Delhi District Court
Cc No. 4276/10 Sukhwinder Kaur vs . Prem Sagar Page No. 1 Of Pages 17 on 30 March, 2011
CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 1 of Pages 17
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
SUKHWINDER KAUR
VS.
PREM SAGAR
CC NO. : 4276/10
P.S. : VIVEK VIHAR
U/s : 138 N.I. Act
JUDGMENT
1 Date of the commission of offence : 23.02.2001 2 Name of the complainant : Sukhwinder Kaur 3 Name of the accused and address : Prem Sagar S/o Sh. Babu Ram R/o C1/403, Nand Nagri Delhi 4 Offence complained of : U/s 138 N.I. Act 5 Plea of accused : Not guilty 6 Final order : Acquitted 7 Date of such order : 30.03.2011 Date of Institution of case : 17.03.2001 Date of decision of the case : 30.03.2011 CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 2 of Pages 17 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complainant U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant Smt. Sukhwinder Kaur against the accused Prem Sagar.
2. The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, the complainant is the Proprietor of M/s Lotus finance and brokers and is engaged in the business of finance. It is alleged that accused approached the complainant and requested for a friendly loan of Rs. 48,000/. At first instance the complainant did not accedes to the request of the accused but later on with pursuation of some common friends the complainant advanced a sum of Rs. 48,000/ to the accused as follows Rs. 11,500/ by way of cash on 17.04.2000, Rs. 1500/ by way of cash on 19.04.2000, Rs. 17,500/by way of cash on 05.05.2000, Rs. 9000/ by way of cheque no. 206425 on 15.05.2000, Rs. 8500/ by cheque no. 206426 on 26.05.2000. The wife of the accused stood surety in respect of this loan and she also executed security documents such as memorandum , Promissory mote , receipts, affidavit and CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 3 of Pages 17 agreement etc. The said loan was carrying interest @ 3 % p.m. The processing charge of Rs. 4500/ was also payable by the accused. It is alleged that the accused neither paid interest or processing charge and also not refunded the loan amount.
It is further alleged in the complaint itself that on 26.12.2000 the accused got issued a notice upon the complainant on false facts which was duly replied by the complainant. It is further alleged that thereafter the accused approached the complainant and apologized for his wrong conduct and in discharge of his liability issued a chque no. 862263 dated 10.01.2001 for a sum of Rs. 63,149/ drawn on United bank of India, Nand Nagri. On presentation the said cheque was dishonored vide returning memo dated 10.01.2001 with the remark funds insufficient. Complainant received this information from his banker vide memo dated 22.01.2001. The complainant has thereafter given a legal notice of demand dated 05.02.2001 to the accused which was sent by speed post and through UPC on 06.02.2001, thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
3. After the complaint was filed, the complainant led her pre CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 4 of Pages 17 summoning evidence and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 17.10.2001 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused notice U/s 251Cr.P.C. Dated 03.01.2003 was given to the accused to which he pleaded not guilty and claimed trial and further submitted that when he issued the cheque in question the same was blank and unsigned. He further submitted that he gave this cheque to one Mr. Shivshankar who delivered the same to the complainant. It is further submitted that his signature on the cheque have been forged and he is not liable to pay anything to the complainant neither any legal notice served upon him.
4. In order to prove the case, the complainant did not examine herself as complainant witness at the post summoning stage without any apearant reason rather Special Power of Attorney holder namely Sh. Gurudarshan Singh (father in law of the complainant) of the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence which is Ex. C1 and also exhibited original SPA as Ex. CW1/1. He also relied upon the already exhibited original cheque before the court which is Ex. CW1/A and the cheque returning memo as Ex. CW1/B & Ex. CW1/F, the legal CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 5 of Pages 17 notice of demand dated 05.02.2001 is Ex. CW1/C and postal receipt Ex. CW1/D & Ex. CW1/E. Complainant also got examine one Mr. Alok Aggarwal, Computer Operator from Union Bank of India i.e. The bank of the accused, who submitted that as per the statement of account of accused (A/C no. 96016) the cheque no. 862263 i.e. Ex. CW1/A was presented for clearing on 20.01.2001 and was returned on the same date because of insufficiency of funds, consequently account of the accused has been debited by an amount of Rs. 15/ towards the charges in respect of the same . Certified copy of the statement of account was exhibited as Ex. CW1/1. The cheque returning register is exhibited as Ex. CW1/2. Thereafter, complainant also examined CW2 Sh. Suresh Kumar, Public Relation Inspector, Post Office Nand Nagri who submitted with respect to the delivery of legal notice. Thereafter the complainant evidence was closed at request.
5. After that the statement of accused was recorded U/s 281 read with Section 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that he is innocent and he has been falsely implicated and he wants to lead defence evidence. Thereafter the case was fixed for Defence evidence. Accused examined himself as DW1 and also got examine DW2 Sh. Om CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 6 of Pages 17 Prakash, Deputy Manager United bank of Indian, Nand Nagri branch. Thereafter the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 7 of Pages 17 demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the
payment within 15 days of the receipt of the
aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
9. WHETHER THE CHEQUE WAS ISSUED OR NOT:
CW1 has stated in his examine in chief that cheque in question was signed and issued by the accused. The accused has submitted in notice U/s 251 Cr. PC and also in his evidence U/s 315 Cr.P.C that the cheque in question was given in blank unsigned condition. It is submitted by the accused in his evidence that he took a loan of rs. 17,500/ from Sh. Gurudarshan Singh ( the SPA holder of the complainant) which loan was duly repaid by him. It is further submitted that at the time of taking the loan he CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 8 of Pages 17 gave a cheque book containing 20 leafs to the Gurudarshan Singh out of which 13 cheques were later on returned by him and 07 blank unsigned cheques kept by him.
This is the defence taken by the accused from the very beginning of this case that his signature on the cheque is forged. Complainant examined CW1 Sh. Alok Kumar, computer clerk from the United Bank of India, Nand Nagri branch to prove that the cheque was dishonored because of insufficiency of funds. Accused in his defence had examined DW2 Omprakash Deputy manager, Posted at Union bank of india , nand nagri branch who exhibited on record copy of saving bank account opening application form which is exhibited as Ex. DW2/B of the accused with his specimen signatures. The Three specimen signatures of the accused are marked on the Ex. DW2/B. The fact that the cheque was signed by the accused has to be proved by the complainant but the CW1 Sh. Alok Kumar examined by the complainant did not deposed to the fact that the signature of the accused are same as they were in their bank records. It is submitted by the counsel for the accused that simply from looking at the cheque in question and the specimen signatures of the accused appearing on the account opening form Ex. DW2/B it is clear that both are different. It is further submitted that the dishonor memo issued by the united bank of India on the ground of insufficiency of funds has been CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 9 of Pages 17 mistakingly issued as the signatures are different on the cheque and on the account opening form.
As per Indian Evidence Act Handwriting of a person can be proved by following methods.
(I) By taking export opinion U/s 45 of the Indian Evidence Act. (II) By taking opinion of a person acquainted with the handwriting of that person. A person is said to be acquainted with the handwriting of a person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and address to that person or when in the ordinary course of business, documents purporting to be written or signed by that person have habitually submitted to him (Section 47 Indian Evidence Act).
(III) The court can compare the admitted signature of a person with the disputed signature of that person, in order to ascertain whether a signature is that of the person by whom it purports to have been written or made(Section 73 Indian Evidence Act).
In the present case expert opinion have not been taken. Further it is not submitted by CW1 Gurudarshan Singh that the cheque in question was signed in front of him or that he used to receive documents signed by the accused in normal course of business. Further CW1 Alok Aggarwal, computer operator from Union Bank of India have not deposed that he used to receive CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 10 of Pages 17 documents signed by the accused in the normal course of business. He has also not deposed that signature of the accused on the cheque and account opening form were compared before dishonoring the cheque on the ground of the insufficiency of the funds in this case.
Thus the only procedure left to make any opinion with respect to the signature of the accused on the cheque is comparison by the court itself. But in a number of cases it has been held by various High courts that though under the law court has power to make comparison of disputed and admitted signatures for just conclusion but as a rule of prudence expert opinion has to be obtained. Thus even this court is reluctant to give any opinion in this respect but from the bare perusal of the account opening form and cheque it is clear that signature of the accused on the two does not match in their visual appearance, but this court can not give any opinion as to whether both were written by the same person or not.
In a criminal case prosecution / complainant has to prove his case beyond shadow of any reasonable doubt. On the other hand to prove his defence the accused has to show only preponderance of the probability. In the present case complainant has failed to prove beyond reasonable doubt that the signature on the cheque were of the accused. On the other hand by getting account opening form exhibited accused has raised a probable CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 11 of Pages 17 defence as signature in Hindi "Prem Sagar" are different on the cheque from the specimen signatures in Hindi as written on the account opening form in their visual appearance though it can not be conclusively proved whether these two were written by two different persons or not. In this situation the complainant has failed to prove that the cheque in question was issued by the accused.
10. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY:
Perusal of the record reveals that the cheque in question which is Exhibit CW1/A is dated 10.01.2001 which got dishonoured vide cheque returning memo which is Exhibit CW1/B & Ex. CW1/F dated 20.01.2001 the factum of the dishonor is not disputed but it is submitted by the counsel for the accused that the reason given for the dishonor is not correct as signatures of the accused are diferrent on the cheque and on the account opening form which is Ex. DW2/B. Despite these things the fact remain the same that the cheque has been presented within period of its validity i.e. within six months from the date mentioned on the cheque.
11. DISHONOUR OF CHEQUE IN QUESTION:
CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 12 of Pages 17 In this case CW1 has got exhibited the cheque returning memo which is Ex. CW1/B & Ex. CW1F as per which the cheque in question was dishonoured on the ground of Insufficiency of funds. The factum of the dishonor is not disputed but it is submitted by the counsel for the accused that the reason given for the dishonor is not correct as signatures of the accused are different on the cheque and on the account opening form which is Ex. DW2/B. Despite the objections of the accused with respect to the reason of dishonor of the cheque but this is an accepted fact that the cheque was dishonored on 20.01.2001.
12. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 05.02.2001 which is Ex. CW1/C and it was sent to the accused on 06.01.2001 vide postal receipts Ex. CW1/D & Ex. CW1/E. Further it has been deposed by CW2 Sh. Suresh Kumar, Public Relation Inspector, Post Office Nand Nagri that registered letter no. 4391 addressed to the accused was returned back to the sender on 15.02.2001(Envelop of the returned letter is exhibited as Ex.
CW2/3) as unclaimed by the addressee. It is further submitted by him that on 08.02.2001 the intimation with respect to this letter CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 13 of Pages 17 was given to the daughter of the accused at his address as accused was not available at his home on that date. He also exhibited CW2/1 (OSR), a record which shows at point 'A' that information with respect to letter no. 4391 was given to one Mamta. Therefore its stands clear that legal notice was served upon the accused.
13. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
It is submitted by the CW1 that accused approached the complainant and requested for a friendly loan of Rs. 48,000/. At first instance the complainant did not accedes to the request of the accused but later on with pursuation of some common friends the complainant advanced a sum of Rs. 48,000/ to the accused as follows Rs. 11,500/ by way of cash on 17.04.2000, Rs. 1500/ by way of cash on 19.04.2000, Rs. 17,500/by way of cash on 05.05.2000, Rs. 9000/ by way of cheque no. 206425 on 15.05.2000, Rs. 8500/ by cheque no. 206426 on 26.05.2000.
The said loan was carrying interest @ 3 % p.m. The processing charge of Rs. 4500/ was also payable by the accused. That the accused neither paid interest or processing charge and also not refunded the loan amount.
It is further alleged in the complaint itself that on 26.12.2000 the accused got issued a notice upon the complainant on false facts which was duly replied by the complainant. It is further alleged CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 14 of Pages 17 that thereafter the accused approached the complainant and apologized for his wrong conduct and in discharge of his liability issued a cheque no. 862263 dated 10.01.2001 for a sum of Rs. 63,149/ drawn on United bank of India, Nand Nagri.
In his defence it is submitted by the accused that he took a loan of Rs. 17,500/ @ 2% interest p.m. from the complainant and have already returned the same before 26.11.2000 along with interest. It is submitted by the accused that in total he repaid Rs. 28,000/ towards the loan of Rs. 17,500/ in following manner : Rs. 5000/ in cash on 26.06.2000, Rs. 7,000/ on 26.07.2000, Rs. 5000/ on 26.08.2000, Rs. 5000/ 27.09.2000, Rs. 3000/ on 26.10.2000. All the above mentioned payments were in cash. Thereafter he paid an amount of Rs. 3000/ by way of a cheque bearing no. 862270 on 03.11.2000. It is further submitted by the accused that after making payment of Rs. 28000/ he realized on calculation that he has paid a sum of Rs. 5000/ extra to the complainant. Thereafter he sent a notice dated 26.12.2000 which is mark 'A' to the complainant thereby asking the complainant to return the excess amount of Rs. 5000/. The receipt of this notice has been accepted by the complainant in his complaint. Further a suggestion has been put by the counsel for the complainant in cross examination of the accused (U/s 315 Cr. P.C.) that the cheque of Rs. 3000/ was issued by the accused towards payment of file charges and convenience charges. Thus CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 15 of Pages 17 both the facts that such a legal notice was sent and a payment of Rs. 3000/ made by way of cheque have been accepted by the complainant while in his complaint it was submitted by the complainant that the accused never paid any file charge or convenience charge.
From these facts it is clear that the complainant never took any receipt from the accused towards advancing of loan amount given to him in cash despite the facts that the complainant deals in the business of finance and is supposed to do all the work in writing and also supposed to take receiving in respect of loan advanced. It is the own case of the complainant that she deals in the business of finance but no money lending licence has been filed on record by the complainant. In the absence of money lending licence the complainant cannot do the business of advancing loan. As per section 3 of Punjab Registration of money lenders Act such a loan can not be termed to be legally recoverable debt. A debt which is not legally recoverable can not be covered with in purview of Section 138 NI Act.
Further the notice dated 26.12.2000 sent by the accused also establish a probable defence in favor of the accused that he had taken loan of an amount of Rs. 17,500/ only. The complainant have failed to prove positively that the loan of Rs 48000/ was advanced to the accused. Though it has been observed by this court that complainant had failed to prove that CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 16 of Pages 17 accused had issued the cheque in question, still for the sake of argument if it is presumed that presumption as laid down in Sec. 139 come for the rescue of the complainant it is hereby made clear that by proving that accused had sent a notice to the complainant requesting him to return the excess amount he has paid in respect of the loan of Rs.17500 the presumption in favour of the complainant if any stand rebutted. Therefore complainant has failed to prove that she has advanced a loan of Rs. 48,000/ to the accused.
14. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE:
CW1 has deposed in his examination in chief that despite service of legal notice of demand accused has failed to pay the cheque amount to the complainant. Further the accused has submitted that he was not liable to pay anything to the complainant and that he had not paid any amount to the complainant as he has denied his claim by way of reply to the legal notice. Therefore this fact also stands proved.
15. In view of the aforesaid discussion, I am of the considered opinion that the complainant has failed to prove his case against CC No. 4276/10 SUKHWINDER KAUR Vs. PREM SAGAR Page no. 17 of Pages 17 the accused beyond shadow of reasonable doubts. Complainant has failed to prove two most important ingriedents of offence U/s 138 NI Act as she fails to prove whether the cheque in question was issued by the accused. Secondly she fails to prove whether a sum of Rs. 48,000/ was advanced to the accused.
Accordingly, accused Prem Sagar, S/o Sh. Babu Ram, R/o C1/403, Nand Nagri Delhi stands acquitted from the offence u/s 138 Negotiable Instruments Act.
Announced in the open court today i.e. On 30.03.2011. (GAJENDER SINGH NAGAR) MM: KKD: DELHI: 30.03.2011