Delhi District Court
Cc No. 981/2012, Sbi vs Onkar Singh on 20 February, 2013
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IN THE COURT OF SHRI JAGMOHAN SINGH, MM (NI ACT)08
DWARKA COURTS:NEW DELHI
CC NO:981/12
Unique Case ID No:RO755232009
State Bank of India
Uttam Nagar Branch, New Delhi
[Through its Branch Manager] .............................. Complainant
Versus
Onkar Singh
Late S/o H.S. Sahni
R/o Flat No. 29, NDMC Housing Complex
Sector11, Rohini, Delhi85
Also at:
Shift Incharge, NDMC
33/11, KVA Electric Sub Station
Hanuman Road, New Delhi. ................................ Accused
1. Name of the complainant : State Bank of India
2. Name of the accused : Onkar Singh
3. Offence Complained of or proved : Under section 138 of Negotiable
Instruments Act, 1881
4. Plea of the Accused : Pleaded not guilty
5. Date of filing : 21.03.2010
6. Date of Institution : : 03.04.2010
7. Date of reserving judgment/order : 26.02.2013
8. Final Order/Judgment : Convicted
9. Date of pronouncement : 20.03.2013
CC No. 981/2012, SBI vs Onkar Singh
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JUDGMENT
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act filed by the complainant against the accused.
2. The case of the complainant is that the complainant is a Body Corporate constituted under the State Bank of India Act, 1955. The accused availed personal loan from the complainant Bank. The accused issued five cheques bearing no. 522615, 522616, 522617, 522618, 522619 and 522620 each dated 10.09.09, 10.10.09, 10.11.09, 10.12.09, 10.01.2010 and 10.02.2010 respectively for a sum of Rs.7,500/ each all drawn on UTI Bank, Khan Market, New Delhi. The aforesaid cheques when presented for payment were returned dishonoured vide return memos dated 23.02.2010 and 18.02.2010 with the remarks "Account Blocked". Thereafter, the complainant sent a legal demand notice dated 05.03.2010 through postal receipt dated 06.03.2010 to the accused. However, as per the complainant, despite service of the said legal notice of demand the accused failed to pay the aforesaid dishonoured cheques. Hence, the present complainant.
3. The cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Ld. Predecessor Court and accused was summoned vide order dated 20.04.2011. The accused appeared in Court and was admitted to bail. Thereafter, separate notice u/s 251 Cr.P.C. explaining accusations against the accused u/s 138 of the NI Act was framed against the accused on CC No. 981/2012, SBI vs Onkar Singh 3 16.05.2012, to which he did not plead guilty and claimed trial.
4. An application filed by the accused u/s 145(2) NI Act seeking cross examination of the complainant witneses was allowed. Accordingly, AR of the complainant was cross examined by the accused. Vide separate statement of the AR of the complainant CE was closed on 20.07.2012. Thereafter, statement of the accused u/s 313 Cr.P.C was recorded on 03.11.2012. An application filed by the accused u/s 315 Cr.P.C seeking permission of the Court to examine himself as DW was allowed and the accused deposed as DW1. Vide separate statement of Ld. Counsel for accused DE was closed vide order dated 21.01.2013.
5. Documents relied upon by the complainant are as follows:(i) Copy of the SBI General Regulations 1955 as Ex. CW1/1 read with notification dated 27.03.1987 as Ex. CW1/2 authorising the Branch Manager to appear on behalf of the Complainant and to prosecute the present complaint case;(ii) Personal loan application dated 11.08.07 as Ex. CW1/3 and loan agreement dated 14.08.07 as Ex. CW1/4; (iii) Original Cheque bearing no.522615 as Ex. CW1/5 with its return memo as Ex. CW1/6; (iv) Original Cheque bearing no. 522616 as Ex. CW1/7 with its return memo as Ex. CW1/8; (v) Original Cheque bearing no. 522617 as Ex. CW1/9 with its return memo as Ex. CW1/10; (vi) Original Cheque bearing no.522618 as Ex. CW1/11 with its return memo as Ex. CW1/12; (vii) Original Cheque bearing no.522619 as Ex. CW1/13 with its return memo as Ex. CW1/14; (viii) Original Cheque bearing no.522620 as Ex. CW1/15 with its return memo as Ex. CW1/16 (ix) Copy of CC No. 981/2012, SBI vs Onkar Singh 4 legal notice as Ex. CW1/17, postal Receipts as Ex. CW1/18 and CW1/19 and AD Card as Ex.CW1/20; and (x) affidavit of evidence as Ex.CW1/A.
6. It is well settled position that to constitute an offence under S. 138 N.I. Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has 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;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
7. I have gone though the record and also heard both the parties. During his examination u/s 313 Cr. P. C., the accused admitted having taken the loan in question from the complainant, issuance of the cheques in question towards CC No. 981/2012, SBI vs Onkar Singh 5 payment of installments in respect of the loan and dishonour of the cheques in question for the reason "account blocked". However, he submitted that the cheques in question were given towards payment of monthly installments against the loan in question but the complainant presented them together without his consent. He also denied having received the legal notice. Ld. Defence Counsel also took a defence during final arguments that as the dishonour memos in question did not bear the seal of the Bank or the signatures of any Bank official, the same could not be read in evidence. The accused also took the defence that he only signed some cheques and the remaining particulars were filled by the complainant. Accordingly, the following four questions arise for consideration of this Court:
(i) Whether the complainant was entitled to present all the cheques in question in one go without the consent of the accused.
(ii) Whether legal demand notice was served upon the accused.
(iii) Whether the dishonour memos in question can be read in evidence.
(iv) whether the defence of the acccused of other particulars, except his signatures, being filled by some one else in some of the cheques is a valid defence in the eyes of law.
Discussion on question (i) and finding thereon
8. As observed in the preceding para, during his examination u/s 313 Cr. P. C., the accused admitted having taken the loan in question from the complainant, issuance of the cheques in question towards payment of CC No. 981/2012, SBI vs Onkar Singh 6 installments in respect of the loan and dishonour of the cheques in question for the reason "account blocked". However, he submitted that the cheques in question were given towards payment of monthly installments against the loan in question but the complainant presented them together without his consent. Ld. Defence Counsel, therefore, contended that as the consent of the accused was not obtained before presenting the cheques in question and as all the cheques were presented together, the provision of Section 138 was not attracted in the present case.
9. Ld. Counsel of the Complainant, on the contrary, drew the attention of the Court to the cross examination of CW1 dated 20.07.2012 wherein the said witness stated that the loan was payable in monthly installments and the cheques in question were given towards payment of said monthly installments. CW1 also stated that neither there was any agreement nor any madatory requirement that the cheque towards each installment would be presented during that month only. Ld. Counsel also pointed out that it was settled law that a cheque could be presented anytime during its valadity.
10. The above rival contentions may now be examined. There are six cheques in question, cheque Nos. 522615 (Ex. CW1/5) dated 10.09.2009, 522616 (Ex.CW1/7) dated 10.10.09, 522617 (Ex.CW1/9) dated 10.11.09, 522618 (Ex.CW1/11) dated 10.12.09, 522619 (Ex.CW1/13) dated 10.01.2010, and 522620 (Ex.CW1/15) dated 10.02.2010 for a sum of Rs.7,500/- each drawn on UTI Bank, Khan Market New Delhi Branch. All the above cheques were received back dishonoured vide six returning memos Ex.CW1/6, Ex.CW1/8, Ex.CW1/10, Ex.CW1/12, Ex.CW1/14 and Ex.CW1/16, each dated CC No. 981/2012, SBI vs Onkar Singh 7 23.02.2010 with the remarks "Account Blocked". Section 118 of the Evidence Act raises some presumptions as to negotiable instruments and clause (b) thereof provides that until the contrary is proved, it shall be presumed that every negotiable instrument bearing a date was made or drawn on such date. The period of valadity of a cheque starts from the said date. The valadity of a cheque at the relevant time was six months. It is apparent that all the above cheques were presented during their valadity.
11. As per accused's own admission, all the above cheques were given towards payment of monthly installments. Thus, the above cheques were given towards payment of six installments due from 10th September, 2009 to 10th February, 2010. The defence of the accused is that instead of presenting these cheques one by one, each month, the complainant presented all the six cheques together on 23.02.2010. Even on the face of it the said defence is not at all tenable for the simple reason that it was the duty of the accused to ensure that the above cheques were honoured on their presentation. If at all, the complainant was only giving grace period to the accused by not presenting each cheque on the date written thereon (which also it was entitled to do) but presenting them on 23.02.2010. As the monthly installments had become due long before the presentation of the chques in question, the question of seeking the consent of the accused did not arise at all.
12. In the above facts, I find that the complainant was entitled to present all the cheques in question in one go without the consent of the accused. Discussion on question (ii) and finding thereon
13. The accused has also taken a defence that he did not recieve the legal notice. The same may now be dealt with.
14. Section-27 of the General Clauses Act, which raises a presumption of CC No. 981/2012, SBI vs Onkar Singh 8 service by post, reads as under:
" Meaning of service by post - Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give"
or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre- paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
15. In C.C. Alavi Haji v. Palapetty Muhammed and Anr. (2007) 6 SCC 555 it has been held as under:-
"S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
16. It was further held as follows:-
"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 CC No. 981/2012, SBI vs Onkar Singh 9 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." (para 17)
17. The legal position which emerges from the above judgment is that presumption of service of notice arises when it is sent to the correct address of the accused by registered post. If any accused claims that he did not receive the legal notice, he can make payment of the cheque amount even 15 days of the receipt of summons. The person who does not so pay, cannot 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 General Clauses Act.
18. The facts of the present case may now be examined in the light of the above legal position. A combined legal notice referring to all the six cheques in question (Exh. CW1/17) dated 05.03.2010 was sent to Flat No. 29, NDMC Housing Complex, Sector 11 Rohini, Delhi 58 residential address and NDMC, 33/11 KVA Electric Substation, Hanuman Road, New Delhi 110001 official address of the accused, mentioning his designation as Shift Incharge, vide two Regd. AD receipts Exh. CW1/8 and Exh. CW1/9 dated 06.03.2010 and 08.03.2010 respectively. A Regd. AD Card Exh. CW1/20 was received back having signature of the recepient. The accused admitted during his cross examination as DW that the above Sector 11 Rohini address was his old residential address and he was also previously posted at his above official address. He stated that he was not aware when he shifted his house and denied CC No. 981/2012, SBI vs Onkar Singh 10 having signed the Regd. AD Card Exh. CW1/20.
19. In the face of admission of the accused about correctness of both the above addresses, presumptinon u/s 27 General Clauses arose in favour of the complainant. It was then for the accused to rebut the same by cogent evidence of the Postaman concerned or any other official of the Department of Post to show that he was never served the said notice. The accused, however, failed to do so. In view of the above documentary evidence placed on record by the complainant, mere denial of the accused of not having received the legal notice or not having signed the Regd. AD card would not be sufficient to rebut the presumption of service.
20. In view of the above discussion, I find that the legal notice was served upon the accused.
Discussion on question (iii) and finding thereon
21. Ld. Defence Counsel also contended that the dishonour memos Exh. CW1/6, Exh. CW1/8, Exh. CW1/10, Exh. CW1/12, Exh. CW1/14 and CW1/16 can not be read in evidence as they neither bear the seal of the issuing bank nor have they been signed by any one and, thereofore, presumption u/s 146 NI Act can not be raised. The above contention may now be examined.
22. Section 146 of NI Act, inter -alia, provides that the Court shall, in respect of every proceeding under Sections 138 to 145 NI Act, on production of Bank slips or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque unless and until such fact is disproved.
CC No. 981/2012, SBI vs Onkar Singh 11
23. It is correct that while the dishonour memos in question contain the name of the issuing bank as State Bank of India, they do not bear the stamp of the issuing bank, nor do they bear any signature. However, it is also pertinent to mention that the accused admitted the dishonour of the cheques in question for the reason "Account Blocked" during his examination u/s 313 Cr.P.C.
24. Section 58 of Evidence Act provides that no fact need to be proved in any proceedings which the parties thereto agree to admit at the hearing. In Manoj A. Chhara vs State Of Gujarat (1993) 1 GLR 586 (Gujarat High Court) upon conviction of the accused for the offence u/s 380 IPC, the trial Court called for the report of the Probation Officer which showed previous conviction of the accused. Accordingly, the benefit of Probation was not granted to the accused and he was sentenced to impriosonment. The accused challenged the sentence on the ground that as his previous conviction record was not proved as per Section 298 Cr.P.C., the said record could not be relied upon by the trial Court. Hon'ble Hight Court of Gujarat oberved that there was a clear-cut statement in the judgment and order of the trial Court that the accused had not challenged the contents of the report of the Probation Officer more particularly with respect to his previous convictions. It was further observed that in that view of the matter, there was no hesitation in coming to the conclusion that the accused had admitted the contents of the report of the Probation Officer without any demur of reservation. Hon'ble High Court then referred to Section 58 of the Indian Evidence Act and while noting that the said Section provided for dispensation of the proof of a fact which was admitted, dismissed the appeal.
25. In the present case also in view of categorical admission of the accused of the fact of dishonour of the cheques in question, the proof of said fact stood CC No. 981/2012, SBI vs Onkar Singh 12 dispensed with in terms of Section 58 Evidence Act.
26. It is also settled law that the objection about mode of proof can be waived by the party and unless such objection is raised at the earliest opportunity, the same would be deemed to have been waived [Smt. Rajia Sultan Widow of Mirza Sultan Ali Baig and others v. Oil and Natural Gas Commission, 1985 (2) GLR 1315].
27. In the present case, CW1 Shri Nand Kishore was cross examined by the Ld. Defence Counsel on 20.07.2012. However, no suggestion whatsoever was put to the said witness about mode and manner of proof of dishonour memos in question. That being so, the accused can not be permitted to raise the objection regarding the same first time at the stage of final arguments.
28. In Vijendrajit Ayodhya Prasad Goel vs State Of Bombay AIR 1953 SC 247 it was observed that where the accused in his examination u/s 313 Cr.P.C. admitted a particular fact disclosed in the prosecution evidence, whereupon no further evidence was led upon by the prosecution on that point, the Magistrate would be justified in referring to the admission of the accused as supporting the prosecution case and evidence on that point.
29. In view of the above discussion, I hold that in view of the admission by the accused regarding dishonour of the cheques in question during his examination u/s 313 Cr.P.C., the proof of the fact of dishonour stood dispensed with in terms of Section 58 of the Evidence Act. Further, as the objection to the mode and manner of proof of the said fact was not raised by the accused during cross examination of CW1, the accused can not be permitted to raise the CC No. 981/2012, SBI vs Onkar Singh 13 same for the first time at the stage of final arguments. Accordingly, I come to the finding that the dishonour memos in question can be read in evidence. Discussion on question (iv) and finding thereon
30. The acused stated during his examination u/s 313 Cr.P.C. that the particulars except the signatures in some of the aforesaid cheques had not been filled by him. On the face of it, this statement is contrary to the categorical statement of the accused at the time of framing of Notice that he had filled all the particulars in the cheques in question. Even then, it may now be examined whether the above defence is of any help to the accused or not.
31. Section 20 NI Act provides for "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 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."
32. The position in law has been explained in the judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
"In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In CC No. 981/2012, SBI vs Onkar Singh 14 fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. "
33. The above judgment was quoted with approval by the Hon'ble Delhi High Court in Ravi Chopra vs State And Anr. 2008(2) JCC (NI) 169 and it was held that if the signatures on the cheque are admitted by the accused, it matters little if the name of the payee, date and amount are filled up at a subsequent point in time.
34. In view of the judgments discussed above, the defence of the accused that other columns in some of the cheques , except the signatures, were not filled by him does not have any force in the eyes of law.
Order
35. In view of my above findings, I hold that that the complainant has been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Onkar Singh is convicted of the offence under section 138 of the Negotiable Instruments Act. Order on sentence shall be passed after hearing the accused.
Announced in open Court on (JAGMOHAN SINGH) 20th March, 2013 (14 pages) M.M.(NI Act)-08/Dwarka, Delhi/ 20.03.2013 CC No. 981/2012, SBI vs Onkar Singh