Delhi District Court
Satyam Finlease Pvt Ltd vs Lalit Kelkar on 24 June, 2014
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IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
Satyam Finlease Pvt Ltd
VS
Lalit Kelkar
CC NO. 940/12
PS: Punjabi Bagh
U/S: 138 N.I. Act
Date of Institution: 07.07.2010
Name of the Complainant Satyam Finlease Pvt Ltd
107A, Shivlok House1
Karampura Commercial
Complex, New Delhi110015
Through its Director
Mr. Sunil Batra.
Name and address of accused Lalit Kelkar
s/o Sh. J.D. Kelkar
Flat No.6C, Lal Quarters
Janta Flats, West Punjabi Bagh
New Delhi10026.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 24.06.2014
Date of Institution of case: 07.07.2010
Date of hearing final arguments:16.05.2014 &
05.06.2014
Date of decision of the case: 24.06.2014
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BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgment, I shall decide the complaint case u/s 138 Negotiable Instruments Act, 1881 (as amended upto date) filed by the complainant.
2. The facts in brief necessary for the disposal of the present case are that the complainant is a Non Banking Financial Institution registered with the Reserve bank of India and are engaged in the business of lending Finance to the persons interested to raise loans under the name and style of complainant no.1 at the address stated above, and enjoys a lot of goodwill and high reputation amongst men of the trade and others and the complainant no.1 is a Non Banking Financial Institution is a private limited company incorporated under the Indian Companies Act, 1956, and Sh. Sunil Batra, complainant no.2 is one of its directors and that the accused approached the complainant and borrowed a sum of Rs. 1,30,000/ from the complainant and executed the necessary documents in favour of the complainant for value consideration towards the repayment of loan. Against the above said loan the accused gave cheque no. 949593 post dated 31.05.2010 amounting to Rs.
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1,30,000/ drawn on Bank of Baroda, Sultanpur Mazra, New Delhi110041. The said cheque was presented by the complainant for encashment through his banker i.e United Commercial Bank Punjabi Bagh, New Delhi on 31.05.2010 but the same was returned dishonoured with remarks "Funds Insufficient" vide return memo dated 02.06.2010. Thereafter the complainant served a legal notice of demand issued on 05.06.2010 through registered mail, by speed post and by Courier at the residential address of the accused demanding payment of the dishonoured cheque within 15 days of the receipt of the notice. 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 complainant led presummoning 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 UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 3 of 21 4 the accused vide order dated 07.07.2010 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. dated 05.10.2010 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before the court. He got exhibited the certified copies of Memorandum and Articles of Association of complainant and certificate of incorporation as Ex. CW1/1 & Ex. CW1/2 and the original of board resolution as Ex.CW1/3, original acknowledgment of loan dated 08.04.2008 as Ex.CW1/4, original receipt of loan dated 08.04.2008 as Ex.CW1/5, original cheque no. 949593 dated 31.05.2010 for Rs. 1,30,000/ as Ex.CW1/6, Original cheque return memo of Bank of Baroda, Sultanpur Mazara, New Delhi110041 as Ex.CW1/7, original notice dated 04.06.2009 as Ex.CW1/8, original speed post receipt dated 05.06.2010 as Ex.CW1/9, original Courier receipt dated 05.06.2010 as Ex.CW1/10, original Proof of delivery of notice through courier as Ex.CW1/11, proof of delivery of notice through speed post as Ex.CW1/13, Power of Attorney as Ex.CW1/12 UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 4 of 21 5 respectively.
5. In his cross examination the complainant stated that complainant is a Non Banking Financial Institution and complainant is a registered company. He further deposed that they have not filed any document regarding permission granted by the RBI for giving loans, however, they have mentioned so in the first paragraph of the complaint and of the affidavit of evidence Ex.CW1/A. He further deposed that they grant loans according to RBI guidelines and he cannot tell the RBI guidelines orally as it is very huge document. He further deposed that the complainant is entitled to take legal action against the loan defaulter according to the RBI guidelines. He further stated that in this case, POA is in his favour and he has filed the original POA on record Ex.CW1/12. He further deposed that the witnesses to the execution of Ex.CW1/12 are Sh. Lalit Verma and Mrs. Vijay Bamzai. He further deposed that this POA has been executed in his favour by Sh. R.T. Batra, Chairman of their company. He further deposed that he does not remember how many loans have been granted to the accused persons and the complainant granted loan to the accused person in UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 5 of 21 6 the year of 2008. He further deposed that it was a personal loan granted to the accused. He further deposed that the accused person has not filled any loan application form and had made only oral request for grant of loan 23 days prior to loan agreement date. He further deposed that he was director of the complainant at that time. He denied the suggestion of ld. Counsel for the accused that accused person had not made any oral request for grant of loan. He further denied the suggestion that the accused had no direct meeting with him in connection to grant of loan. He further deposed that theloan was disbursed to the accused in cash as he needed the loan amount very urgently at that time. He further denied the suggestion that the loan was disbursed to the accused through pay order. He further deposed that the loan was granted to the accused for tenure of two years and the accused had to pay interest on the loan every month and after the expiry of two years, the whole of th loan amount was to be returned by the accused to the complainant. He further deposed that it is mentioned in the promissory note Ex.CW1/13 that the accused has to pay interest of the loan every month and the accused had never paid any amount UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 6 of 21 7 to the complainant after disbursal of the loan amount. He further deposed that they have provided two loans to the accused and there is no written loan agreement. He further stated that they identify the loan of the accused according to the date of loan. He further stated that the present loan is of Rs. 1,30,000/ and another loan is of Rs. 70,000/ and the loan tenure for both the loans was for two years. He further deposed that they are engaged in business of providing loans and they have provided loans to other clients also. He further deposed that the present loan in question of Rs. 1,30,000/ was disbursed in cash as the accused was in urgent need of money and the loan of Rs. 70,000/ was disbursed through cheque. He denied the suggestion that the accused has not been disbursed loan in cash and he further denied the suggestion that the loan of Rs. 70,000/ only was disbursed to the accused through cheque. He further deposed that the rate of interest on the loans of the accused was 24% per annum and the accused has not paid even a single installment to the complainant so there was no need of filing any statement of account of the accused on record. He further deposed that the monthly installment of the accused was of Rs.
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2600/ qua the present loan account in question and he further deposed that it is correct that Rs. 2600/ was interest amount which accrued on the principal amount on each month. He further deposed that the complainant has been granted licence by RBI for carrying business of providing loans. He further deposed that the complainant can charge 24% per annum rate of interest on loans as per RBI guidelines. He further stated that it is correct that they have not sent any written demand notice to the accused except the present legal demand notice of the cheque in question, however, they have made several phone calls to the accused regarding the same. He further denied the suggestion that accused was regularly making payment of Rs. 2600/ per month, therefore, they have not sent any written demand notice to the accused. He further deposed that document Ex.CW1/4 was signed by the accused on 08.04.2008 and the particulars regarding cheque filled up on Ex.CW1/4 were filled up in hand writing because the accused filled up the cheque after few minutes of preparation of Ex.CW1/4. He further stated that the cheque in his possession at the time of preparation of document Ex.CW1/4. He further deposed that the accused was in UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 8 of 21 9 great hurry so particulars of the cheque were not filled up in the cheque through computer writing. He denied the suggestion that the particulars of the cheque in question filled up in hand writing in Ex.CW1/4 have been filled up by the complainant later. He further deposed that he does not recollect by whom the particulars of the cheque have been filled up in document Ex.CW1/4 and the witnesses to the document Ex.CW1/4 are the employees of the complainant. He further denied the suggestion that witnesses have signed the document Ex.CW1/4 later on and not on the date mentioned on the document i.e. 08.04.2008. He further deposed that it is written in the document Ex.CW1/4 that the accused has given cheque in question towards the repayment of the above loan amount including interest. He further stated that it is correct that it is also mentioned in the document Ex.CW1/5 that the accused promised to pay on demand the amount of Rs. 1,30,000/ towards the repayment of loan amount including interest to complainant company. He further denied the suggestion that Ex.CW1/4 to Ex.CW1/6 and Ex.CW1/13 were procured in blank from the accused and all the particulars in these documents except signatures have UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 9 of 21 10 been filled by the complainant. He further deposed that he does not remember whether the complainant has granted any loan to the family members of the accused and he further does not remember whether the complainant has granted a loan of Rs. 1,00,000/ to the mother of the accused namely Savitri Devi and that the loan was disbursed through cheque bearing no. 931983 dated 12.09.2007. He further deposed that they cannot file any document as to transaction related to the loan of Savitri Devi as that is not relevant to the present matter. He further deposed that he does not have any other document to prove disbursal of loan of Rs. 1,30,000/ as they have already filed all the documents related to the transaction on record.
6. 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 wherein he stated that he had issued the cheque in question as security cheque but the same were blank and was issued for security purpose. He admitted that cheque in question Ex. CW1/6 got dishonoured vide return memo Ex. CW1/7 with remarks "insufficient funds". He further stated that UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 10 of 21 11 he did not receive the legal notice and stated that the address is correct and he has been living at the given address since 2006. He wished to lead evidence in his defence. And thereafter DE was lead by the accused.
7. However, no DE was led by the accused and his counsel submitted that accused does not wish to lead any defence evidence and on his submissions DE was closed on 16.05.2014. Thereafter final arguments were heard in this case.
8. 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 days from the receipt of information by him from the UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 11 of 21 12 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.
9. 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 in question in his statement u/s 313 Cr.P.C. From the facts on record and after due admission of the accused that he issued the cheque 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 the accused.
10. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
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In his statement u/s 313 Cr.P.C accused himself admitted that he had issued the cheque to the complainant but the same was issued for security purpose.
Also 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.
11. 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.
12. 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 UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 13 of 21 14 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 cheque given was security cheque 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."
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Therefore, with the aforesaid discussion it stands duly proved that the accused has issued cheque Ex. CW1/6 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
13. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheque in question which is Ex. CW1/6 is dated 31.05.2010 which got dishonoured vide cheque returning memo which is CW1/7 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.
14. DISHONOUR OF CHEQUE IN QUESTION In the instant case, the cheque returning memo which is Ex. CW1/7 is lying with the record of the case file. On perusal of the same it is revealed that the cheque returning memo is dated 02.06.2010 and the same was issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'INSUFFICIENT FUNDS'. Accordingly, it stands duly proved that when the cheque in question which Ex. CW1/6 was presented for encashment, the same was dishonoured vide cheque returning UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 15 of 21 16 memo which is Ex. CW1/7 with the remarks 'INSUFFICIENT FUNDS'.
15. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, accused has admitted in his statement u/s 313 Cr.P.C. that he received the legal demand notice from the complainant.
16. 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 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.
17. I have heard the final arguments addressed by Ld. Counsels for UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 16 of 21 17 the parties and have also carefully perused the entire record which include judgments filed by Ld. Counsel for the accused.
18. With respect to the argument raised on behalf of accused by his Counsel that the loan which was provided by the complainant to the accused was in contravention of RBI guidelines, to this it is observed that no evidence whatsoever has been placed by the accused to substantiate the said contention and as per record, the complainant is a Non Banking Financial Corporation who had filed his MOA & AOA, wherein it is mentioned that the complainant is a company incorporated under the companies Act and as per object of the company it is authorised to provide loans to the persons and the complainant has also filed Ex.CW1/14 which is a certificate of resolution with the RBI for Non Banking Financial Institution for carrying on business for Non Banking Financial Institutions.
19. With respect to the another contention raised by Ld. Counsel for the accused that complainant has not filed any document showing his authorisation from the RBI, to this it is observed that in a connected case, complainant has filed Ex.CW1/14 which is certificate of resolution of the complainant with RBI for carrying UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 17 of 21 18 out business of Non Banking Financial Institution and as such same argument is devoid of any merits and the same is accordingly dismissed.
20. With respect to the another contention raised by Ld. Counsel for the accused that POA ExCW1/3 does not bear the signature of AR, to this it is observed that perusal of Ex.CW1/3 reveals that AR is also the director of the complainant and vide same resolution, he was authorised to institute criminal proceedings against accused by the chairman and the same documents were duly signed by the chairman and accordingly, Mr. Sunil Batra has been duly authorised by way of said resolution and the contention of the Ld. Counsel for the accused is dismissed.
21. With respect to another contention of Ld. Counsel for the accused that no loan account statement was filed by the complainant, to this it is observed that the present complaint is instituted on the basis of promissory note executed between the complainant and the accused and the receipt of the amount taken by the accused by way of promissory note has also been filed duly signed by the accused same is Ex.CW1/5 and as such the UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 18 of 21 19 documents required to be produced by the complainant are complete and as such no requirement of loan account of the accused by the complainant exists and accordingly the same argument is dismissed.
22. With respect to the another contention raised by Ld. Counsel for the accused that Ex.CW1/4 did not mention issue of post dated cheque by the accused to the complainant, to this it is observed that Ex.CW1/4 is a promissory note and a receipt executed by the accused himself and it is he who is required to show that at the time of execution of documents when he gave post dated cheque to the complainant why has he not made mention of the said cheque in Ex.CW1/4 and accordingly, the arguments raised by Ld. Counsel for the accused appears to be irrelevant and accordingly dismissed.
23. With respect to the another contention raised by Ld. Counsel for the accused that complainant did not fill the details in the cheque, to this it is observed that accused admitted his signatures on the said cheque before the Court and as such when a person gives a cheque duly signed to another person he gives implied authority to him to fill the contents and also accused could not produce any UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 19 of 21 20 evidence whatsoever to show that he has not filled the contents and accordingly, the same argument is also dismissed to be vague and irrelevant.
24. Even if the accused alleged that the amount and figure are filled by some other person, the same is of no use as he gave implied authority to the person whom he gave the signed cheque.
25. All the contentions of Ld. Counsel for the accused are dealt with.
26. In his statement u/s 313 Cr.P.C. the accused accepted the fact of loan from the complainant for Rs. 1,30,000/ when he was put question to this effect. Accused further admitted to have issued blank signed cheque in reply of further question. Accused admitted the dishonourment of cheque Ex.CW1/6 for reasons "Funds Insufficient" on 02.06.2010. Accused admitted the address mentioned on the legal demand notice from the complainant. He further stated before the Court in his statement that he wishes to settle the matter with the complainant and he is making efforts for the same.
27. In order to bring home the conviction of the accused, the UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 20 of 21 21 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.
Conclusion In view of the aforesaid discussion, it appears from the facts that as the accused executed the promissory note for the amount of Rs. 1,30,000/ and also receipt for the same amount which are Ex.CW1/4 and separate receipt of the said amount Ex.CW1/5 and for repayment of his loan he issued a cheque Ex.CW1/6 which got dishonoured vide memo Ex.CW1/7. Accused has failed to make payment legally enforceable debt from the complainant and accordingly, accused stands convicted for 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 this 24th day of June, 2014 MM : Dwarka : Delhi UID-024R0048932011 Satyam Finlease Pvt Ltd v/s Lalit Kelkar CC No. 940/12 21 of 21