Delhi District Court
Swatanter Devi vs Ragib Ahmed Beg on 9 January, 2024
IN THE COURT OF MS. MANSI MALIK,
METROPOLITAN MAGISTRATE-01 /NI ACT/WEST/DELHI
Ct. Case 1511/2018
Ms. Swatantar Devi
W/o Sh. Kuldeep Singh Dabas,
R/o House No. 122B, Extension 1-B,
Nangloi, Delhi .........Complainant
vs.
Sh. Ragib Ahmed Beg
S/o late Iqbal Ahmed Beg
R/o A-Block, 571-572, Camp No. 2,
JJ Colony, Nangloi, New Delhi-110041 ............Accused
Date of institution of case : 08.03.2018
Date of reserving the judgment : 07.11.2023
Date of pronouncement of judgment : 09.01.2024
JUDGMENT
1. S. No. of the Case : 1511/2018 2. Date of institution of the case : 08.03.2018 3. Name of the complainant : Ms. Swatantar Devi 4. Name of the accused : Sh. Ragib Ahmed Beg 5. Offence complained or proved : 138 N.I. Act 6. Plea of Accused : "Not Guilty" 7. Final Order : Conviction 8. Date of Final Order : 09.01.2024 CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 1/15 Digitally signed by MANSI MANSI Date: MALIK MALIK 2024.01.09 16:59:47 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, this Court shall dispose of the present complaint filed by the Complainant against the above-named Accused under Section 138 read with Section 142 of Negotiable Instrument Act, 1881 (hereinafter referred to as N.I. Act) for dishonour of cheque bearing no. 000003 dated 04.01.2018 for Rs.1,00,000/- drawn on Bank of Baroda, Nangloi, Delhi.
2. The brief facts of the case are as follows:-
(a) That the accused was known to the complainant and they had visiting terms with each other since the last 3 years. That the accused had approached the complainant and asked for a friendly loan of Rs.2,00,000/- (two lakhs), for personal purpose and complainant being a kind hearted person acceded to the request of the accused and had given a friendly loan of Rs. 1,00,000/- in January, 2017 and the accused assured the complainant that he would repay the loan within a period of six months.
(b) That the accused issued a cheque in discharge of his legally enforceable liability to the complainant. Details of the cheque are as under:-
Sr. No. Cheque No. Date Amount Drawn on
Bank of Baroda, Nangloi
1. 000003 04.01.2018 1,00,000/-
Branch, Delhi
(c) That the complainant deposited the aforesaid cheque with his banker but the cheque was returned back dishonored vide bank memo dated 10.01.2018 with the remarks "Funds Insufficient".
(d) That on 29.01.2018 the complainant sent legal notice to the Digitally CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. MANSI 2/15 signed by MANSI MALIK MALIK Date:
2024.01.09 17:00:05 +0530 accused and the accused failed to comply with the requirement of the said notice within the stipulated period of 15 days from the date of service of notice.
(e) That the accused has issued the said cheque in discharge of a credit liability knowing fully well that he has no sufficient funds in his bank account and had issued the said cheque with malafide intention to cheat the complainant and thus he has committed an offence U/s. 138 of the Negotiable Instrument Act. Hence, the present complaint has been filed.
3. After taking pre-summoning evidence, the Court took cognizance of the offence under section 138 NI Act and directed issuance of process against accused. In pursuance thereof, accused appeared before the Court and furnished Court Bail.
4. Notice under Section 138 of the Negotiable Instruments Act was framed against the accused on 16.10.2018. In the notice, the accused pleaded not guilty and claimed trial. The accused stated that he does not know the complainant and that he had never seen her. He further stated that he did not take any loan from her and that he had lost 2-3 signed cheques about 4-5 months ago. He further stated that he had filed a complaint with PS Nangloi and he can bring the copy of the complaint and that the complainant has misused the cheque in question. The accused further stated that the cheque in question bears his signatures and that the other particulars were not filled in by him. Further, the accused denied receiving any legal notice from the complainant although he stated that the legal notice bears his correct address.
CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 3/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2024.01.09 17:00:20 +0530
5. In Complainant's Evidence (CE), complainant has examined himself as CW-1 by way of tendering an affidavit of evidence Ex. CW-1/A. The complainant placed reliance on the following documents:-
(a) Ex. CW1/1 is the original cheque bearing no. 000003.
(b) Ex. CW-1/2 is the return memo dated 10.01.2018.
(c) Ex. CW-1/3 is the legal notice dated 29.01.2018.
(d) Ex. CW-1/4 is the postal receipt.
(e) Ex. CW-1/5 is tracking report.
(f) Ex. CW-1/6 is the complaint.
CW-1 was duly cross-examined at length by Ld. counsel for accused.
6. Thereafter, CE was closed vide order dated 03.06.2022. It was followed by recording of the statement of accused u/s 313 Cr.PC. All the incriminating evidence was put to accused to which he pleaded innocence and false implication. It was stated by the accused that he is innocent and he has no legal liability towards the complainant. The accused opted to lead DE.
7. The accused examined one bank witness as DW-1. DW-1/Sh. Arun Gupta, Sr. Branch Manager, Bank of Baroda, Branch Nangloi, Delhi relied upon one document i.e. letter from the bank alongwith the statement of account bearing no. No.41080100006048 in the name of Mr. Ragib Ahmed Beg which is DW-1/1 (colly). DW-1 was duly cross examined by the Ld. counsel for the complainant. Thereafter, DE was closed vide order dated 11.07.2023 and the matter was posted for final arguments.
Digitally CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 4/15 signed by MANSI MANSI MALIK MALIK Date:
2024.01.09 17:00:25 +0530
8. During the course of arguments, it was argued on behalf of the complainant that all the ingredients of the offence under Section 138, NI Act, are fulfilled in the present case. On this basis, the complainant has argued that the presumption under Section 139 read with Section 118 of the NI Act lies in favour of the complainant and the accused has failed to rebut the presumption and raise a probable defence.
9. Per contra; Ld. Counsel for the accused has opposed the arguments rendered on behalf of the complainant and has submitted that no loan was ever taken by the accused from the complainant. It is further submitted that the cheque in question alongwith certain other documents by misplaced/lost by the accused and that the said cheque has been misused by the complainant.
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. Counsel for complainant as well as by Ld. Defence counsel.
11. The question in the present case revolves around whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either Digitally signed by MANSI CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 5/15 MANSI MALIK MALIK Date:
2024.01.09 17:00:31 +0530 because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both Explanation: For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability."
12. Thus, in order to ascertain whether the accused has committed an offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
(b) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above mentioned ingredients are satisfied that the person who has drawn the cheque can be said to have committed an offence u/s 138 NI Act.
CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 6/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2024.01.09 17:00:36 +0530
13. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. 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, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made:
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;..............."
14. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant. It is not necessary for the accused to lead direct evidence to rebut the presumptions. He may do so by showing preponderance of probabilities and that may be by relying upon the circumstances on record.
15. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 7/15 Digitally signed by MANSI Date:
MANSI MALIK MALIK 2024.01.09 17:00:41 +0530 of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is per-ponderances of probabilities. Inference of per- ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
16. The Apex Court also clarified that the standard of proof is not as heavy as that of prosecution, which is to prove the guilt beyond reasonable doubts but the one upon the accused is only mere preponderance of probabilities. The observations made in K. Prakashan vs P. K. Surenderan, (2008) 1 SCC 258 are as follows:
"It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability".
17. Now coming to the factual matrix of the present case, this complaint has been filed by the complainant against accused on the allegations that an amount of Rs. 1,00,000/- is due and payable by the accused to the complainant towards the friendly loan advanced by the complainant to accused. That the accused in discharge of his legally enforceable liability had issued cheque bearing no. 000003 dated 04.01.2018 for Rs.1,00,000/- drawn on Bank of Baroda, Nangloi Branch, Delhi. However, the aforesaid cheque was dishonoured on Digitally CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 8/15 signed by MANSI MANSI MALIK Date:
MALIK 2024.01.09 17:00:47 +0530 presentation. Despite service of legal notice, the accused did not pay the cheque amount to the complainant and thus committed the offence u/s 138 NI Act.
18. The accused has assailed the present complaint and has pleaded that he had not issued the cheque in question to the complainant and that a blank signed cheque which is the cheque in question was lost by him alongwith 2-3 other signed cheques and certain other documents.
He further submits that he has no legal liability towards the complainant. It is observed here that the accused has not denied the signatures on the cheque in the statement recorded under Section 313 CrPC. In such circumstances, the statutory presumption u/s 118 Indian Evidence Act and Section 139 NI Act is raised in favour of the complainant and the complainant has been able to prove that the cheque in question was given by the accused for a debt or liability. The onus of proof thereafter shifts on the accused to rebut the presumption. The accused can rebut this presumption either by bringing out contradictions in the evidence led by the complainant or by leading his own evidence.
19. The sole defence of the accused is that he has not taken any loan from the complainant and that he has not issued the cheque in question to the complainant. It is his case that a blank signed cheque was lost/misplaced him and that it is the same cheque which has been misused by the complainant. The accused in order to establish his defence has summoned a bank witness as DW-1. DW-1/Arun Gupta, Senior Branch Manager, Bank of Baroda, Nangloi, Delhi produced the bank record pertaining to the account maintained by the accused with the bank, which is Ex. DW-1/1(colly). The witness produced a letter Digitally signed CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no.MANSI 9/15 by MANSI MALIK MALIKDate: 2024.01.09 17:00:52 +0530 sent by the accused to the bank dated 15.01.2018 wherein it is stated that the bag of the accused containing his aadhar card, his electricty bill, his blank signed cheque bearing no. 000002 alongwith certain other documents was lost/misplaced by him. In the said letter, the accused instructed the bank to stop payment of the aforesaid cheque so that the same may not be misused. The witness also placed on record the bank account statement of the accused pertaining to account number 41080100006048 from 01.01.2018 to 31.01.2018. A perusal of the said account statement shows that on 10.01.2018, a cheque of the accused which is the cheque in question was returned for the reason "Funds Insufficient" and that on 15.01.2018, the account of the accused was debited with stop payment charges with respect to cheque no. 000002. Further, the witness also produced a letter issued by him being Senior Branch Manager of the bank stating that the bank received a letter for stopping payment of cheque no. 02 dated 15.01.2018 by the accused and that cheque no. 03 was already rejected on 10.01.2018 due to "Funds Insufficient" and that the said fact was confirmed to the accused on 21.01.2020. Therefore, a perusal of the record produced by the bank witness shows that the accused intimated the bank by way of a letter dated 15.01.2018 to stop payment of the cheque bearing no. 000002 which is not the cheque in question as the cheque in question bears the number 000003. Therefore, the letter issued to the bank by the accused is of no importance as it does not pertain to the cheque in question. However, even if it is assumed that inadvertently, the accused mentioned the cheque number as 02 instead of 03 in the letter addressed to the bank, it is pertinent to mention that the cheque in question was already dishonoured due to the reason "Funds Insufficient" on 10.01.2018 whereas as per the bank record the letter for stopping payment of the cheque was received on 15.01.2018 Digitally signed by MANSI CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 10/15 MANSI MALIK MALIK Date:
2024.01.09 17:00:57 +0530 i.e. after the date of dishonour of the cheque. The summoned witness has also stated that the accused again approached the bank on 21.01.2020 alongwith an application to stop payment of the cheque bearing no. 000003 i.e. the cheque in question and that the bank informed the accused that the said cheque had already been dishonoured on 10.01.2018. The accused approached the bank with the application to stop payment of the cheque in question only in the year 2020 i.e. after a delay of more than two years which again has no bearing on the present matter. Therefore, the record produced by the summoned bank witness does not help the case of the accused.
20. The accused has also stated that he filed a lost report with regard to his missing cheque with PS Crime Branch, Delhi bearing LR No.53813/2018 dt. 04.01.2018. However, an examimation of the entire record shows that only a photocopy of the said report is on record and that the lost report has not been proved by the accused in the present matter. The said document does not bear any identification number and no witness was summoned by the accused in order to prove the said document. Therefore, the said document cannot be read in evidence as it has not been proved in accordance with law.
Arguendo, even if it is assumed that the accused has proved the said document in accordance with law, the same will still not help the case of the accused. A scrutiny of the lost report filed by the accused states that the accused lost his blank signed cheque bearing no. 000002 which is again not the number of the cheque for which the present case has been filed. Hence, the lost report filed by the accused, even if assumed to be proved in accordance with law does not support the case of the accused. No other evidence has been led by the accused in order to prove his defence. He has not examined himself as witness CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. MANSI 11/15 Digitally signed by MANSI MALIK MALIK Date:
2024.01.09 17:01:01 +0530 and neither has any material contradiction been elicited during the cross-examination of the complainant as CW-1 which would rebut the presumption raised in favour of the complainant.
21. It is also pertinent to mention here that in the notice u/s 251 Cr.P.C., the accused has stated that he lost 2-3 blank signed cheques about 4-5 months ago, however, in the letter addressed to the bank and the LR filed with PS Crime Branch mention has been made only of one cheque bearing no. 000002. There is no mention of any other blank signed cheque which was lost by the accused in either of the aforementioned documents which again raises a doubt on the case of the accused. Further, the accused has till date not taken any action qua the complainant for misuse of his cheque like a prudent man would take in similar circumstances. Hence, the entire conduct of the accused does not inspire confidence in the version alleged by him.
22. In view of the aforesaid discussion, it is observed that the accused has failed to raise a probable defence through the cross-
examination of the complainant and also that he has not led any evidence himself to raise a probable defence. He has not been able to rebut the presumption that is raised in favour of the complainant with respect to the existence of a legally recoverable debt or liability of Rs. 1,00,000/-. Thus, the first ingredient of Section 138 NI Act has been proved by the complainant.
23. The second ingredient of the offence is that the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that Digitally signed by MANSI MANSI MALIK CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no.MALIK 12/15 Date:
2024.01.09 17:01:07 +0530 account by an agreement made with that bank. Perusal of record shows that complainant has already proved the bank return memo through Ex. CW-1/2 and the accused has not denied his signatures upon the said cheque Ex. CW-1/1 and further, has not assailed the factum of the said cheque being dishonored. Thus, the second ingredient of the offence is also satisfied in the present case.
24. The third ingredient is that the drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money. It is submitted by the Ld. counsel for the accused that the accused has not received the legal notice and hence the present complaint is not maintainable.
25. In view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. The relevant extract of the decision deserves to be quoted in extenso :-
''17. 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, Digitally CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 13/15 signed by MANSI MANSI MALIK MALIK Date:
2024.01.09 17:01:11 +0530 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''.
26. In the present matter, admittedly, the accused has failed to pay the cheque amount within a period of 15 days from the date of his appearance before this court. Therefore, in view of the above stated Judgment passed by Hon'ble Apex Court, the fact of non-service of legal demand notice will not come to aid the accused.
27. Further, the complainant has also placed on record, Ex. CW1/4 i.e. postal receipt and the tracking report Ex. CW1/5 of the legal notice as per which the the item was returned as unclaimed. An examination of the record shows that the accused has admitted that the legal notice bears his correct address in the notice u/s 251 Cr.P.C. as well as in his statement u/s 313 Cr.P.C. In such a scenario, it can CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 14/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2024.01.09 17:01:17 +0530 presumed that the accused deliberately did not claim the legal notice even though it was sent on the correct address. The said presumption has not been displaced on behalf of the accused. Thus, it is presumed that the legal notice was delivered to the accused. Despite the receipt of legal notice, the accused has failed to make the payment to the complainant that he was liable to pay, within 15 days from the date of receipt of notice. Hence, the third ingredient of the offence under Section 138 NI Act also stands proved by the complainant.
28. In view of the aforesaid discussion, this Court is of the view that the contentions of the Ld. Counsel for accused are not sufficient to rebut the presumptions raised in favour of complainant and the same are liable to be rejected.
29. The accused has failed to shake the credibility of CW-1 i.e. the complainant. The defence of accused appears to be an afterthought and same is baseless. The accused in this case has not adduced any evidence to rebut the presumptions raised against him.
30. In the light of above discussion, this court is of view that accused Ragib Ahmad Beg is guilty for the offence punishable u/s 138 N.I. Act and is accordingly convicted for the same. Let the convict be heard on the point of sentence separately.
Digitally signed by MANSI MANSI Date:
MALIK MALIK 2024.01.09 17:01:22 +0530 Announced in open Court (MANSI MALIK) on 09th of January, 2024 Metropolitan Magistrate-01, NI ACT/WEST/DELHI CC No. 1511/2018 Swatanter Devi Vs. Ragib Ahlmed Beg Pg no. 15/15