI Act provides : "Presumptions as to negotiable instruments: Un- til the contrary is proved, the following presumptions shall be made: of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;" Section 139 of the N.I Act further provides as follows: "Presumption in favour of 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." Thus, the combined effect of Section 118(a) and Section 139 of NI Act raises a presumption in favour of the holder of the cheque that he has received the same for discharge, in whole or in part of any debt or other liability. However, the said presumptions are rebuttable in nature.
18.In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a three-judge bench of Apex Court observed that:- "Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. The Hon'ble Supreme Court further observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. The accused is not expected to discharge an unduly high standard of proof and Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.14 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
he/she is only required to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would be on the basis of "preponderance of probabilities".
19.Hon'ble Supreme Court in M/s Kumar Exports Vs. M/s Sharma Carpets AIR 2009 SC 1518 held that: "The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.15 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act."
20.The court has to now consider whether the accused has been successful in discharging the burden of proof.
21.Accused has admitted the fact that the cheque in the present case bears his signature. The plea of accused that the particulars of the cheque in question were not filled by him is of no help. In Ravi Chopra vs State & Anr, Hon'ble High Court of Delhi held: "Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp."
"A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the pur- poses of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer."
Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.16 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
22.Further, in Bir singh Vs. Mukesh Kumar, (2019) 4 SCC 197 it was held that:-"It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
23.In the backdrop of legal position as enunciated above, it is to be examined by this Court that whether the accused on a scale of preponderance of probabilities has been able to rebut the presumption which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent so as to shift the onus placed upon the accused again on the complainant. As held by Hon'ble Supreme Court of India in case of Kumar Exports vs Sharma Carpets (2009) 2 SCC 513, the accused can either prove the non−existence of the consideration and debt by direct evidence or by bringing on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt either did not exist or their non−existence was so probable that a prudent man may act upon the plea that they did not exist. If the Court comes to the conclusion that the accused has not been able to rebut the presumption raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour.
24.Now, the question before the court is whether the accused was able to successfully rebut the presumptions raised against him by direct evidence or by bringing on record such facts and circumstances; for the same the evidence on record has to be examined.
25. It is the case of the complainant, that he had given cash of Rs.20 lacs to the accused, as he wanted to secure the admission Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.17 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
of his son in the MBBS Course of AIIMS, New Delhi through Ministry Quota through the connection of the accused in the Ministry. It is the case of the complainant that accused could not get the admission of the son of the complainant in the said institute, nor has the accused returned the said money to the complainant. It is case of the complainant that to return the said money, accused had issued the two cheques in question, which were dishonored. Now it is the case of the complainant that the said money is for payment of legally enforceable debt and therefore, he is entitled for the same.
26.In the cross-examination of complainant / CW-1, complainant maintained his stand that he withdrew Rs.20 lacs for admission of his son in the Ministry Quota and he had given the said payment to the accused. Complainant had also stated that he had filled the cheques, except the signature in the presence of the accused. The complainant could not state what was the presentage of marks secured by his son in the entrance exam of AIIMS in MBBS Course, and he could not tell the rank secured by his son but his son qualified the entrance exam. The witness of the complainant CW-2 also maintained the same stand.
27.The defendant maintained his stand that the payment was actually given to Sushil and Gulshan, and all three of them were involved in the said transaction and he was not involved in the same.
28.On perusal of the evidence, going through the testimony of the witnesses, it has come to the fore that the complainant had sought to secure the seat for MBBS Course in the AIIMS Institute, Delhi by Route alleged that Environment Ministry would have quota. Ld. Counsel for the complainant argued that the Govt. Ministry has certain quota in the name of Central Pool for the year 2015-16, and therefore, relied from the Office Memorandum dated 15.09.2015 issued by Ministry of Health Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.18 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
and Family Welfare. The said office memorandum states about the self financing scheme for foreign students, whereby it has been stated that Central Pool Quota Seats is a seat for foreign national students of friendly foreign countries, nominated by Students Cell of Ministry of External Affairs for admission to Central Pool Quota, those students are exempted from appearing in the entrance examination, subject to minimum qualification laid down therein. These students would have to be present in the merit list, issued by the Ministry. Notably, the institute AIIMS, New Delhi had five seats reserved for the said quota. Similar, Office Memorandum and notifications for various years has been relied upon by the complainant to show that he had certain Ministry Quota.
29. On perusal of all these notifications, it appears that complainant is relying upon the self financing scheme quota seats, whereby certain quidelines has been issued time to time under the Medical Council of India Regulations on Graduate Medical Education, 1997 (amended on time to time). The said scheme is opened for certain category of students like Foreign National, Disabled person etc. The complainant could not point out, in which category for self financing scheme quota did the son of the complainant qualified and was eligible. Complainant could not show any application made for availing such benefit to the concerned Ministry, nor any other authority. The complainant could not point out any circular or requirement of payment of Rs.20 lacs in the Party Fund or otherwise, to avail the said benefit, if any under the self financing scheme. Infact, the self ficianal scheme memorandum guidelines states that candidates under the Scheme are exempted to give the exam. In the present matter, as per the complainant, the son of the complainant not only gave the exam, but qualified for the same. However, no documentary evidence is furnished which required Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.19 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
the complainant to deposit / pay Rs.20 lacs in Party Fund for availing the seat in the AIIMS Insititute of Delhi.
30.In the absence of any cogent evidence that any such Ministry seat exists, whereby payment is sought in party fund for availing the seats, it can only be concluded that the complainant was seeking an illegal objective of purchasing / securing admission of his son in MBBS Course at AIIMS, New Delhi through contact in the Ministry. Section 23 of the Contract Act, 1872 has stated that object of an agreement is unlawful if the same is forbidden by law, immoral and opposed to public policy. The entrance of the said institute is through the exam conducted, and complainant was seeking the admission of his son despite allegedly clearing the exam. It is clear that the seats of MBBS Course at AIIMS is not for sale. The complainant and the accused worked at same premises in same department at same level and complainant himself is a Govt. Servant, and he cannot be claiming to be Gullible. It appears that he knowingly sought to follow an unlawful objective by making the said payment. Therefore, there is no other conclusion which can be drawn, apart from the conclusion that the said debt is not legally enforeciable and therefore, it is not covered under the Section 138 of NI Act. Reliance can be placed upon the judgment of 'Smt. Vimmi Chawla v. Deepak Sethi', passed by Hon'ble Delhi High Court on 29.11.2023 in the RFA 756/2023, whereby factual matrix was same, however, the subject matter was a civil dispute.
31. As discussed above, since the debt itself is not legally enforciable, the offence of the cheque dishonoured under Section 138 of NI Act is also not proved and therefore, the benefit shall be given to the accused.
Ct Case no. 60497/2016 Kheema Nand Kandpal vs Surender Singh Page no.20 of 21 In the court of Sh. Divyam Lila, MM (MCD), East District, Karkardooma Courts, Delhi.
DECISION ON THE CASE
32.Having discussed the marshalling of evidence produced before this court, it comes to fore that in preponderance of probabilities; the complainant has failed to prove the said loan was covered under the legally enforceable debt as stipulated in the section 138 NI act and as deliberated upon by the aforementioned judgments. Further the complainant has appeared to have filed the present case for the object of recovering his money which was given for illegal objective for purchasing a seat in the educational institute AIIMS for the MBBS course; which is not only illegal but also immoral. Therefore, in view of discussion above, the court comes to the conclusion that the accused is able to tilt the scale of preponderance of probabilities in his favour, and clear doubt has been raise by the accused. Therefore, I do not find any hesitation in holding that the accused is acquitted for dishonour of the cheque in question. Accused is therefore set at liberty subject to bonds under section 437A of Cr.P.C. Announced in the open Court today i.e. 30.03.2024 (DIVYAM LILA) MM(Municipal) East District, Karkardooma Court, Delhi 30-03-2024 Let the copy of this judgment be uploaded on the CIS and copy of this order be given to the parties as per rules.
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