Delhi District Court
Bawana vs . on 30 July, 2011
IN THE COURT OF SH. VIPIN KHARB
METROPOLITAN MAGISTRATE, DWARKA COURTS,
NEW DELHI
Case No. : 13064/09
State Bank of India. ... Complainant.
Bawana, Delhi 110039
Vs.
Ms. Anil Kumari.
D/o Sh. Rattan Singh
R/o H. No. 103,
Main Bazar, Near Bus Stand
Bawana, Delhi 110039 ... Accused.
Date of Institution : 13.03.2009
Date of Reserving Judgment : 11.07.2010
Date of Judgment : 30.07.2011
:: JUDGMENT ::
BRIEF FACTS AND REASONS FOR DECISION OF THE
CASE
1. By way of the present judgment, I shall decide the complaint Case No. : 13064/09 1 / 17 case U/s 138 Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant SBI Bank through its representativeSh. R P Singh, Branch Manager, Bawana, Delhi 110039 against the accused Ms. Anil Kumari D/o Sh. Ratan Singh.
2. The facts in brief necessary for the disposal of the present case are that as per the allegations in the complaint, the accused had sought payment of Rs. 1.50 lacs for the purpose of payment of earnest money while applying for the allotment of flat under DDA 2008 Scheme. Towards the repayment of aforesaid loan of Rs. 1.50 lacs accused has issued the cheque bearing no. 041902 dated 18.02.2009 for a sum of Rs. 1,50,000/ drawn on State Bank of India, Clock Tower, Sabzi Mandi, Delhi in favour of the complainant. However, on presentation of the same it was dishonoured vide cheque returning memo dated 18.02.2009 with remarks "Funds Insufficient". The complainant has thereafter given a legal notice of demand dated 23.02.2009 to the accused which was sent by speed post on 24.02.2009 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 Case No. : 13064/09 2 / 17 the instant complaint for prosecution of the accused U/s 138 Negotiable Instrument Act.
3. After the complaint was filed, the Authorized Representative of the complainant led his presummoning evidence by way of an affidavit 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 27.03.2009 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 16.12.2010 was given to the accused to which has pleaded not guilty and claimed trial and the matter was fixed for defence evidence as per judgment of Hon'ble High Court of Delhi in case titled as Rajesh Aggarwal Vs. State and Ors. 171 (2010) DLT 51.
Thereafter, Ld. counsel for accused moved an application U/s 145 (2) of Negotiable Instruments Act and the same was allowed as per mandate given by Hon'ble Supreme Court judgment dated 11.01.2010 (Mandvi Corporation Bank Vs. Nimesh B. Thakur) and the case was listed for cross examination of AR of the complainant. Case No. : 13064/09 3 / 17
4. In order to prove the case, Sh. Deepak Kumar Goyal, who was substituted as new AR of the complainant got himself examined and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence which is Ex. CW1/A. He got exhibited original cheque before the court as Ex. CW1/8 and the cheque returning memo as Ex. CW1/9, the legal notice of demand dated 23.02.2009 as Ex. CW1/10 and speed post receipt vide which the aforesaid notice was sent as Ex. CW1/11. He was crossexamined by Ld. Counsel for the accused. Thereafter, the complaint evidence was closed at request.
5. After that the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused Ms. Anil Kumari in which she admitted that he had taken a loan of Rs.1,50,000/ from the complainant for financing the flat in DDA Scheme in 2008. She has further stated that the cheque in question which is Ex.CW1/8 was issued by her in discharge of her partial legal liability. She has admitted the receipt of legal notice of demand from the complainant in Case No. : 13064/09 4 / 17 her statement U/s 313 Cr.PC.
6. Accused submits that she does not wish to lead defence evidence. Statement of Ld counsel for accused to that effect recorded separately. Thereafter, the case was fixed for Final Arguments.
Final arguments were lead on behalf of both parties. Ld. counsel for accused filed written arguments which were taken on record and a copy of the same was supplied to Ld. counsel for complainant.
Ld. counsel for complainant orally lead the final arguments on behalf of complainant. Complainant orally submitted that flat was alloted by DDA to the accused under "war widow" category under DDA Housing Scheme 2008. Later on, on inquiring DDA found out that accused is not a war widow and she has fraudulently applied under this category, therefore, DDA cancelled her allotment of flat and did not refund money.
This submission was not countered by Ld. counsel for accused and it is settled principle of law that fact which is not controverted, it is deemed to be admitted. Therefore, this submission of Ld. counsel for complainant is deemed to be admitted by accused. Case No. : 13064/09 5 / 17
7. I have heard Ld. counsels for both the parties and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
8. 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 demand within 30 days from the receipt of information by him from the Bank regarding the return of the Case No. : 13064/09 6 / 17 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 PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheque in question which is Exhibit CW1/8 is dated 18.02.2009 which got dishonoured vide cheque returning memo which is Exhibit CW1/9 dated 18.02.2009 which is not disputed by the accused clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque.
Case No. : 13064/09 7 / 17
10. DISHONOUR OF CHEQUE IN QUESTION In the instant case Sh. Deepak Kumar Goyal who has appeared as complainant witness has got exhibited the cheque returning memo which is Ex. CW1/9. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused.
Therefore considering the entire evidence on record it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 18.02.2009 which is Ex. CW1/9 with the reason " Funds Insufficient".
11. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Sh. Deepak Kumar Goyal who has appeared as complainant's witness has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 23.02.2009 which is Ex.CW1/10 and it was sent to the accused vide Speed Post receipt which is Ex.CW1/11. The accused in her statement U/s 313 r/w section 281 Cr.PC submitted that she had received legal notice of demand.
Case No. : 13064/09 8 / 17
I have perused the legal notice of demand it bears the correct address of the accused and the speed post receipt issued by the postal authorities in ordinary course is also on record. Moreover, the summons were served at the aforesaid address and the accused has put in appearance in compliance thereof. Moreover, the address furnished by the accused himself on his bail bond is the same address which is mentioned on the legal notice of demand sent to the accused.
Considering the evidence on record, I am of the considered opinion that the legal notice of demand was served upon the accused.
12. WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, the accused had applied for DDA Housing Scheme 2008 (Ex.CW1/3) and had sought Credit Limit Vide Loan application (Ex.CW1/4) of Rs. 1.50 lacs for the purpose of payment of earnest money while applying for the allotment of a flat.
Accordingly, the loan was granted and Arrangement Letter (Ex. CW1/5) was executed between the parties. As per the arrangement between the parties, the accused had to give 3 undated duly filled in Case No. : 13064/09 9 / 17 cheques, one for the loan amount & 2 cheques for the interest, before the disbursement of loan amount. The accused complied with all conditions of loan application & accordingly complainant sanctioned the loan.
The above facts are admitted by both the parties. Arrangement Letter (Ex.CW1/5) executed between the parties mentions the terms of repayment of loan as follows: In case of allotment: In the event of allotment of flat by DDA, the entire outstanding amount along with interest, cost & charges etc. is required to be adjusted within 15 days from the date of allotment through draw by the DDA. The successful allotee of houses may also opt to repay this loan from the proceed of housing loan if availed. In case of non allotment: The loan will be adjusted from the refund of earnest money by the DDA in the event of non allotment of Flat by the DDA. In case of other contingencies: In case application is rejected/cancelled on account of any reason, whatsoever, including due to non eligibility as per the laid down conditions in the DDA Housing Scheme2008 or due to the Case No. : 13064/09 10 / 17 reason that false documents/certificates etc. were produced/attached and the DDA forfeit any amount it shall be made good to the Bank by accused.
So, as per arrangement letter, liability to repay the loan would be of :
1. DDA If flat is not alloted.
2. Accused If flat is alloted or application was rejected/cancelled for any reason & DDA forfeits the amount.
The case of the complainant is that as the allotment of the flat was cancelled by the DDA, therefore, it is the duty of the accused to refund the loan amount of Rs. 1,50,000/. And when the complainant presented the cheque in question which is Ex.CW1/8, which was given by the accused as per the agreement between them for the refund of the loan amount, the same got dishonored.
The accused took two lines of defence, first one which she took while giving her statement U/s 313 r/w 281 Cr.PC was that the DDA has to refund the loan amount to the complainant and not her as she has not received the loan amount.
The fact that the flat was first allotted to the accused by DDA Case No. : 13064/09 11 / 17 under DDA Housing Scheme 2008 and later on allotment was cancelled was admitted by both parties. As flat allotment was cancelled, therefore, as per arrangement letter which is Ex.CW1/5, it is liability of accused to refund the loan amount and not that of DDA.
The second line of defence which was taken by the accused at the time of final arguments, while filing written submissions U/s 314 Cr.PC, was that cheque in question which is Ex.CW1/8 was given as a security cheque.
Before deciding this issue let us go through the relevant provisions of law.
Section 46 of the Negotiable Instruments Act speaks of the delivery, it reads as follows : "The making, acceptance or endorsement of a promisory notice, bill of exchange or cheque is completed by delivery, actual or constructive."
Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made.
(b) As to date that every Negotiable Instrument bearing a a date was made or drawn on such date.
Case No. : 13064/09 12 / 17
Moreover, there is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act.
The accused has herself admitted to have signed the cheques in question while answering to the question at the time of framing of notice U/s 251 Cr.PC. Further while answering to the question U/s 313 Cr.PC r/w section 281 Cr.PC the accused has admitted to have delivered the cheques in question to the complainant. Therefore, so far Case No. : 13064/09 13 / 17 as signing and delivery of the cheque in question by the accused is concerned the same is not disputed.
As to rebut the presumption of section 118 (b) of the Act and section 139 of Negotiable Instruments Act, accused has brought nothing on the record. Accused has failed to adduce any evidence during any stage of trial. In fact accused refused to lead any evidence in her defence.
It is no longer ResIntegra that mere averments by the accused without placing on record any cogent proof is not sufficient to rebut the mandatory presumption incorporated in the statute by enacting section 118 (b) and section 139 of NI Act.
Therefore, accused has failed to rebut the presumption under section 118 (b) and section 139 of Negotiable Instruments Act.
Further, loan was granted to the accused after entering into an arrangement with the complainant. One of the terms of the arrangement was that accused has to give three undated duly filled cheques, One for the loan amount and 2 cheques for the interest. Accused complied with these terms as reflected by Ex.CW1/3. Accused has voluntarily entered into this arrangement or contract with the complainant and as a part of consideration for receiving the loan Case No. : 13064/09 14 / 17 amount of Rs.1,50,000/, she gave three undated duly filled cheques. It was within the knowledge of the accused that in case flat is allotted to her or her application was rejected/cancelled for any reason by DDA or amount is forfeited by DDA, then the complainant will use these cheques. As accused has voluntarily entered into the arrangement with the complainant and as a consideration gave the cheque in question to the complainant, so that complainant can use it for the repayment of loan amount, whenever it becomes due on the accused. Therefore, accused has consented to the filling of date by the complainant on the cheque in question whenever repayment of loan amount become due on the accused.
As accused has consented to the use of cheque in question and it was within her knowledge that complainant will fill the date on the cheque in question whenever the repayment of the loan amount becomes due on her. Therefore, now accused cannot raise the defence that the cheque in question was given as a security cheque to the complainant and without her knowledge filled the date on the cheque in question.
Case No. : 13064/09 15 / 17
13. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case Sh. Deepak Kumar Goyal who has appeared as complainant's witness has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount and no question has been put to the AR in his cross examination so far as the payment of cheque amount by the accused is concerned. Further the accused has also submitted in her statement U/s 313 Cr.PC that she had filed a case in a consumer Court against the DDA and in case she receives the money from DDA then she will give it to SBI.
Further, throughout the trial, accused did not bring any evidence to show that she had made payment with respect to cheque in question.
Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand.
16. In view of the aforesaid discussion, I am of the considered Case No. : 13064/09 16 / 17 opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Ms. Anil Kumari W/o late Sh. Ranbir Singh stands convicted of the offence u/s 138 Negotiable Instruments Act.
Let the copy of this judgment be supplied to the accused. Announced in the open Court today i.e. 30.07.2011. (VIPIN KHARB) MM: DWARKA : 30.07.2011.
Case No. : 13064/09 17 / 17