Delhi District Court
Counsel For Complainant Has Relied Upon ... vs . State & Another, on 18 May, 2013
"IN THE COURT OF SH. DEVENDER KUMAR GARG : MM
(E) :KKD:DELHI"
CC No. : 5903/06
PS : Mandawali
U/s : 138 of NI Act
Unique Case ID No. 02402RO0661312006
Date of Institution : 27.11.06
Date of reserve of order : 10.05.2013
Date of announcement : 18.05.2013
J U D G M E N T
1. Serial No. of the case : 5903/06
2. Name of the Complainant : Sh. M.K. Malhotra, S/o Late Sh. K.L.
Malhotra, Flat No.60, Brothers apartment,
Plot NO.16 I.P. Extension, Patparganj,
Delhi92
3. Date of incident : 25.03.2006
4. Name of accused person : Sh. Subhash Khanna, S/o Sh. R.K. Khanna,
R/o H. No. 2470, Chipiwada, Near Jama
Masjid, Delhi06
5. Offence complained of : U/s 138 of NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order : convicted
8. Date of such Order : 18.05.2013.
CC No. 5903/06 1/14
BRIEF REASONS FOR SUCH DECISION:
1. The case of the complainant as per complaint is that accused approached the complainant for obtaining personal loan and considering the assurance given by him for repayment of loan to the complainant, the complainant agreed to pay a sum of Rs.1,00,000/ to the accused as loan. The complainant gave the said loan to the accused through cheques bearing no. 154840 for amount Rs. 30,000/ which was encashed on 24.02.06, other cheque bearing no. 154838 for amount of Rs.25,000/ encashed on 09.03.06 and through another cheque bearing no. 154844 for sum of Rs.45,000/ given by the complainant to the respondent which was encashed on 23.03.06. All the three cheques drawn on Vijaya Bank, Patparganj Delhi, for a sum of Rs. 1,00,000/ were given by complainant to accused towards loan which were encashed by the accused.
2. As per complaint, towards the return of said loan amount, the accused gave three cheques to complainant bearing no. 442265 dt. 25.03.06 for Rs.25,500/, cheque bearing no. 442266 dt. 20.09.06 for Rs. 50,000/ and cheque bearing no. 442261 dt. 20.09.06 for Rs. 30,000/, all of the cheques drawn at South Indian Bank Ltd. Patparganj, Delhi. The above said amount of Rs.1,05,500/ was towards return of loan amount of Rs.1,00,000/ and of Rs.5500/ were included towards the interest.
3. As per complaint, the complainant presented the above said three cheques which were dishonoured and returned back with remarks of "funds CC No. 5903/06 2/14 insufficient". The above said cheques were returned back vide memo dt. 19.09.06, 22.09.06 and 22.09.06 respectively.
4. As per complaint, accused had failed to pay the amount of dishonoured cheques, the complainant was compelled to issue statutory notice dt. 10.10.06 through registered AD post as well as UPC to accused calling upon him to pay the dues in terms of above stated cheques alongwith interest within period of 15 days from the receipt of statutory notice and said notice was duly served but inspite of that, accused failed to discharge his liability and pay the amount of cheques. Hence this complaint has been filed.
5. Vide order dated 16.12.06, cognizance of offence u/s 138 of Negotiable Instrument Act was taken and accused was summoned by the Ld. Predecessor of this court. On appearance of the accused notice of accusation u/s 251 Cr.P.C. was framed against the accused vide order dated 21.08.10 to which the accused pleaded not guilty and claimed trial.
6. For proving his case the complainant has examined himself as CW1. After that CE was closed and matter was adjourned for statement of accused u/s 313 Cr.P.C. All the incriminating evidence was put to the accused and he stated that he wants to examine witness in his defence but no witness was examined by accused and hence DE was closed.
CC No. 5903/06 3/14
7. I have heard Sh. B.P. Aggarwal, Ld. Counsel for complainant and Sh. Roop Kishore, Ld. LAC for accused and perused the material on record carefully. Ld. Counsel for complainant has relied upon Jaibir & Ors. Vs. State & Another, 142 (2007) DLT 141, Surender Kaur & Ors. Vs. Pritam Singh & Ors., 154 (2008) DLT 598. I have also perused the brief synopsis filed on behalf of complainant.
8. Ld. counsel for accused has contended that accused had taken amount of Rs. 20,000/ from the complainant and he has already paid said amount to complainant and accused had no liability against cheques in question. He has relied upon the judgment of Hon'ble Supreme Court of India in Vijay Vs. Laxman & Another, Crl. Appeal No.261 of 2013 (arising out of SLP (Crl.) 6761/2010, decided on 07.02.2013).
9. On the other hand, Ld. Counsel for complainant has contended that cheques in question were issued by the accused in discharge of his liability. He has further contended that the present matter was also referred to Mediation Centre where the accused had agreed that he will pay Rs. 1,40,000/ in installments to the complainant but he only paid amount of Rs.20,000/ and did not pay the remaining amount. He has further contended that by entering into settlement before mediation, the accused has admitted his liability and he has deliberately not complied the said order. He has further contended that on merits also the complainant has proved his case beyond reasonable doubt CC No. 5903/06 4/14 and on the other hand accused has failed to prove his defence. He has further contended that there is presumption in favour of complainant U/Sec 139 of N.I Act and accused has failed to rebut the said presumption, hence he is liable to be convicted u/s 138 of Negotiable Instruments Act.
10.For deciding present complaint some of the relevant provisions of Negotiable Instruments Act are as under : "Sec 138. Dishonour of cheque for insufficiency, etc., funds in the account. 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 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 be extended to two years or with fine which may extend to twice the amount of the cheque or with both:
Provided that nothing contained in this section shall apply unless : a. The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
CC No. 5903/06 5/14 b. The payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and c. the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, ot the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation : For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Sec. 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, of any debt or other liability.
Section 142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) a. no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
b. such complaint is made within one month of the date on which the cause ofaction arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had CC No. 5903/06 6/14 sufficient cause for not making a complaint within such period] c. no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138".
11.Perusal of the file would show that complainant has examined himself as CW1 and gave his evidence on affidavit Ex.CW1/1. He has deposed in his evidence that accused had approached him for obtaining personal loan and in view of the same he paid him amount of Rs.1,00,000/ through three cheques and towards the return of the said loan amount, the accused had given three cheques in question for total amount of Rs.1,05,500/ in which amount of Rs. 5500/ was included towards the interest. The above said cheques were returned back on the ground of insufficient funds. Original cheque with return memos have been exhibited from Ex.CW1/A to Ex.CW1/F. It is further deposed in the affidavit that statutory notice dt. 10.10.06 was sent to the accused. The copy of notice alongwith original postal receipts and acknowledgment have been exhibited as Ex.CW1/G (Colly.). The complainant has also placed order of Mediation Centre Dt. 01.08.08 Ex.CW1/H on record. He has stated that accused had failed to comply the said order dt. 01.08.08 and offence u/s 138 of NI Act has been proved.
12. Ld. Counsel for accused has contended that the accused was not served with legal notice and he has further stated that complainant has deposed in his cross examination that he does not remember when he sent the notice and he CC No. 5903/06 7/14 further stated that nor he remembered whether any AD card was received back or not. He further stated that complainant further deposed that he did not remember whether accused had received notice or not. On the other hand, Ld. Counsel for complainant has contended that legal notice was sent to the accused and relevant documents are also on record.
13. In Anil Raj's case, II (2006) CCR 31 by referring Raja Kumari's case the Hon'ble High Court of Kerala observed that:
"No doubt Section 138 of the Act does not require that the notice should be given only "by post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have seen served unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
The above mentioned observation has also been reiterated by the Hon'ble Supreme Court in para number 24 of the case titled as K. Bhaskaran Vs. Shankaran Vaidhyanbalan & Another, Criminal Appeal no.1015 of 1999 arising out of SPL (Crl.) No. 146 of 1999"
14.Perusal of the file would show that legal notice Ex.CW1/6 dt. 10.10.06 was CC No. 5903/06 8/14 sent on behalf of complainant vide postal receipt dt. 10.10.06 and registered AD card and receipt of UPC dt. 10.10.06 which are Ex.CW1/G (Colly.) are on record. The address mentioned in the postal receipt and on the registered AD and UPC has not been disputed by the accused during the examination of witnesses. Neither any witness has been examined by accused that he was not residing on the said premises. Further, it is not the case of accused that he was ready to make payment when firstly he got information from the court regarding the present complaint.
15.Hence, taking into consideration the material available on record and the legal position discussed above, the deposition made by complainant regarding ignorance of the fact whether he sent legal notice or not, does not affect the fact that legal notice was actually sent. On the basis of above said material it is proved that complainant had sent legal notice which was received by the accused.
16.Ld. counsel for accused has contended that accused has taken amount of Rs. 20,000/ from the complainant and has already returned the same back to the complainant and there is no due against the accused.
17.Now the question arises whether the accused has rebutted the presumption as drawn u/s 139 of NI Act?
CC No. 5903/06 9/14
18.It has been held by the Hon'ble Supreme Court in "K.N. Beena Vs. Muniappan & Anr. Criminal Appeal No. 1066 of 2001 arising out of SLP (Crl.) no. 969 of 2001 that .............. "Under Sections 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under section 138, the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This court in the case of Hiten P. Dalal Vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view"....................... It has been recently held in Rangappa Vs. Sri Mohan in Criminal Appeal No. 1020 of 2010 [ Arising out of SLP (Crl.) No. 407 of 2006] by the Hon'ble Supreme Court that ............... 14. In the light of these extracts, we are in agreement with the respondent/claimant that the presumption mandated by Sec. 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, it is of course in the nature of CC No. 5903/06 10/14 a rebut table presumption and it is opened to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
19.Perusal of the file would show that the complainant has clearly mentioned in his affidavit that he had made payment of Rs.1,00,000/ through three cheques of different amounts by mentioning the number of cheques and giving full detail of the said cheques but nowhere said fact has been disputed by the accused in cross examination of complainant or otherwise. No witness has been examined by accused that above said cheques were not given to him or said cheques were not encashed in his favour. Perusal of cross examination of CW1 would show that nowhere accused has taken the defence that he had only taken amount of Rs.20,000/ from the complainant or he had already paid the same. Opportunity for leading defence evidence was also given to the accused but despite availing the said opportunities no witness was examined by the accused and ultimately defence evidence was closed.
20.Ld. counsel for accused had contended that complainant was not having licence for money lending and hence the complaint for dishonour of cheque is not maintainable regarding the said loan amount. Perusal of the file would show that it was stated by the complainant that he had given friendly loan to the accused. The accused has not placed on record whether the complainant has also given such loans to other persons for bringing him within the ambit of CC No. 5903/06 11/14 Money Lenders Act. No such material has been placed on record showing that even a single transaction is sufficient for helding the complaint not maintainable and neither such material has been placed on record showing that any other Act is applicable which would dis entitle the complainant to file this complaint.
21.Ld. counsel for accused had also contended that the complainant used to take meals from the hotel of accused and thus he had returned the amount taken from the complainant. Perusal of the file would show that such suggestion was put on behalf of accused to the complainant which was denied by the complainant. Further no such defence was taken by the accused during his examination u/s 313 Cr.P.C. No record has been produced showing how the said alleged amount was repaid and what were details of the same.
22.Further, perusal of the file would show that on 01.08.08 present matter was referred to Mediation Centre at joint request of both parties and same was received back to this court as settled vide order of Mediation Centre dt. 01.08.08. The order was passed in the presence of counsel of accused and the accused had to make payment of Rs.1,40,000/ in six installments. However the accused made payment of Rs.10,000/ on 20.10.08 and another payment of Rs.10,000/ was made on 20.12.08 but after that no payment as per settlement was made by the accused. Thereafter, an application was moved on behalf of complainant for passing appropriate orders on account of CC No. 5903/06 12/14 failure of accused to comply with order dt. 01.08.08 passed by Ld. Mediator in Mediation Cell. The said application was disposed off vide order dt. 02.07.10 with the observation that conduct of the accused which is on record will taken into consideration at the time of final orders if the accused is found guilty after considering the evidence on record and conclusion of trial and thereafter matter was adjourned for consideration on notice/ further proceedings for 23.07.10. Thus taking into consideration all the material available on record, the accused has failed to prove that he had taken a loan of Rs 20,000/ from the complainant and he had returned the same to him.
23.The cheques in question are dated 25..03.2006, 20.09.2006,20.06.2009 and return memo are dated 19.09.2006,22.09.2006 and 22.09.2006. Legal Notice dated 10.10.2006 has been sent on same day and the present complaint has been filed on 24.11.2006. Hence the present complaint is within limitation.
24.The judgments relied upon by the Ld. Counsel for accused are not applicable on the facts of the present case.
25.In view of the above mentioned discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond reasonable doubts. All the ingredients of Sec. 138 of Negotiable Instrument Act have been duly proved on record. On the other hand accused has failed to rebut the presumption and prove his defence on preponderance of CC No. 5903/06 13/14 probabilities. Accordingly, accused is convicted for the offence u/s 138 of Negotiable Instrument Act.
26.Put up for consideration on point of sentence on 24.05.2013. Copy of this order be supplied to the accused free of cost.
Announced in the open court (DEVENDER KR. GARG)
on 18.05.2013 MM/KKD/Delhi
CC No. 5903/06 14/14