Delhi District Court
Complainant vs Sunil Kumar Singh on 10 February, 2020
IN THE COURT OF MS. TARUNPREET KAUR, MM03 (NI ACT)
SOUTHWEST DISTRICT: NEW DELHI
C.C No. 242302017
CNR No.DLSW020338922017
Under Section 138 of Negotiable Instruments Act, 1881
In the matter of :
Smt. Lachhmi Masand
R/o Flat No. 71 D, Block AG1,
MIG Flats, Vikas Puri,
New Delhi110018.
......Complainant
versus
Sunil Kumar Singh
R/o WZ184, First Floor,
Palam Gaon, Gole Chakkar,
New Delhi. ...... Accused
Offence complained of / proved : Under Section 138
Negotiable Instruments Act,
1881.
Plea of the accused : Pleaded not guilty
Date of Institution : 29.11.2017
Final Order / Judgment : Convicted
Date of pronouncement : 10.02.2020
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J U D G M E N T:
1. The present complaint has been filed under Section 138 of the Negotiable Instruments Act, 1881. The facts in brief as averred in the complaint are that the accused had friendly relations with the complainant and he used to borrow money from the complainant for business and investment purposes. The accused approached the complainant in June, 2016 for a financial assistance of Rs.12 lakhs for a period of one year for purchasing some property in Lucknow, UP and the accused promised that he would be repaying the loan amount to the complainant with profit. The complainant then advanced a sum of Rs.12 lakhs to the accused in part payments, i.e. a sum of Rs.7 lakhs was advanced on 28.07.2016 and a sum of Rs. 5 lakhs on 12.08.2016, after withdrawing the same from her bank account. Thereafter, at persistent requests made by the complainant, the accused issued a cheque bearing no. 003297 dated 08.10.2017 for a sum of Rs.9 lakhs drawn on Allahabad Bank, Palam, New Delhi in discharge of his liability. The accused assured the complainant that he would also repay the remaining loan amount of Rs.3 lakhs within a short period of time.
However, when the complainant presented the aforesaid cheque for encashment, the same was dishonoured vide return memo dated 17.10.2017 for 2 of 19 reasons 'drawer's signature differs'. The complainant allegedly then served legal notice dated 24.10.2017 on the accused demanding the cheque amount. In spite of service of said notice, the accused failed to make the payment against the cheque in question and hence, the present complaint was filed against him under section 138 Negotiable Instrument Act, 1881.
2. In the presummoning evidence, evidence by way of affidavit (Ex.CW1/A) was filed on behalf of the complainant. The complainant reiterated all the averments made in her complaint and in support of the allegations made in her complaint, she relied upon the following documents:
(i) Cheque bearing no. 003297 dated 08.10.2017 for a sum of Rs.9 lakhs drawn on Allahabad Bank, Palam, New Delhi in favour of the complainant (Ex.CW1/3).
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(ii) Cheque return memo dated 17.10.2017 reflecting that the aforesaid cheque was dishonoured for the reason "drawer's signature differs"
(Ex.CW1/3).
(iii) Legal Notice dated 24.10.2017 addressed to the accused on behalf of the complainant demanding the payment of chequeamount within fifteen days from the receipt of said notice (Ex.CW1/4).
(iv) Postal receipts reflecting the fact that the aforesaid legal notice was dispatched to the accused on 24.10.2017 (Ex.CW1/4).
(v) Reply, dated 04.11.2017, to legal notice sent by the accused to the complainant (Ex.CW1/5).
(vi) CD recording of conversation between the son of the complainant and accused's wife (Ex.CW1/6 (Colly).
3. Upon consideration of the complaint and documents annexed therewith and upon examination of the complainant, the cognizance of offence under Section 4 of 19 138 Negotiable Instruments Act, 1881 was taken and process was issued against the accused. The accused appeared before the court and he was admitted to bail.
4. Notice under Section 251 Cr.PC was framed against the accused to which he did not plead guilty and he claimed trial. The accused stated that he had not issued the cheque in question and that the same does not bear his signature. He further stated that he had lost the impugned cheque and he had made a complaint with respect to the same with his bank. He stated that he had also made an online FIR and that he had received the legal notice.
5. An application under Section 145(2) Negotiable Instruments Act, was moved on behalf of the accused seeking permission for recalling and cross examination of the complainant witnesses. The said application was allowed and the complainant was cross examined.
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6. The complainant got herself examined as CW1 in pre as well as post summoning evidence. She was duly cross examined by the Ld. counsel for the accused. Thereafter, the complainant summoned a bank witness who was examined and cross examined as CW2 by the Ld. counsels for both the parties. The said bank witness brought the certified copy of account opening form of the accused, which was exhibited as Ex.CW2/1. He also brought the certified copy of the application/complaint dated 29.12.2016 made by the accused regarding the misplacement of his cheques and the same was exhibited as Ex.CW2/D1.
The complainant then summoned another bank witness who was examined and cross examined as CW3. This witness brought the bank statement of the account of the complainant and the certified copy of outward cheque inquiry regarding cheque number 3297 dated 16.10.2017, which were exhibited as Ex.CW3/1 and Ex.CW3/2 respectively.
Thereafter, no further evidence was led on behalf of the complainant and accordingly, the CE was closed.
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7. The accused was then examined in accordance with provisions of Section 313 Cr.PC wherein, he almost reiterated his defence which he had stated in the notice framed against him under section 251 Cr.PC. He stated that he did have friendly relations with the complainant but he had never approached her for the alleged loan. He further stated that no loan was granted to him by the complainant nor had he given any cheque to the complainant to discharge any liability. He further stated that the complainant used to visit a physiotherapy centre where he used to work. He further stated that he had lost three of his blank signed cheques and that he had made a complaint with respect to the same. He further stated that he had received an intimation from his bank when the cheque in question was dishonoured, however, when he approached his bank, he was informed that since he had already made the complaint with respect to his lost cheques, a fresh complaint with the bank was not required. He further stated that he had also made an online complaint with the Delhi Police. He further stated that he had received the legal notice and he had also replied to the same.
8. The accused did not opt to lead defence evidence and accordingly, DE was closed.
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9. Final arguments were heard. It was submitted by Ld. counsel for the complainant that all the ingredients of the offence under Section 138 Negotiable Instruments Act are made out and accordingly, the accused be convicted. He further argued that the present loan amount was advanced by the complainant to the accused after the complainant had withdrawn the said amount from her bank account. He further argued that no document was brought by the bank witness as to the stop payment instruction allegedly given by the accused. He further argued that the accused has taken different defences in the present matter. He further argued that in the CD filed on record i.e. Ex.CW1/6, the accused's wife has admitted the liability of the accused. He further argued that the accused stated in his application under section 145 (2) Negotiable Instruments Act, that the complainant has misused the cheque in question, however, his initial stand has been that he had not signed the cheque in question. He further argued that the accused made the complaint to the bank and to the police on two different dates.
10. On the other hand, Ld. counsel for the accused argued that the complainant has failed to establish guilt of the accused beyond reasonable doubts and accordingly, the accused be acquitted. He further argued that it has been stated by the 8 of 19 complainant in her complaint that the loan amount was to be repaid by the accused with profit, however, nothing has been clarified as to what amount of profit was agreed upon. He further argued that it is not clear as to in whose presence the present loan was allegedly advanced to the accused and that there has been no mention of those persons in the list of witnesses filed by the complainant. He further argued that there has been no proof as to the availability of cash with the complainant at the relevant time. He further argued that there is no loan agreement which could show that the alleged loan was so advanced. He further argued that the complainant has not shown the alleged loan amount in her ITR for the relevant financial year.
11. In order to establish an offence under Section 138 of the Negotiable Instruments Act, the following ingredients are to be established by the complainant:
(i) Cheque must have been drawn by the accused on an account maintained by him with a banker.
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(ii) Cheque must have been drawn for payment of any amount of money to another person for discharge, in whole or in part, of any debt or other liability.
(iii) Said cheque is returned unpaid by bank for the reason that either 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.
(iv) The cheque must have 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.
(v) The payee or holder in due course makes a demand for payment by giving notice in writing to the drawer of the cheque within 30 days of receipt of information by him from the bank regarding the return of cheque as unpaid.
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(vi) Drawer of the cheque fails to make the payment of the said amount to the payee or holder in due course of cheque within 15 days of said notice.
12. Section 142, Negotiable Instruments Act further requires that the complaint under Section 138 must be made in writing by payee or holder in due course of cheque and such complaint must be made within one month from the date on which the cause of action arises i.e. within one month from the expiry of fifteen days time within which the accused is required to make the payment of cheque amount upon receipt of demand notice.
13. Now coming to the facts of the present case, the impugned cheque was dishonoured for the reason "drawer's signature differs". And, on the other hand, the accused has stated that the cheque in question does not bear his signature. The burden, however, to prove the same is upon the accused.
11 of 19 The position of law in cases where a cheque gets dishonoured for reasons "drawer's signature differs" is manifestly clear in light of judgment of Hon'ble Supreme Court in the case Laxmi Dyechem v. State of Gujarat and others (2012) wherein it was held that dishonour of the cheque by a bank on the ground 'drawer's signature differ' would constitute a dishonour within the meaning of Section 138 of Negotiable Instruments Act.
It was laid down in the aforementioned case that "Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of section 138 of the Act."
14. It is not in dispute that the cheque in question was presented within the period of its validity and that it was dishonoured; that upon information of dishonour of the cheque, the complainant made a demand in writing for payment of cheque 12 of 19 amount within a period of thirty days from the receipt of information of dishonour, the receipt of legal notice has been accepted by the accused and he failed to make payment of the cheque amount within 15 days of the said receipt.
Accordingly, ingredients (iii), (iv), (v) and (vi) of the offence under section 138 are well established and are not in dispute.
15. It is now to be seen if the ingredient (i) and (ii) of the offence under section 138 are established in the present matter.
The accused has taken the defence that he had not taken any loan from the complainant nor does the cheque in question bear his signature. His further defence has been that he had lost his cheques, which he believes to have been stolen by the complainant. And, the burden to prove these averments is on the accused. 13 of 19 15.1. The entire line of defence of the accused has been on the point that he had not signed the cheque in question. This was the defence taken by him in the notice framed against him under section 251 Cr.PC and also in his application filed under section 145 (2) Negotiable Instruments Act. However, the accused ended up stating something else in his statement recorded under section 313 Cr.PC he stated that "I had lost three of my blank signed cheques"
It is very clear that the accused admitted his signature on the cheque in question in his statement under section 313 Cr.PC and that he has taken two different as well as contradictory defences.
15.2. Further, no evidence nor any witness has been brought before the court on behalf of the accused to substantiate the statements made by him. He did not even step into the witness box himself to depose albeit the same is not necessary on part of the accused, still he could have done so to bring some evidence on record from his side.
14 of 19 15.3. Since the accused admitted his signature in his statement recorded under section 313 Cr.PC in the manner as above discussed and no evidence was brought by him before the court which could show that he had not signed the cheque in question, the ingredient (i) of the offence under section 138 Negotiable Instrument Act also stands established. It also cannot be overlooked that the accused never sought to get the signature on the cheque in question compared with his specimen signature from a handwriting expert in order to prove that he had not signed the cheque in question.
16. Ingredient (i) being established, it is to be considered now if the accused had issued the cheque in question in discharge of any legal liability. The accused has averred that he does not owe any liability towards the complainant.
At this point, provisions of Section 118 read with Section 139 of the Negotiable Instruments Act, become relevant which raise a presumption that the negotiable instrument was drawn for a consideration and that payee or holder in due 15 of 19 course of cheque received the said cheque for discharge, in whole or in part, of any debt or other liability.
17. The presumption as discussed as above is a rebuttable presumption and the burden of rebuttal lies on the accused. The standard of proof required is not as strict as is required to establish a criminal liability, and would get discharged on the basis of preponderance of probabilities. The rebuttal does not have to be conclusively established, rather such evidence in support of the defence needs to be adduced before the court that the court either believes the defence to exist or considers its existence to be reasonably probable.
17.1. Alongwith his application under section 145(2) Negotiable Instruments Act, the accused filed the copy of the complaint made by him to his bank when he had lost his cheques. The certified copy of the said complaint was brought on record by CW2 i.e. the bank witness, and it was exhibited as Ex.CW2/D1. The accused also brought the copies of the complaints made by him with the police online and the one made to the SHO concerned. The complete insistence of the accused has been on the point that he had made complaints regarding his lost cheques.
16 of 19 He stated in his statement recorded under section 313 Cr.PC "the complainant used to visit a physiotherapy centre where I used to work and she used to stay there for two to three hours." He never mentioned in the said statement that the complainant used to visit his home also. While in his application filed under section 145 (2) Negotiable Instruments Act, he stated that the complainant visited his house several times and he did not know as to when she had stolen his cheques.
Let alone bringing evidence on record which could show that his cheques or the cheque in question were stolen by the complainant, the accused has failed to take even a consistent stand on this point and he has miserably failed to furnish a decent explanation as to how the complainant came to have the cheque in question.
17.2. Since no evidence has been brought forth on behalf of the accused, it is to be seen now if the defence has been successful in highlighting the loopholes in the version of the complainant and thereby rebut the presumption raised against him under the relevant provisions of the Negotiable Instruments Act. The 17 of 19 appraisal of cross examination of the complainant i.e. CW1 does not reflect any contradiction or inconsistency with the version stated by her in the complaint.
Further, Ex.CW1/2 reflects that the complainant had sufficient balance in her bank account during the relevant time and that she had withdrawn an amount of Rs. 7,00,000/ and Rs. 5,00,000/ on 28.07.2016 and 12.08.2016 respectively, and it substantiates the averments by her in the present complaint.
18. In view of the above discussion, this court is of the considered opinion that the accused has failed to prove the defence taken by him and, the presumption raised by virtue of Section 118 read with Section 139, Negotiable Instruments Act remains unrebutted. Accordingly, ingredient (ii) of the offence under Section 138, Negotiable Instruments Act is also established.
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19. Further, upon consideration of the facts of the case and evidence adduced, this court is of the view that the complainant has been able to establish the guilt of the accused.
20. Accordingly, the accused Sunil Kumar Singh is hereby convicted of offence under Section 138 of the Negotiable Instruments Act, 1881.
21. Copy of this judgment be given to the convict free of cost.
Digitally signed by TARUNPREET TARUNPREET KAUR KAUR Date: 2020.02.13 03:18:12 +0530 Announced in the open Court on 10th day of February, 2020 (Tarunpreet Kaur) MM03 (NI Act)/SouthWest Dwarka/ New Delhi 19 of 19