Delhi District Court
Pappu Singh vs . Dildar Singh Cc No. 13282/16 Page No. 1 ... on 12 December, 2019
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-017665-2018
CC No. 13282/18
Pappu Singh
S/o Sh. Babu Singh
R/o 16C, Tilak Vihar,
New Delhi-110018
............Complainant
Versus
Dildar Singh
S/o Sh. Laxman Singh,
R/o B-55, Uday Vihar,
Nilothi Extension
New Delhi-110041
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 19.04.2018
(4) Date of conclusion of arguments: 05.12.2019
(5) Date of Final Order : 12.12.2019
(6) Final Order : Convicted
Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 1 of 12
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he and the accused are known to each other and that the complainant advanced friendly loan of an amount of Rs. 1,25,000/- to the accused. The accused in discharge of his loan liability gave one cheque of Rs. 1,25,000/- i.e. cheque in question bearing no. 870927 dated 19.12.2017 drawn on Punjab & Sind Bank, Paschim Vihar, New Delhi to complainant towards repayment of loan, with an assurance of its encashment. After due date of cheque in question, the complainant presented the cheque in his account maintained at State Bank of India, Keshopur, Vikaspuri, New Delhi, which was returned with the remarks "Funds Insufficient" vide bank return memo dated 15.02.2018. Thereafter, complainant served a legal notice dated 07.03.2018 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record, original cheque of Rs. 1,25,000/- i.e. cheque in question bearing no. 870927 dated 19.12.2017 drawn on Punjab & Sind Bank, Paschim Vihar, New Delhi as Ex. CW- 1/A, cheque returning memo dated 15.02.2018 as Ex. CW-1/B, legal demand notice dated 07.03.2018 as Ex. CW-1/C4, receipts of speed post as Ex. CW-1/D and tracking reports as Ex. CW-1/E. Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 2 of 12
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 01.11.2018 to which he pleaded not guilty and claimed trial. He admitted his signature on the cheque in question, however denied filling in any of the remaining details. He stated that he had not taken any loan from complainant and did not know the complainant. He gave cheque in question as blank signed security cheque to one Santosh Singh for committee business. The said blank cheque has been misused by complainant. He denied receipt of legal notice.
5. The accused moved an application to cross-examine the complainant. Complainant as CW-1 was duly cross examined by the accused. The complainant also examined one Santok Singh as CW-2. CW-2 was also cross- examined by Ld. counsel for accused. No other witness was produced by the complainant and he closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice U/s 251 Cr.P.C.
6. Accused preferred to lead evidence in his defence and had examined himself as DW-1. He also examined one Kuldeep Singh as DW-2. Both the witnesses were cross-examined by counsel for complainant. The accused did not examine any other witness and vide his statement, defence evidence was closed.
7. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that accused never gave reply to the legal demand notice. He also argued that Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 3 of 12 accused never filed a complaint to police or to his bank regarding misuse of cheque in question. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
8. Per contra, on behalf of accused, Ld. Counsel reiterated the submissions made by him in his plea of defence at the time of framing of notice under Section 251 Cr.P.C, in his statement under Section 313 Cr.P.C. and in defence evidence. He argued that the cheque was given to Santok Singh which was misused by complainant who was relative of Santok Singh. He argued that there was material inconsistencies in the testimonies of CW-1 and CW-2. He also argued that there was no mention as to the date of the loan in the complaint. He argued that complainant failed to disclose sufficient sources of funds to advance the loan. He also argued that complainant in his cross examination himself admitted that the cheque was given as blank signed cheque to him. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
9. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
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 accused issued a cheque on account maintained by him with a bank.
2. the said cheque had 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 Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 4 of 12 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.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: 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 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".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 5 of 12 for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C. He did not deny his signature on the cheque either in cross-examination of complainant, or his statement U/s 313 Cr.P.C and also in defence evidence. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"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 received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
14. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 6 of 12 had advanced loan of Rs. 1,25,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record. CW-2 i.e. Santok Singh also corroborated his version stating that the loan was asked for and advanced in his presence. He also stated that cheque in question was given at time of loan with understanding that in case the accused is not able to repay the loan, complainant can present the same in bank.
15. The principle defence taken by the accused as brought out from his statement U/s 313 Cr.P.C and his examination in chief as DW-1, is that he had not taken any loan from complainant and had not given the cheque to him. He had participated in a committee run by Santok Singh i.e. CW-2 and gave the cheque in question to him as a blank signed security cheque. He came to know the complainant only through Santok Singh as he was his relative. The complainant had misused the cheque in question in connivance with Santok Singh. DW-2 Kuldeep Singh also supported version of accused, stating that he too participated in committee of Santok Singh and cheque in question was given by accused to Santok Singh in his presence as blank signed security cheque. He also stated that complainant also participated in the committee.
16. However, perusal of evidence shows that said version of accused is not supported by any material on record. The accused in his cross examination as DW-1 admitted that no written agreement or affidavit was executed when he gave the cheque to Santok Singh. Furthermore, no document of the alleged committee for which cheque was given was produced by the accused or DW-2 to support his case. Though it is version of accused that complainant and Santok Singh misused the cheque in question, it is not the case of accused that he filed any complaint or took any legal action against them for wrongful retention or misuse of his cheque. In light of the above, this version of accused, is not credible.
17. Ld. Counsel for accused also argued that complainant in his cross- examination himself admitted that cheque in question was given as a blank signed cheque by the accused, whereas there is no mention of the same in the Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 7 of 12 complaint. It was argued that this casts doubt on case of complainant. However this argument is not tenable. Mere omission to state in complaint that cheque was given as blank signed cheque, is not sufficient to vitiate the case of complainant. Even if for the sake of argument, it is considered that the accused gave a blank signed cheque to the complainant, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
18. Ld. Counsel for accused also argued that no written document of the loan was executed and the exact date of advancing loan was not mentioned in the complaint or evidence affidavit. It was argued that same casts doubt on case of complainant. It was also argued that complainant did not have the requisite sources to advance loan to accused. Reliance has been placed on cross- examination of complainant wherein he disclosed his monthly income as Rs. 25,000/-.Ld. Counsel for accused argued that same casts doubt on capacity of Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 8 of 12 complainant to advance loan.
19. However, these arguments of Ld. Counsel for accused are also devoid of any merit, as perusal of the evidence shows that though complainant stated that his monthly income is Rs. 25,000/-, however he also stated that he did not contribute anything as such to the family expenditure. Though he stated that he earlier used to pay Rs. 12,000/- as installments for finance of his vehicle, but now all installments had been paid. The complainant was not cross-examined as to what was the interval of installments i.e. monthly or otherwise. He was also not cross-examined as to time period when he was paying installments and whether he was paying the same at the time of the loan in question. Though complainant stated that he did not pay income tax, however he was not cross-examined on the aspect as to whether he filed ITR. Thus in absence of any cross-examination on these material aspects, doubt cannot be cast on the financial capacity of complainant to advance the loan.
20. Furthermore, accused has failed to substantiate his own case at trial. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
In the present case also the defence taken by the accused is that he had given the cheque to Santok Singh for committee. However he has failed to produce any material in support of his plea of defence.
21. Ld. Counsel for accused also argued that CW-2 in his cross-examination Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 9 of 12 stated that the loan was advanced in December 2017 and was repayable in one year. CW-2 also stated that it was understood between the parties that if payment is not made within one year, complainant could put the date on the cheque in question and present it in bank. CW-2 further expressed his inability to state anything as to the fact that the date in cheque in question should have been of November or December 2018, i.e. one year after the loan was given in December 2017. CW-2 also saw the cheque in question and admitted that date in cheque in question was not of November or December 2018. Ld. Counsel for accused thus argued that the date on cheque in question was in fact 19.12.2017 whereas as per version of CW-2, the date should have been of November or December 2018. It was argued that this inconsistency casts doubt on case of complainant.
22. This argument of Ld. Counsel for accused does bring out an inconsistency in the case of complainant. However, as far as this testimony of CW-2 regarding loan being given in December 2017 for period of one year is concerned, the same is a minor inconsistency which can be attributed to lapse of memory of witness and does not go to the root of the matter. It is important to note that CW-2 corroborated the complainant in all other material particulars such as handing over of cheque as blank signed cheque with liberty to complainant to fill in the details of the same. It is also pertinent to note that the complainant was not cross-examined at all on this aspect of the date, month or year of loan or the period of loan or as to when the cheque was allegedly given. Thus in light of these facts and circumstances, the testimony of CW-2 cannot be said to be a major inconsistency which is sufficient to rebut the statutory presumptions.
23. The accused has also denied receipt of legal demand notice under section 138 of the Act. However, it is worth noting that the address of the accused as mentioned in legal demand notice is B-55, Uday Vihar, Chander Vihar, Nilothi Extension, New Delhi-41, which is the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C, testimony as DW-1 and his bail bonds. Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 10 of 12 notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
24. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
25. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 11 of 12 presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
26. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
27. Let the convict be heard on quantum of sentence.
28. Copy of Judgment be supplied to the convict free of cost.
Digitally signed MRIDUL by MRIDUL
GUPTA
GUPTA Date: 2019.12.12
15:02:59 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 12th DECEMBER 2019 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Pappu Singh vs. Dildar Singh CC No. 13282/16 Page no. 12 of 12