Delhi District Court
L.D. Gomber vs . Surekha Sharma Cc No.81/10 on 7 May, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-01,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
07.05.2014
L.D. Gomber Vs. Surekha Sharma CC No.81/10
JUDGMENT
(Brief reasons for decision as required under section-264 Cr.PC.) Having taken a defence that the cheque in question was lost, the accused has failed to substantiate her claim. The only document in this respect produced by the accused is a photo copy of a purported complaint lodged by the accused with the police station. I am of the view that a document is required to be proved in the manner provided in the Evidence Act. The document is a photo copy and has been marked as Mark-A. The accused has not examined any official from the police station to establish her complaint lodged with the police station. Therefore the document Mark-A can not be relied upon.
1.1. However, I have scrutinized the document Mark-A. The document shows an stamp of police station but even this stamp is not in original. Clearly, the document is a copy of copy. Be that as it may. This document does not bear any DD entry number of the police station which is further creating doubts about its genuineness. If a person makes a report to police station, the concerned police station is duty bound to enter the same in prescribed register. Therefore, there must be DD entry number. It can not happen that official work in the police station is done only by putting stamp on the copy to be retained by any complainant.
1.2. There is no other proof to establish that the accused has lost her cheques. What is more significant is the fact that in the examination in chief the accused has claimed that along with the cheques some documents of her two properties were also lost. It is hard to believe that any person will not initiate any appropriate proceedings if his or her documents relating to properties are lost. Property documents is a very valuable thing and every person will definitely sought a declaration so that lost property documents could not be misused by anyone else. Even the L.D. Gomber Vs. Surekha Sharma CC No.81/10 1 accused has claimed to have lost stamp papers. Stamp papers can always be misused by any person and therefore a prudent will always take necessary steps for certain declaration in respect of the stamp papers to avoid any future problem by misuse of such stamp papers.
1.3. Even if we believe that the accused had approached the police station with the complaint mark A, the same does not justify the standard of common prudent person. She only approached the police station, given a written complaint, received a copy of complaint only with stamp of police station and thereafter did not follow her complaint. This cannot be believed as no prudent person will act in this manner when his or her several cheques, stamp papers and property documents are lost. In such circumstances I am not inclined to believe the story of the accused.
2. Now coming to the story projected by the complainant. Cheque was received by the complainant in respect of part liability of a business transaction bill number 50858. Though not mentioned in the complaint, it is contention of the complainant that accused had purchased certain cloths from him for a sum of Rs. 7100/- , out of which Rs. 200/- was paid in cash by the accused and for rest of the amount present cheque was issued by the accused.
3. Procedural steps as laid down by Hon'ble High Court of Delhi in Rajesh Agarwal v State & Another 171(2010) DLT 51 have been followed. The accused cross examined the complainant L.D Gomber and examine herself in defence.
4. A bare perusal of cross examination of complainant goes to show that accused has not been able to impeach the credit of the complainant viz a viz existence of liability. I am of the considered view that mentioning or not mentioning of certain facts in the notice, complaint or affidavit cannot be treated as fatal to the entire story of the complainant as long as he is able to explain the position in the cross examination. The complainant in his cross examination has been able to explain as to how transaction occurred with the accused and on this count there is nothing in the cross examination to discredit the complainant. Even mandatory provisions of law will be available to the complainant to establish the liability.
L.D. Gomber Vs. Surekha Sharma CC No.81/10 24.1. Minor variations or inconsistency in the complainant's version cannot entitle an accused to claim acquittal. A three judges bench of Hon'ble Supreme Court in Rangappa vs S. Mohan (2010) 11 SCC 441) has held that:
"As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction- expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
4.2. As far as the bill No. 50858 is concerned, the complainant has confronted the carbon copy of the bill to the accused during her cross examination. The copy of such carbon copy of the bill was exhibited as Ex. DW1/CX1. Needless to emphasis that it is a normal practice for any shopkeeper to give original bill to the customer and to retain copy/ carbon copy thereof with them. I therefore hold that complainant was fully entitle to confront the carbon copy of the bill to the accused during her cross examination. It is clarified copy of such carbon copy was taken on record as Ex. DW 1/CX1 and original carbon copy was seen and returned to the complainant as appearing from the cross examination of the accused dated 29.08.2012.
4.3. It will be beneficial to be note the answer given the by accused in respect to the document Ex. DW1/CX1. The relevant portion from the cross examination of the accused reads as under :
"I cannot say anything in this regard. (Vol. As I stated above, my Cheque Book was not with me and the Bill Book pertains to the complainant who can write anything on the same."
4.4. The above extract clearly shows that the accused has not denied the genuineness of the bill Ex. DW1/CX1 but has avoided this document by saying that complainant could write L.D. Gomber Vs. Surekha Sharma CC No.81/10 3 anything on his own. A vague reply cannot justify anything. It is hard to believe that a shopkeeper will prepare any forged bill or commit forgery/cheating for a meagre sum of Rs. 6900/-.
5. In view of the above discussion I hold that there was liability to the amount mentioned in the cheque on the part of the accused towards the complainant which was required to be discharged.
6. Now, coming to the one more defence of the accused i.e cheque does not bear her signature. I am of the considered view that this defence has no foundation whatsoever. Firstly, the bank has not raised any objection regarding signature(s) on the cheque in question and the reason for dishonour is "exceeds arrangements" which does not include dishonour due to different signatures. Secondly, the story of lost cheque itself is not believable. During her cross examination, the accused has made an interesting statement which runs as under :
"I do not remember that how many cheques were in my bag. However, I remember about 10 cheques were signed and I do not remember how many cheques were unsigned."
6.1. If several cheques were lost and all the cheques were in a bag, in a natural process if anyone find the bag, he will have the possession of all the cheques. If such person wants to misuse a cheque out of all the cheques available in bag, it would be hard to believe that such person will not use a signed cheque but will use unsigned cheque by forging the signature of drawer and that to at two places on the same cheque. This can't be believe.
6.2. Even further, it would hard to comprehend as to how a person finding a lost cheque can be aware of the name of bank account holder, signature of such bank account holder and even addresses of such bank account holder.
6.3. Then as a passing note, one more condition may also be considered. If a person finds a L.D. Gomber Vs. Surekha Sharma CC No.81/10 4 lost blank cheque, why he will fill a meager amount of Rs.69,00/- in the cheque. Such person can definitely fill any amount in the cheque if he is going to risk forgery and cheating in respect of the cheque.
6.4. Story of lost cheque and non-signing is clearly un-believable.
7. As such I hold that cheque bears the signatures of accused Surekha Sharma. Once we arrive at this finding, the mandatory presumptions of law will arise in favour of the complainant in respect of the liability. A three judges bench of Hon'ble Supreme Court in Rangappa vs S. Mohan (2010) 11 SCC 441) has held that:-
"In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
8. So far as the defence i.e columns of the cheque were not filled in by the accused is concerned, I am of the view that no law requires that all the columns must be filled in by the drawer/maker himself. If signature on the cheque is found to be of the accused, the same will suffice the matter. Concept of blank signed cheque is virtually immaterial in view of several judgments of Hon'ble High Court of Delhi viz. Ravi Chopra vs State And Anr. 2008(2) JCC (NI) 169, VIJENDER SINGH vs M/s EICHER MOTORS LIMITED & ANR. CRL. M.C. No. 1454/2011 decided on 05.05.2011, Tarun Gautam vs State Crl M C No.529/2012 decided on 13.02.2012 and Manoj Sharma vs Anil Aggarwal CRL.M.C. 1325/2012 decided on 20.04.2012.
9. So far as non service of legal demand notice is concerned I am of the view that, complainant has been able to connect the accused to the address mentioned in the legal demand notice and therefore, mandatory presumption of law available U/s 27 General Clauses Act, will apply and the deemed service of notice has to be accepted. Needless to emphasis that if any accused wants to contend that she or he has not received the legal demand notice, such accused is at liberty to make the payment of cheque within 15 days from the service of summons as held by L.D. Gomber Vs. Surekha Sharma CC No.81/10 5 three judges bench of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 wherein it has been held as under :-
"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 the Act, make payment of the cheque amount and submit 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 along with 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."
10. In such circumstances, it can be safely believe that the complainant has been able to establish his story and the accused has failed to establish her stand.
11. However, a further legal contention has been raised by the counsel for the accused that the complainant L.D. Gomber has not shown any proof to link him to the payee of the cheque i.e. proprietorship concern namely M/s Cheap Saree Printers and therefore he cannot maintain the present complaint. I agree with the ld counsel to the extent that if any complainant fails to connect himself with the payee of cheque in case of proprietorship concern, he cannot maintain the complaint. This has already been held by the Hon'ble Supreme Court in Milind Shripad Chandurkar vs Kalim M Khan (2011) 4 SCC 275. However, in the present case the complainant has been able to show that he is the proprietor of M/s Cheap Saree Printers. Availability of cheque (Ex. CW1/B) and carbon copy of the bill (Ex. DW1/CX1) in possession of complainant L.D. Gomber itself is showing that he is the proprietor of M/s Cheap Saree Printer. Therefore, this contention of ld counsel for the accused is rejected.
12. In view of the above discussion, I consider that the judgments relied upon by the defence L.D. Gomber Vs. Surekha Sharma CC No.81/10 6 are not applicable to the present factual position and I find it futile to deal with each and every judgment cited by the parties. However, I must note that every party while citing any judgment should be careful to correctly indicate the judgment. In the written arguments, the defence has cited a judgment in Nayagam Lourd Prakash vs Standard Charted Bank (AP) 2001 DCR 342 indicating that the judgment belongs to Hon'ble Delhi High Court whereas the judgment in reality was pronounced by the Hon'ble Andhra Pradesh High Court. Be that as it may.
13. Having heard both the sides and having gone through the record, I am of the view that the accused has failed to rebut the mandatory presumptions of law and also failed to controvert the story of the complainant or to establish her own story of lost cheque. As such, a finding of guilt is required to be returned against the accused.
14. Accused Surekha Sharma is convicted for the offence punishable under Section-138 NI Act in the present complaint case.
15. Both the parties to be heard on the point of sentence.
16. For the sake of clarity, be it noted that though the complaint has filed copies of cetain documents with his application u/s-311 Cr.PC and also with his written statement, the same has not been looked into by the court. This court rather deprecates such practice on the part of any litigant in filing copies of documents at such stages of the proceedings.
17. A copy of this order be placed on the official website of the district courts.
(RAKESH KUMAR SINGH) MM-(NI Act)-Central-01/THC/Delhi 07.05.2014 L.D. Gomber Vs. Surekha Sharma CC No.81/10 7