Delhi District Court
File Of The Case Bearing No. 3368 /06 ... vs . Ved Bansal. He Has on 19 May, 2010
IN THE COURT OF MS. TWINKLE WADHWA , METROPOLITAN
MAGISTRATE, MAHILLA COURT, CENTRAL DISTRICT
DELHI
CC no. 461/1/06/03
P.S. Moti Nagar
U/S 138 N.I. Act
Case ID NO. 02401R0989842003
JUDGEMENT
1. Sl. No. of the case : 461/1/06/03
2. Name of the complainant : S.P. Aggarwal
3. Date of commission of offence : 15.11.02
4. Name of accused and Address : Ved Bansal
1B, Under Hill Road,
C/o National Steel and Metal
Industries,
30, DLF Industrial Area,
Najafgarh Road, New Delhi
5. Offence complained of : U/s 138 N.I. Act
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted
8. Date of such order : 17.05.10
Date of Institution of case : 24.02.03
Date of hearing Final Argument: 03.05.10
Date of decision of case : 19.05.10
CC no. 461/1/06/03 1/11
BRIEF FACTS OF THE REASONS FOR THE DECISION
1 By way of this judgment, I shall conscientiously adjudicate upon the
complaint u/s 138 Negotiable Instruments Act r/w 200 Cr.PC filed by the complainant S.P. Aggarwal against Ved Bansal.
2 Briefly the case of the complainant before the court is that that accused no.1 had taken friendly loan from complainant amounting to Rs. 2 lakhs in the month of April 2002 and for re payment of the same, accused no.2 had issued a cheque bearing no. 834609 dt. 15.11.02 drawn on Syndicate bank duly signed by accused no.1 as partner of accused no.2 . The said cheque when presented for payment returned back with the remark "Account does not exist" . The cheque return memo dt. 27.12.02 is Exc.CW1/2. Original cheque is Ex.CW1/1. It is further the case of the complainant that the accused was served with notice dt. 08.01.03 and the same notice was duly received by accused as per AD card received back duly signed dt. 15.01.03, legal notice is Ex.CW1/3, post receipt is Ex.CW1/4 and 1/5 and AD card is Ex.CW1/6 and 1/7. That as accused failed to make payment within stipulated period, hence this case.
3 The complainant in his evidence has examined himself as CW1 and in his cross examination he has denied that his father was working as accountant with accused. He has denied that he has made any entries in the cheques and stated that the entries have CC no. 461/1/06/03 2/11 been made by the accused himself. He has denied that the said cheque was issued in the year 1996. He has denied that in 1996 he approached the accused for making some payment to him and in lieu of the same this cheque was issued to him. It is further stated by him that it is illegal transaction and he does not do such activities. He has further denied that first he had to make the payment then accused was to issue cheque to him. He has further denied that after obtaining cheque from the accused, he has failed to make payment to him. He has further denied that he ever represented to the accused that the cheque is lost. He has denied that he has manuplated the date on the issue of cheque or any other particulars whatsoever. He has further deposed that he has not mentioned this transaction of loan in his income tax return as the same is not required. 4 The case of the accused is that although the cheque were issued by him however the same were issued in the year 199596 at the specific request of the complainant for the purpose of giving him certain credit enteries and the cheque was undated. Complainant was required to pay him cash amount in lieu thereof. He has further admitted that he received legal notice as stated in his S.A. 5 In his defence evidence, he has called record clerk from Syndicate bank who has deposed that accused has only one current account with them at present and the cheque in question was not issued by the accused from the current account maintained with the CC no. 461/1/06/03 3/11 bank.
6 DW2 is ahlmad in the court Sh. Rakesh Kumar, MM who has brought the case file of the case bearing no. 3368 /06 titled as S.P.Aggarwal Vs. Ved Bansal. He has exhibited photocopies on record, originals lying in that file . Ex.DW2/1, DW2/2 2/3, 2/4 ,2/5 , 2/6 are the statement of account in the books of the complainant. These books of account pertained to accused S.P. Aggarwal.
7 I have heard both the arguments addressed by both the parties and gone through the record.
8 It shall be first important to examine the requisites of bringing home the conviction of the accused out of the present criminal prosecution initiated by the complainant. As in any other criminal proceedings or trial, the nature and extent of proof required against the accused is that of "proving the commission of offence in question by the accused beyond the pales of reasonable doubt." To prove the same, the onus lies upon the complainant to show on record an unbroken chain of events leading to commission of offence by way of proving the necessary ingredients of the offence in question. If there is any discrepancy or lack of creditability of the testimonies of the complainant witnesses, the accused shall be entitle to benefit there of. However , it is to be borne in mind that the present prosecution arises out of the criminal complaint in a CC no. 461/1/06/03 4/11 summons triable case arising out of a special enactment of Negotiable Instruments Act, 1881 as amended and notified by the Act 55, 2002. Accordingly the rules of evidence shall be governed by cardinal rules of evidence laid down by Indian Evidence Act 1872 subject to law laid down by Special enactment of Negotiable Instruments Act. 9 In the back drop of the aforesaid the following ingredients u/s 138 Negotiable Instruments Act are required to be proved :
1 The cheque should have been issued by the accused in discharge in whole or in part of any debt or any other liability.
2 The cheque should have been presented to the bank within a period of 6 months from date of its being drawn or period of validity which is earlier. 3 The cheque should have been dishonoured either because of insufficient funds or for the remarks Exceeds Arrangements.
4 The payee or holder in due course of cheque as the case may be makes the demand for payment of cheque amount by demand notice which has to be given in writing to the drawer of cheque within 30 days from the receipt of such information. 5 The drawer of cheque fails to make payment within 15 days of the receipt of such notice.
CC no. 461/1/06/03 5/11 6 That the complaint has been filed within one month of the cause of action being arisen in favour of the complainant.
10 The aforesaid ingredient are to be proved in light of the law governing the trial under the Negotiable Instruments Act which lays down the presumption in favour of the holder of the cheque to the fact that the cheque was received for the discharge "in whole or in part" of any debt or other liability by the drawer. This presumption has been laid down u/s 138 Negotiable Instruments Act and the same is to be read with Special rules of evidence under chapter (XIII) of Negotiable Instruments Act 1881, in particular Section 118 of the Act. It has been held by the Hon'ble Supreme Court of India in AIR SC 145 that "there is a legal presumption that the cheque was issued for the discharge of antecedents liability and that presumption can be rebutted only by the person who drew the cheque". It is accordingly the law of the land that the legal presumption of the cheque being issued in favour of the holder for due discharge of liability shifts the burden of proof upon the accused whereby it is for the accused to adduce rebuttal evidence to establish that the cheque was not issued towards any antecedent liability. The court is to accordingly appreciate the evidence in light of this applicable law regarding burden of proof.
11 The issuance of cheque is admitted by accused. It i submitted by accused that CC no. 461/1/06/03 6/11 these cheques were not given against any consideration. They were given to the complainant in order to make his black money white. Further , on the other hand complainant has proved that this cheque was duly issued by accused to him, signatures on the cheque are not denied by accused. Accused accepted that he received the legal notice. Accused is only denying the date on the cheque and his case is that the cheque was undated and was issued in the year 1996 and hence when it was presented in the 2002. Then, he had already closed his account.
12 As far as the suggestion that blank cheque was given to him is concerned , another issue is whether the complainant was authorised to fill the same or not even if it is presumed that cheques were blank. As per section 20 of N.I. Act, where one person signs and delivers the blank negotiable instruments, he thereby gives prima facie authority to the holder to make and complete the amount specified and not exceeding the amount mentioned therein. Though section 20 is applicable and talks about stamp paper, there is no reason to presume that the said analogy would not apply to cheques. It is important for the purpose of applicability of this presumption as is laid down in section 20 that the cheques must be signed and delivered to the other person. In this case, signing of the cheques as well as delivery of the same to the complainant has been admitted by the accused. It is clearly presumed in section 20 that in such cases delivery CC no. 461/1/06/03 7/11 along with the cheques creates the authority to fill up the instrument so that it becomes a complete negotiable instrument. Anything to the contrary must be proved by the accused in evidence.
13 It has further been held in that the onus is entirely upon the complainant to prove beyond the pales of reasonable doubt that the cheque(s) in question were issued by the accused in question in discharge of his liability and by virtue of operation of presumption u/s 139 Negotiable Instruments Act r/w 138 of the Act, the burden of disproving that the cheque was issued and drawn for consideration lies upon the accused. It has been held in Modi Cement Ltd Vs. Kuchil Kumar Nandi AIR 1998 SC 1057 as under "
"Once the cheque is issued by drawer the presumption u/s 139 of the Act must follow and merely because the drawer issues a notice to the drawer or to the bank for stoppage of payment , it will not preclude the action u/s 138 of the Act by the drawer or hold of the cheque in due course."
14 It has been further held in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and anr JT 1999(7) SC 558 that as the signature in the cheque is admitted to be that of the accused , the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque CC no. 461/1/06/03 8/11 received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The law in this regard stands fortified by another Apex Decision in 2001(2) AD (CR) SCC 449 in case title Hiten P Dalal Vs. Batinder Nath Banerjee wherein Hon'ble Supreme Court of India has held "presumption u/s 139 Negotiable Instruments Act is to be rebutted by proof and not by mere explanation which is merely plausible. The fact is said to be proved when its existence is 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 exists. Unless, therefore, the explanation is supported by prove, the presumption created by the provision cannot be said to be rebutted."
15 U/s 139 N.I. Act, it is presumed that consideration is lawful. In the present case, it stands proved that notice of demand was duly sent as service is duly proved. Further, it stands duly proved by way of bills of the complainant that cheques were issued in discharge of legally enforceable debt. The cheque was presented within the period of six months. The cheques were dishonoured for "Account does not exist". Notice in this case was duly sent. Thereafter accused failed to make payment. Neither are the signatures denied and signatures are rather admitted. 16 Counsel for the complainant has placed on record several judgments CC no. 461/1/06/03 9/11 thereby submitting that where the account is already closed by the accused before cheque is presented, it is covered u.s 138 N.I Act. He has further submitted that even if cheque is given on an account which is already closed and the same is dishonoured on presentation , offence u/s 138 N.I. Act is still made out. Further, it was held in Shivendra Sansguiri Vs. M/s Adineo in II(1996) BC 569 of Bombay High court. It was held in J.Veeraraghavan Vs. Lalith Kumar in I(1995) BC 318 DB of Madras High Court. It was also held in Dada Silk Mills and others Vs. Indian Overseas Bank in II(1995) BC 426 of Gujarat High Court. Counsel for accused along with written arguments has relied on Raj Kumar Khurana Vs. State of NCT IV(2009) SLT 286, however that is a case where cheque is returned due to "stop payment" which is not applicable in present facts.
17 In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the complainant has been successful in establishing all the ingredients of section 138 Negotiable Instruments Act against the accused in respect of the cheque bearing no. 834609 dt. 15.11.02 beyond the pales of reasonable doubt. Accused is accordingly convicted for the offence u/s 138 Negotiable Instruments Act.
Announced in the open court (Twinkle Wadhwa)
on 19.05.10 Metropolitan Magistrate
Delhi
CC no. 461/1/06/03 10/11
CC no. 461/1/06/03
P.S. Moti Nagar
U/S 138 N.I. Act
19.05.10.
Pr. Complainant in person
Vide separate judgment dictated and announced in the open court, accused stands convicted for the offence u/s 138 N.I. Act.
Case now to come up for arguments on the point of sentence on 28.05.10.
MM : Delhi/19.05.10 CC no. 461/1/06/03 11/11