Delhi District Court
3. In T. Vasanthakumar vs . Vijayakumari (Crl. Appeal No. 728 Of ... on 29 November, 2018
IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS: SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a) Serial No. of the case : 46049/16
b) Date of the commission of the offence : 16.01.2016
c) Name of the Complainant : Sh. Ram Murti Singh
d) Name of Accused persons and
their parentage and residence : Biru S/o Late Sh. Chhote Lal
R/o 134/5, Gali No. 3,
Trilok Puri, Delhi
e) Offence complained of : Dishonouring of cheque for
the reason "Fund Insufficient".
f) Plea of the Accused and
his examination (if any) :Not guilty because blank signed
security cheque was issued and
only Rs. 50,000/ was taken from
the complainant.
g) Final Order : Held guilty. Convicted.
h) Order reserved on : 28.11.2018
i) Order pronounced on : 29.11.2018
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Brief reasons for decision:
1. Briefly stated, the relevant facts of the case of the complainant as
reflected in his complaint are that the accused and complainant were having very
good relation and accused approached complainant on 21.11.2015 for a sum of Rs.
5,00,000/ in cash for 15 days as his wife was seriously ill. Complainant had
withdrawn Rs. 4,00,000/ from his bank account in Dena Bank at Patparganj, Delhi
on 21.11.2015 and also arranged Rs. 1,00,000/ from his home and finally he had
given Rs. 5,00,000/ as personal loan to the accused on 21.11.2015. It is case of the
complainant that after 15 days from 21.11.2015, he demanded said loan from the
accused and accused expressed his inability to repay the said amount in cash and
requested the complainant to take payment through cheque. It is further case of
complainant that on 17.12.2015, the accused had issued cheque in question bearing
no. 866561 dated 17.12.2015 for sum of Rs. 5,00,000/ drawn on SBI, Mayur Vihar,
Delhi Ex. CW 1/B for discharge of said debt. It is also stated by the complainant
that aforesaid cheque in question returned unpaid by the bank of accused vide
cheque return memo dated 21.12.2015 with remark 'Funds Insufficient' Ex. CW1/C.
Thereafter, the complainant had sent a legal demand notice dt. 2812.2015 Ex.
CW1/B through his counsel and accused failed to pay the demanded cheque amount
within stipulated time after receiving said demand notice. Thereafter, complainant
has filed the present written complaint case u/s 138 r/w 142 of the Negotiable
Instruments Act, 1881 (in short NI Act) on 15.01.2016.
2. Notice of accusation u/s 251 Cr.PC was served upon the accused on
30.08.2016 and pleas of defence of accused persons were also recorded on same
day. Thereafter, complainant Ram Murti Singh was examined and cross examined
for proving his case. Statement of accused persons u/s 313 Cr.P.C. also recorded on
30.08.2018. However, accused did not lead any defence evidence. Finally, Ld.
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Counsel for complainant and accused themselves had made respective final oral
submissions.
3. In T. Vasanthakumar vs. Vijayakumari (Crl. Appeal No. 728 of 2015),
the Hon'ble Apex Court of the land, while dealing with presumptions u/s 139 of NI
Act, observed as under:
"There has been some controversy before us with respect to
Section 139 of Negotiable Instruments Act as to whether
complainant has to prove existence of a legally enforceable debt
before the presumption under Section 139 of the Negotiable
Instruments Act starts operating and burden shifts to the accused.
Section 139 reads as follows:
"139. Presumption in favour of the 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."
9. This Court has held in its three judge bench judgment in
Rangappa v. Sri Mohan (2010) 11 SCC 441:
"The presumption mandated by Section 139
includes a presumption that there exists a
legally enforceable debt or liability. This is of
course in the nature of a rebuttable
presumption and it is open to the accused to
raise a defence wherein the existence of a
legally enforceable debt or liability can be
contested. However, there can be no doubt that
there is an initial presumption which favours
the respondent complainant."
10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden 3/9 was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability.
4. Keeping in view of above mentioned settled legal proposition and peculiarity of hypertechnical offence u/s 138 of NI Act and legislative intent behind the same to curb the menace of dishonouring of cheques by unscrupulous drawer for smooth functioning of business activities, the court has to appreciate the material on the record. In instant case the accused Biru admitted that he had signed cheque in question and he had given blank signed security cheque in question to the complainant for repayment of loan of Rs. 50,000/ taken from the complainant. Accused also admitted that he had received the legal demand notice of the complainant but he did not reply to the same. In these circumstance, presumption u/s 139 of NI Act would operate against the accused, who has to rebut the same by leading cogent and reliable evidence or by exposing material contradiction in the case of complainant amounting to reasonable doubt by way of crossexamination of complainant & his witness.
5. Accused pleaded that he had not filled the contents as appearing on the body of cheque in question. Even blank cheque could be legitimately filled by the holder of the same and same can be presented for encashment. Hon'ble Delhi High Court in a case titled as Ravi Chopra vs State And Anr. dt. 13 March, 2008 observed as under: "18. Section 20 NI Act talks of "inchoate stamped instruments"
and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable 4/9 instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp."
Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course".
5/96. Accused Biru, also pleaded that he had handed over the cheque in question to the complainant as security for repayment of loan of Rs. 50,000/ taken from the complainant. However, even security cheque becomes enforcible once liability becomes due and quantifiable at the time of dishonoring of cheque even if it was not so at the time of handing over post dated or blank cheque to the complainant. Hon'ble Delhi High Court in Suresh Chandra Vs. Amit Singhal Crl. L.P. No. 706/2014 dt. 14.05.2015 observed as under:
" 43. The Court also held that the expression, 'consideration' used in the Contract Act is a very wide term, and it is not restricted to monetary benefit. Consideration does not necessarily mean money in return of money, or money in lieu of goods, or services. Any benefit or detriment of some value can be a consideration. The Court held that the complainant and the other owners of the property blocked their asset till the period of completion of the construction as per the collaboration agreement. The same was the consideration within the meaning of Section 2(d) of the Indian Contract Act. Thus, the reciprocal obligations of the builder, namely to create a security deposit was also a consideration for the contract. Consequently, the court dismissed the quashing petition.
44. In Sai Auto Agencies through its partner Dnyandeo Ramdas Rane v. Sheikh Yusuf Sheikh Umar, 2011 (1) Crimes 180, the defence of the respondent/accused was that, in relation to purchase of a tractor and equipments from 6/9 the appellant, five blank cheques were given only as security.
The respondent claimed that the complainant had already received the entire purchase consideration, and that the cheque in question was without consideration. The Court rejected the defence of the accused that the entire consideration stood paid to the appellant supplier. Relying upon Beena Shabeer (supra), the High Court observed: "7. ... ... ... Necessarily, the cheque given as a security, if bounced, shall be the subjectmatter of a prosecution under Section 138 of the Act. So, the contention of the accused that cheque (exhibit 28) was given only as a security will not enable him to escape from the clutches of law".
(emphasis supplied)
45. The High Court further held as follows:
"9. Even if blank cheque has been given towards liability or even as security, when the liability is assessed and quantified, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Negotiable Instruments Act".
Thus, the myth that the dishonour of a cheque given as a security, cannot be the subject matter of a compliant under Section 138 NI Act was busted in this decision as well".
7. Complainant (CW1) stated that he knew accused for last 8/10 years and he has been working as a property dealer. CW1 reiterated that he had advanced 7/9 loan in question to the accused at his house on 21.11.2015 after withdrawal of money from his bank account. CW1 further submitted that pronote /receipt Ex. CW 1/A was brought by the accused and the third person known to the accused and accompanying him had filled the contents of the said receipt. CW1 denied that he had got signature and thumb impression of the accused on pronote/receipt Ex. CW 1/A when it was blank. CW1 testified that accused had promised him to repay the said loan within 15 days as he was to receive some arrear from his employer i.e. MCD. However, CW1 admitted that he had also advanced Rs. 4,00,000/ to Dinesh and Rs. 8,00,000/ to Raju Yadav and he has never been income tax payee. CW1 further denied that accused has just received Rs. 50,000/ from him.
8. Accused admitted signing his cheque in question and also giving the same to the complainant. Accused further admitted that he had taken Rs. 50,000/ from the complainant and for repayment of the same, he had given blank signed cheque in question to the complainant. Ld. Defence Counsel contended that the complainant did not mentioned the loan transaction in question in ITR and he might have withdrawn some amount from his bank account for any other purpose . Here, the court is of considered view that it is not legal mandate for the complainant to show the loan transaction in ITR for enforcing culpability of the drawer/accused under section 138 of NI Act and he may prove his claim by showing other evidences like withdrawal of money from his bank account or pronote/receipt like in present case. Ld. Counsel for accused further submitted that accused had signed and put his thumb impression on promote/receipt Ex. CW 1/A when it was blank at the time of taking loan of just Rs. 50,000/ from the complainant. Here, the court is of considered opinion that every person is supposed to know the nature consequences of his act and evidenciary value of promissory note/receipt Ex. CW 1/A cannot be thrown out of consideration merely on the ground that accused has signed when it was blank and that too without any plausible explanation. Further, accused did not 8/9 lead any defence evidence despite opportunity afforded by the court to him for the same and he opted such course of action at his own peril in this case.
9. In view of admitted giving signed cheque in question to the complainant by the accused, taking of some loan of lesser amount from the complainant and signing and putting thumb impression on pronote/receipt Ex. CW 1/A, mandatory presumption of supportive consideration qua dishonoured cheque in question u/s 118/139 of NI Act and also aforesaid discussions of facts and law and also absence of any positive defence evidence, this court is of considered view that accused failed to rebut the legal presumption of legally enforceable debt or liability arose in favour of holder of cheque i.e. complainant of the case u/s 118/139 of NI Act. Accordingly, accused persons are convicted for the offence u/s 138 of the NI Act in the present complaint case. RAKESH Digitally signed by RAKESH KUMAR RAMPURI KUMAR Location: Karkardooma Courts, East District, Delhi Date: 2018.11.29 16:41:01 RAMPURI +0100 Announced in the open court (RAKESH KUMAR RAMPURI) on 29th November, 2018 MM/KKD/Delhi 29.11.2018.
This judgment contains 09 signed pages.
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