Delhi District Court
Rallaram vs . Custodian Evacuee Property, Bombay, ... on 27 November, 2007
1
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
MM, KKD COURTS, DELHI
CC No : 725/07
Under Section : 138 N. I. Act
Police Station : Krishna Nagar
JUDGMENT :
1. Name of the complainant : Smt. Tripta Jaithly
W/o Sh. Dharam Chand
R/o 70A, Indra Park, Gali No. 12,
Som Bazar Road, Chander Nagar,
Delhi-51.
2. Name of the accused : Sh. Vishal Gupta
parentage & address S/o Sh. Hari Parshad
R/o 1488-89, Bhatia Bhawan,
Gali Peepal Wali, Nai Sarak,
Delhi-110 006.
And also at :
House No. : 38, Block-F,
Radhey Puri,Krishana Nagar,
Delhi-51.
3. Offence complained of : U/s. 138 N. I. Act.
4. Plea of the accused : Pleaded not guilty.
5. Final Order : Convicted
6. Date of institution of case : 31.08.2004
7. Final argument heard / : 19.11.2007
case reserved for order
8. Date of such order : 27.11.2007
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BRIEF REASONS FOR THE DECISIONS OF THE CASE :
1. The brief facts leading to file the present complaint are that the accused approached the complainant and requested for a friendly loan of Rs. 50,000/- for a week. The complainant was not inclined to give the amount as the accused failed to repay the previous loan. The accused stated that he was running in financial crises and in dire need of Rs. 50,000/-. The accused also stated that he would repay the previous loan amount back to the complainant in installments which the father of the accused being Karta / Manager of firm Ghasi Ram , Hari Parsad (HUF ) had taken from the complainant as well as from the husband of the complainant . The complainant gave the amount of Rs. 50,000/- on 15.5.2004 itself . At the same time, the accused issued the cheque bearing no. 611468 dtd. 20.5.04 drawn on Citi Bank, Delhi for discharge of his liability. On 20.5.04, the accused approached the complainant and requested the complainant to present the cheque after 31.5.04. The complainant presented the cheque for encashment on 3.6.04, but the same was received back unpaid with the remarks "
insufficient funds" vide cheque returning memo dtd. 3.6.04 of the accused banker and cheque returning memo dated 7.6.04 of the complainant banker. The accused was duly informed. The complainant sent a legal notice dtd. 2.7.04 through regd. A/D cover as well as UPC. The regd. A/D letter containing the notice dtd. 2.7.04 was received back with the postal remarks " on enquiry it was found that none is in the name of the addressee is there at the address" . Notice dtd. 2.7.04 sent under UPC was received back with postal remarks "left" . The complainant on enquiry came to know that accused has shifted his business from 1477, Nai Sarak, Delhi-110 006 to R/o 1489, Bhatia Bhawan, Gali Peepal Wali, Nai Sarak, Delhi-110 006. As the period of one month from the date of dishnour for giving notice was expired, the complainant again presented the cheque for encashment through her 3 banker on 15.7.04. The same was again dishonoured with the remarks "insufficient funds" vide cheque returning memo dtd. 15.7.04 . The intimation was given to the accused and the complainant sent a legal notice dtd. 27.7.04 under regd. A/D cover to the accused. On the regd. A/D cover, sent at House No. : 38, Block-F, Radhey Puri, Krishana Nagar, Delhi-51 , it was reported "without block number" and the other regd. letter sent at R/o 1489, Bhatia Bhawan, Gali Peepal Wali, Nai Sarak, Delhi-110 006, received back with the report that 'intimation delivered' . The notice sent through UPC not received back. The accused has not made the payment and the present complaint has been filed against the accused.
2. Notice U/S. 251 Cr.P.C. of the offence U/S 138 NI Act was served upon the counsel on 21.07.2005 by my Ld. Predecessor, which was read over and explained to the accused , who pleaded not guilty and claimed trial.
3. In post notice evidence the complainant has examined CW-1 Mr. Kiran Singh, Asstt. Post Master , Krishna Nagar Head Post Office, Delhi. This witness proved attested copy of the record as EX. CW-1/A and certificate issued by the Sr. Post Master , Krishna Nagar as EX CW
-1/B. This witness also stated that EX. CW-1/5 i.e. Postal receipt has been issued by the Krishna Nagar Post Office and UPC Receipt EX. CW-1/6 bears the stamp of Karkardooma Post Office. It is also stated that returned envelop under UPC which is EX. CW -1/7 bears the stamp of District Court , Karkardooma Court and the regd. letter EX. CW-1/8 was booked from the Krishna Nagar Head Post Office. The postal receipt were proved as CW-1/11 and CW-1/12 and UPC receipt was proved as EX. CW 1/13 and it is also stated that EX. CW-1/13 bears the stamp of Karkardooma Court Complex. It is also stated by the witness that EX. CW-1/14 and EX. CW-1/15 were booked by the post office, 4 Karkardooma Court Complex.
CW-2 is the complainant who has given the evdience as per the complaint and proved the cheque EX. CW-1/1, cheque returning memo were proved as EX. CW-1/2 and EX. CW -1/3 . Legal notice dtd. 2.7.04 , its regd. A/D receipt , its UPC receipt and returned UPC evenlop and regd. A/D envelop with A/D card were proved as EX. CW-1/4 to EX. CW-1/8 . Cheque returning memo dated 15.7.04 was proved as EX. CW-1/9. Legal notice dtd. 27.7.04 , its regd. A/D receipts , its UPC receipt and returned regd. A/D envelops were proved as EX. CW-1/10 to EX. CW-1/15.
CW-3 , Mr. M. P. Paliwal is the PRI, who has proved the letter of Dy. Chief Post Master as EX. CW-3/1.
CW-4 Mr. R. D. Sharma from Shahdara Post Office has proved list showing the booking of the regd. letter dtd. 28.7.04 as EX. CW-4/1 and relevant entries were proved as 2000/A and 1201/A. CW-5 Mr. P. K. Jain , Single Window Operator from State Bank of Bikaner and Jaipur appeared and proved the statement of account in respect of the complainant account as EX. CW-5/A.
4. After the completion of the complainant evidence, the statement of accused was recorded , in which the accused admitted to sign the cheque EX. CW -1/A and stated that firm Ghasi Ram , Hari Parsad (HUF ) was having dealing with the complainant and the complainant was in possession of the blank cheques issued by him.
5. The accused examined himself as DW-1 and stated that legal notice dated 2.7.04 was served upon him but legal notice dated 27.7.04 was never served upon him. The cheque was not given to the complainant and blank cheque was given to the husband of the complainant .
56. I have heard the Ld. counsel for complainant and accused , perused the record carefully and given my thoughtful consideration to the argument addressed by Ld. counsel for parties.
7. Counsel for complainant contended that cheque was given by the accused in discharge of the debt and cheque was dishonoured when it was presented. The accused not made the payment despite receiving the legal notice. It is prayed that the accused be convicted and adequate compensation be granted to the complainant .
On the other hand, Ld. Counsel for accused contended that legal notice dated 27.7.04 was never served upon the accused. The complaint was not filed after sending the legal notice dated 2.7.07. It is prayed that accused be acquitted. It is also contended by counsel for accused that complainant admitted to give loan to firm Ghasi Ram , Hari Parsad (HUF ) in cross examination.
8. The accused has admitted to sign on the cheque EX. CW- 1/A. There is no dispute about the execution of the cheque , its presentation and dishonour.
9. The first contention of the counsel for accused is that accused has not taken any loan from the complainant and the cheque was given in blank to the husband of the complainant. In the statement of accused , the accused stated that complainant was in possession of the blank cheque issued by him and of the firm Ghasi Ram , Hari Parsad (HUF ) . The accused has not made clear as and when he had given the cheque to the husband of the complainant . In cross examination, the accused has admitted that the complainant and her husband filed civil suit against firm Ghasi Ram , Hari Parsad (HUF ). It is also stated that he does not know if firm Ghasi Ram , Hari Parsad (HUF ) has paid any amount or not after an order directing the firm Ghasi Ram , Hari 6 Parsad (HUF ) , to pay a sum of Rs. 4,50,000/-. The accused stated that he cannot tell when he handed over the cheque to the husband of the complainant and the cheque was given approximately three and a half year back. The statement of accused was recorded on 24.9.07 and if we count the period of three and a half year back, it comes in the starting of year 2004. As per the complainant , the amount was given on 15.5.04. The accused also admitted that cheque EX. CW -1/A is in his name and was not issued on behalf of firm Ghasi Ram , Hari Parsad (HUF ). The complainant in the cross examination recorded on 24.1.07 has clearly stated that accused has taken the loan on 15.5.04 . In cross examination recorded on 29.6.07, the complainant has clearly stated that he gave the amount of Rs. 50000/- to the accused and she gave the loan to the accused in May 2004.
10. The accused has not lead any cogent evidence to prove that the cheque was given to the husband of the complainant . Even if we admit the version of the accused even then it is not helpful to the accused as accused has clearly admitted that firm Ghasi Ram , Hari Parsad (HUF ) had taken loan from the complainant and her husband. Thus, accused has not able to prove that amount was not received by him from the complainant whereas complaint is able to prove that amount of Rs. 50,000/- was received by the accused on 15.5.2004.
11. The next contention of the counsel for accused is that complainant has not filed the complaint on the basis of the legal notice dated 2.7.04 and it is also contended that complainant also admitted in her cross examination that legal notice dtd. 2.7.07 was received by the accused. Admittedly the complainant has not filed any complaint on the basis of legal notice dated 2.7.2007. The complainant has again presented the cheque and sent another legal notice dtd. 27.7.04 and filed the present complaint. It is contended that complaint is not maintainable on 7 the basis of 2nd legal notice as the complainant had not filed any complaint on the basis of the 1st legal notice dtd. 2.7.07. Reliance was paid in this regard on 93 (2001) Delhi Law Times, page 225 , wherein it is held that "three demand notice were sent to the accused pertaining to the same cheque , the complainant did not file complaint on the 1st cause of action. The complainant is disentitled to create another cause of action to file complaint for launching prosecution on it. The complaint based on 2nd notice instead of 1st notice not legally maintainable and deserves to be quashed." But this judgment is not helpful to the accused as in the judgment cited by the Ld. Counsel for the accused, the accused received all the three legal notice and the complainant not filed complaint on the basis of the first two legal notice and filed complaint on the basis of the 3rd legal notice. In the case in hand, the legal notice dtd. 2.7.04 was sent to the accused thru. Regd. A/D receipt and UPC receipt EX. CW-1/5 and EX. CW-1/6 . The regd. A/D cover received back with the report that "
on enquiry it was found that none is in the name of the addressee is there at the address" and on the UPC cover, it is reported by the postal authority "left".
The CW -1 Kiran Singh has proved the receipt EX. CW-1/5 and EX. CW-1/6 and also proved the returned regd A/D envelope and UPC envelope as EX. EX. CW-1/7 and EX. CW-1/8. CW -1 Kiran Singh also proved the the copy of record EX. CW-1/A and certificate issued by the Sr. Post Master, Krishna Nagar Post Office as EX. CW-1/B. Thus, the regd. A/D cover and UPC cover in which the legal notice dtd. 2.7.04 was sent, were received back by the complainant . The accused in his statement stated that he has received the legal notice dtd. 2.7.04 thru UPC mode and in the next birth, he stated that he cannot show the UPC cover and copy of legal notice and he can try to trace the same if the same is treaceable. As the UPC envelope is placed on record, it cannot be held that the accused has not received the legal notice dtd. 2.7.04. The complainant has placed on record the coy of the legal notice dtd. 27.7.04 8 as EX. EX. CW-1/10 its postal receipt and UPC receipt as EX. CW-1/11 to EX. CW-1/13 . On the regd. A/D cover which is EX.CW-1/15, sent at R/o 1488-89, Bhatia Bhawan, Gali Peepal Wali, Nai Sarak, Delhi-110 006 , it is reported by the postal authority that intimation has been delivered on 30.7.04. The accused in his cross examination has admitted that firm Ghasi Ram , Hari Parsad (HUF ) is still functioning and its address is R/o 1489A, Bhatia Bhawan, Gali Peepal Wali, Nai Sarak, Delhi-110 006 and the firm has changed its address 6 year back . It is also admitted that firm has changed his address and the earlier business address of the accused was 1477 , Nai Sarak, Delhi. As per report on regd. A/D envelop EX.CW-1/15, the intimation was given. The UPC cover was not received back and it can be held that UPC cover was received by the addressee as CW-1 Mr. Kiran Singh, has proved the regd. postal receipt and UPC receipts as EX.CW-11 to EX.CW-1/13. It is also stated by this witness that EX.CW-1/13 bears the stamp of karkardooma Courts Complex. The counsel for the complainant has paid reliance on 2001(1) C. C. Cases (SC) 143 : wherein it is held that , it is not giving of notice which makes out the offence but it is receipt of notice by drawer which givens cause to complainant to file complaint within statutory period. The reliance was placed on the other judgment of Hon'ble SC case titled as K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. [1998 (7) SCC 510]. In this case the Hon'ble Apex Court has considered the difference between 'giving' of a notice and 'receipt' of the noitce and held that : 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process. In this case law, it is also held that " if a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the 9 legal consequences of Section 138 of the Act. It is also held by the Hon'ble Apex Court in Sadanandan Bhardan v. Madhavan Sunil Kumar [1998 (6) SCC 514] that clause (a) of the proviso to Section 138 did not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity and if presentation of cheque and its dishonour a fresh right and not cause of action accrues. In the case in hand also, no cause of action accrued to the complainant as legal notice dated 2.7.04 was not received by the accused. The counsel for the complainant also paid reliance on 2005 (3) criminal court cases 189 (Kerala) wherein it is held that 'the notice sent to the addressee received back as addressee left the address, the complainant presented the cheque again and complaint on the basis of the dishnour of cheque on the 2nd time is maintainable and when notice issued at the first instance there was no 'giving of notice' and 'receipt' of the same and there was no accrual of cause of action'. In this case law, the Hon'ble Court has discussed the cases Sadanandan Bhardan v. Madhavan Sunil Kumar, 1998 (3) Civil Court Cases 202 (S. C.): 1998 (2) Apex Court Journal 267 ( S. C.) : (1998) 6 SCC 514. The fact of this judgment is fully applicable to the case in hand. Thus, this contention of the counsel for accused carries no force.
12. In law U/s. 139 of N. I. Act there is a presumption in favour of the complainant that the cheque was issued in discharge of liability . Section 118 of the Act provides certain presumptions to be made as to negotiable instruments. Section 118 of the Act provides that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred for consideration. Section 118 of the Act also presumes that every negotiable instrument bear a date was made or drawn on such date. Accordingly the presumption under Section 118 is one of law and thereunder a Court shall 10 presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. Reliance is placed upon the case of Kundal Lal Rallaram Vs. Custodian Evacuee property, Bombay, AIR 1961 Supreme Court 1316.
13. Once this presumption is there in favour of the complainant, it is for the accused to rebut the said presumption in law. The next question which arises is as to what is the degree of proof required to rebut the presumption in such cases. The said rebuttal cannot be by way of mere denial of liability for issuance of cheque . The said rebuttal has to be by way of proof adduced in the court in evidence to the satisfaction of the court. Therefore, the burden to prove that the negotiable instrument was not for consideration lies upon the accused in a prosecution under Section 138 Negotiable Instrument Act.
14. In the case of Habballapa Dungappa Katti & Ors. Vs. State of Karnataka 2001 (3) Crimes 218 (SC) and in the case of Y. Sreelatha @ Raja Vs. Mukundchand Bothra 2202 (1) All India Banking Law Judgments 87 at para 31, it was held that the words 'unless the contrary is proved' contained in Sections 118 and 139 of the negotiable instruments Act would make it clear that the presumption has to be rebutted by proof and not by a bare explanation, which is merely plausible. Unless the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to the rebutted. Hon'ble Supreme Court in Hiten P. Dalal Vs. Bratindra Nath Banerjee 2001 (Crime) 220 has already held that the onus is on the accused to prove by leading cogent evidence that cheque in question was not issued in discharge of any debt or liability.
1115. In view of above discussions, I am of the opinion that accused has failed to rebut the presumption U/s. 138 N. I. Act and case has been proved by the complainant within all the requirements of section 138 N. I. Act. Accordingly accused is convicted for this offence. Put up for arguments and orders on the point of sentence on 29.11.2007.
Announced in the open court (NARESH KUMAR MALHOTRA) on 27th of November , 2007 Metropolitan Magistrate Karkardooma Courts, 12 IN THE COURT OF SH. NARESH KUMAR MALHOTRA, MM, KKD COURTS, DELHI CC No : 725/07 Under Section : 138 N. I. Act Police Station : Krishna Nagar 29/11/2007 :
ORDER ON SENTENCE Present:-. Mr. Ashok Mahajan and Mr. Sunder Lal, counsel for complainant with complainant in person.
Mr. Bharat Sharma, counsel for convict.
It is stated by the counsel for complainant that accused issued the cheque knowingly well that the cheque will be dishonoured and it is prayed that stern action be taken against the convict and adequate compensation be granted in favour of the complainant .
On the other hand, counsel for the convict Mr. Bharat Sharma contended that convict is aged about 26 years and is not involved in any other case. It is prayed that lenient action bet taken against the convict.
Keeping in view that cases of dishonour of cheque are on high rise in the society and complainant is aged about 56 years old and she has no son and only one daughter who is married, I am not inclined to take a lenient view against the convict . But, seeing the age of convict and taking into consideration that he is a student of MCA , correspondence court, the convict is sentenced to SI for six month and a compensation of Rs. 1,00,000/- is granted in favour of complainant . In default to pay compensation, the convict will further undergo SI for one and a half month.
At this stage, an application U/s. 389 Cr. P. C. has been 13 moved on behalf of accused for suspension of the sentence to enable him to file appeal against this order. Heard. The application is allowed. The aforesaid sentence is suspended till 20.12.2007 as winter vacation will start from 23.12.07 to enable the convict to do the needful and till then convict is admitted to bail on his furnishing personal bond of Rs. 10,000/- with one surety in like amount. Bail bond furnished and accepted till 20.12.2007.
Announced in the open court (NARESH KUMAR MALHOTRA ) on 29th of November,2007 Metropolitan Magistrate Karkardooma Courts 14 15