Delhi District Court
Shri Charanjit Singh Walia vs . on 2 May, 2014
IN THE COURT OF SHRI SATVIR SINGH LAMBA, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Shri Charanjit Singh Walia
S/o Shri S.Balwant Singh Walia,
R/o XVI/325-B, Khajoor Road,
Karol Bagh, New Delhi. ......Complainant
Vs.
Shri Manjit Singh Pawar,
R/o T-618, Hill Lane, Baljit Nagar.
New Delhi. ........Accused
JUDGMENT
Complainant Case No. : 1112/1 Date of institution : 24.11.1997 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Conviction Date of Decision : 02.05.2014 Brief Facts
1. Brief facts of the present case are that the accused is the friend of the complainant and had taken a friendly loan of Rs.25,000/- from the complainant and another sum of Rs.25,000/- from his wife on 20.05.1996 for the marriage of his daughter Yadvinder Kaur which took place on 1st June 1996. The invitation card of marriage of daughter of accused is Ex.CW1/1. It is further alleged that in order to discharge the said liability accused had issued a cheque bearing no.633376 dated CC No.1112/1 Page No.1/11 17.09.1997 drawn on Bank of America, 15, Bara Khamba Road, New Delhiin favour of complainant and same is Ex.CW1/2. The complainant presented the cheque in question for encashment through his banker but the same were got dishonored by the banker with the remarks "insufficient funds" vide returning memos i.e Ex.CW1/3 to Ex.CW1/6. Henceforth, the complainant issued the mandatory legal notice U/s 138 NI Act dated 21.10.1997 i.e. Ex.CW1/7 and the same was served upon the accused vide registered AD and UPC same are Ex.CW1/9. The reply sent by the accused to the legal notice is Ex.CW1/8.
2. When the accused failed to fulfill the conditions of the said legal notice Ex.CW1/7 within 15 days of its presumed service, then the complainant has filed the present complaint case U/s 138 of Negotiable Instrument Act 1881 (hereinafter the Act) against the accused.
Pre-Trial Procedure
3. After the institution of the present complaint, the complainant adduced his pre summoning evidence U/s 200 Cr. P.C. on which basis the accused was summoned via order dated 07.04.2003 to face trial for the offence U/s 138 NI Act. After the service of the summons, the accused entered his appearance whereupon the provisions of Sec. 207 Cr. P.C. were also complied.
4. The accused was admitted to bail then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon the accused on 21.11.2009 after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty" and claimed trial.
Trial
5. In order to substantiate his case, the complainant examined himself as witness as CW-1 and also examined Smt. Sarabjit Kaur as CW-2 whose contents are a mere repetition of what had already been discussed under the "Brief Facts" and CC No.1112/1 Page No.2/11 hence are not repeated for the sake of brevity. Both the witnesses were duly cross- examined by the accused and thereafter the CE was closed vide order dated 09.05.2013.
6. All the incriminating circumstances, appearing in the evidence against the accused were put in order to unable her to offer his explanation.
7. In his explanation u/sec 313 Cr.P.C r/w sec 281 Cr.P.C, the accused stated that he is not liable to pay the cheque amount to the complainant as alleged in the present case. He further stated that his two sons namely Bhupender Singh and Parmender Singh were in job of M/s Walia Motors being run by the complainant. He further stated that cheque in question was given by him to the complainant for financial assistance to increase the business activities on the request of complainant at his residence and same is without any consideration. He further stated that complainant assured him to give collateral security in lieu of proposed financial assistance but no such collateral security was given to him. Lastly, accused stated that he is innocent and is falsely implicated in the present case by misusing the cheque in question with intention to gain wrongfully.
8. In support of his DE accused examined Shri Bhupinder Singh, as DW1. DW1 was duly cross examined by the complainant. Thereafter, DE was closed vide oder dated 01.02.2014 whereupon the trial came to a conclusion and the contesting parties were duly heard.
Facts in Issue
9. In order to have the positive outcome in his favour, the complainant was required to show that the cheque Ex.CW1/2 was given by the accused to discharge his liabilities which was dishonoured via returning memo's whereafter the accused had also failed to comply with the requirements of the legal notice Ex. CW1/7.
10. On the other hand, the accused was required to show his defence on the scale of preponderance of the probabilities that he is not liable to the amount CC No.1112/1 Page No.3/11 involved to the complainant.
Legal Prepositions
11. The presumptions provided U/s 118 NI Act and 139 NI Act would come to the rescue of the complainant once the execution of the cheque in question is proved on record.
12. As per section 118 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was given against consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per Sec. 139 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability (Refer :- "Rangappa Vs. Sri Mohan" SLP (Crl.) 407/06, Dated:- 07.05.2010).
13. It is well settled that both the aforesaid presumptions U/s 118 & 139 NI Act are rebuttable in nature and the onus to rebut the same squarely rests upon the accused.
14. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record (inclusive of complainant's evidence and defence evidence, if any), that the complainant was a liar, that their was no existing liabilities between the parties and that the cheque in question was misused. It must be kept in mind that once evidence is brought on record from both sides, it becomes an evidence of the case and court can draw inferences from the said entire evidence either in favour or against any of the parties. Evidence is a complainant's evidence and accused's evidence only for the purposes of identifying it, but once it is adduced in the case, it becomes the evidence of the case and then the same has to be read as a whole. The court can not read the evidence of the complainant only to the extent it favours the complainant and overlook the remaining evidence which supports the accused merely on the CC No.1112/1 Page No.4/11 ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the court can draw inferences either in favour of the complainant or against the accused. The accused has a right to argue his case even on the basis of the cross examination of the complainant & his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order to rebut the legal presumption in question, it emerges that the accused need not require direct evidence to disprove the existence of consideration.
15. Preponderance of probabilities is the standard of proof upon the accused to rebut the above presumptions, which is not as high as that of the prosecution whereby the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
Appreciation of Evidence
16. Complainant lays foundation of his case on the ground that a friendly loan was given to the accused on his asking. The cheque in question was issued by the accused in order to discharge of above said liability which was got dishonored due to the reason insufficient funds. Thereafter, inspite of receiving legal notice accused failed to pay the amount involved in the present complaint.
17. In his cross examination, CW1 stated that the loan amount was given to the accused in cash. CW1 further stated that Bhupender Singh and Parminder Singh had never worked with him. Complainant admitted that sons of the accused gave him the marriage invitation of the daughter of accused, but explained that he had not gone to the said marriage ceremony solemnized on 01.06.1996. However, all the suggestions put to him by the accused were denied.
18. Complainant further examined his wife Sarabjit Kaur as CW2. In her CC No.1112/1 Page No.5/11 cross examination CW2 admitted that accused was having visiting terms with them. CW2 further stated that she is not income tax assessee. CW2 further admitted that she is not having any money lending licence. CW2 denied of having knowledge regarding the working of sons of accused with his husband in the year 2007. CW2 explained that the accused had taken the loan for the purpose of marriage of his daughter and cheque in question was given by the accused at their residence. However, all the suggestions put to her by the accused were denied.
19. The defence set up by the accused in the present case is that he has not availed any friendly loan from the complainant and the cheque in question alongwith another cheque was given to the complainant/his wife for financial assistance of Rs.50,000/- for which the complainant was supposed to give collateral security to the accused and same was not given to him.
20. In order to prove his innocence accused examined his son Bhupinder Singh as DW1. DW1 stated in his chief examination that he used to work with the complainant in the sale purchase of the vehicles on commission basis of 50% share. DW1 further stated that the accused had given two cheques to the complainant and his wife for the purpose of collateral security for the purchase of additional vehicles to increase the profit share. DW1 further stated that the complainant had obtained the cheque in question from their house when he visited their house alongwith one another person. DW1 further stated that the complainant had not returned the amount of collateral security thats why the accused stopped the payments of the cheque in question. Mark A is the delivery receipt regarding purchase of vehicle.
21. In his cross examination DW1 stated that they are three brothers and one sister. DW1 admitted that his sister was married in June 1996. DW1 do not remember the details of the said two cheques but explained that same were of Rs. 25,000/- each and were duly filled up but were undated. DW1 stated that he was partner in M/s Walia Motors. DW1 further admitted that the wife of the complainant had never demanded financial assistance from him and explained that she proposed for the joint investment for the enhancement of business two months prior to the giving of cheques in question by the accused. DW1 further admitted that he has not given any cash to the complainant for the enhancement of business. DW1 explained CC No.1112/1 Page No.6/11 that he had given investment amount through two cheques drawn on Bank of America, Barakhamba Branch, Delhi and admitted that the said two cheques were never encashed at any point of time. DW1 further explained that the amount of collateral security was of Rs.50,000/-. DW1 further admitted that mark A does not bear his signatures and explained that same is a delivery receipt only. However, all the suggestions put to him by the counsel for complainant were denied by DW1.
22. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheque in question was signed by the accused which was dishonoured vide memo and despite the legal notice accused did not make the payment. It is argued that during the cross examination of complainant nothing material has come out and the complainant has been able to prove his case. It is further argued that accused has failed to discharge the burden upon her to rebutt the presumption in favour of the complainant under the Act.
23. Now the question is whether the complainant proved his case, that whether the amount was legally enforceable debt. Offence under Section 138 of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of cogent evidence.
24. Ld. Counsel for accused has argued that accused is having no legal liability towards the complainant because he has not taken any loan from the complainant. In the present case, the cheque in question was given by the accused to the complainant for financial assistance to increase his business activities and same was without any lawful consideration. Ld. Counsel for accused further submits that the complainant has misused the cheque in question with the malafide intent to harass the accused.
25. Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence/evidence on preponderance of probabilities to prove that cheque in question CC No.1112/1 Page No.7/11 was not supported by consideration and that there was no debt or liability to be discharged by him. However, there is no need that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.
26. From the material on record it is established that the complainant and accused are known to each other. It is further established on record that the cheque in question is pertaining to the account of the accused. It is further established on record that the cheque in question issued by the accused got dishonored vide bank memo. The signatures on the cheque in question is not disputed by the accused at all. The receiving of the legal notice sent by the complainant for dishonoring of cheque in question is also not disputed by the accused. But the accused had specifically denied the issuance of cheque in question in favour of complainant in the manner as alleged in the present complaint case.
27. In the present case, the accused explained that he has not availed any friendly loan from the complainant or from the wife of complainant. The plea of defence raised by him is that the cheque in question was issued to the complainant for the purpose of enhancement of their business activities. The DW1 has admitted in his examination that the wife of complainant had never approached him for any financial assistance. DW1 has stated that he was working with the complainant who was doing the business in the name and style of M/s Walia Motors. DW1 has further stated that he was the partner of M/s Walia Motors on commission basis of 50% shares. However, neither the accused nor the DW1 had furnished on record an iota of evidence to show that the DW1 was the partner in M/s Walia Motors or had worked with the complainant at any point of time.
28. The DW1 has explained the amount of collateral security was of Rs. 50,000/- and he had given the investment amount to the complainant through two cheques drawn on Bank of America, Bara Khamba Branch, New Delhi. At the same CC No.1112/1 Page No.8/11 time DW1 admitted that the said two cheques had never been encashed at any point of time. Further, the testimony of DW1 is not believable particularly about the giving of cheque in question by the accused to the complainant regarding the place of handing over the cheque. The DW1 has not disclosed the name of the person who was allegedly accompanied with the complainant as alleged by him. Further, giving of friendly loan for a once does not amount to the running of business of money lending.
29. The contention raised by the accused that the complainant had denied of having acquittance with the accused is not material keeping in view the pleas of defence raised by him. On the one hand the accused is raising plea that his two sons were doing work with the complainant. Further, the contention raised by the accused that the complainant has not furnished any document, receipt for the giving of loan amount to the accused as well as that the complainant was not in position to give the financial assistance to the accused due to his weak financial status does not hold water keeping in view the presumption in favour of complainant as per NI Act. At the same time accused is admitting the issuance of cheque in question to the complainant, so there is no weight in the contention that the accused is not known to the complainant. The plea of defence raised by the accused is that two of his sons were working with the complainant who was running his business in the name and style of M/s Walia Motors which is contrary to his above said submissions. Further, the accused has not furnished on record any document or evidence to show that the complainant was not in position to advance a very small friendly loan of Rs.25,000/- to the accused.
30. The defence of the accused is that he is having no legal liability towards the complainant. In the present case the defence taken by the accused is that the complainant had misused the cheque in question. Mere version of accused is not helpful in any manner to prove the defence taken by the accused. It is not disputed that accused has neither lodged any complaint/report against the complainant nor has filed any civil or criminal case against the complainant pertaining to the cheque in question. It is very material fact and ought to have been brought to the knowledge of appropriate authorities. Even otherwise, it may be seen that no complaint has been made to any authority against the alleged misuse of the cheque in question nor CC No.1112/1 Page No.9/11 matter has been brought to the notice of the complainant at any point of time. Therefore the plea as set up is only after thought and is having no factual basis and is an afterthought.
31. The plea and the defence taken up by the accused that the undated cheque had been given by him to the complainant is of no consequence. The accused has admitted the signatures on the cheque in question. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. The accused has not denied his signatures on the cheque in question. Once he has admitted his signatures on the cheque in question he cannot escaped from his liability on the ground that same has not been filled up by him. When a undated cheque in signed and handed over it means that the person signing it, has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issued a blank/undated cheque is supposed to understand the consequences of doing so he cannot escaped his liability only on the ground that blank cheque had been issued by him. This shows that cheque had been issued to discharge the alleged liability.
32. Therefore, mere pleading not guilty and stating that the cheque was misused, would not amount to rebutting the presumption raised under Section 139 of N.I Act. In the present case accused has not produced any cogent proof in support of the defence version that the cheque in question was not given to the complainant which makes it improbable that the cheque in question was not issued towards the discharge of legal liability as alleged by the complainant but at the same time strengthens the foundation fabrics of the present complaint case. In the present case, the accused failed to raise a cogent suspicious circumstances in the version of the complainant which belies the foundation of the present complaint case. Further, nothing has been proved by the accused to show that the cheque in question was misused by the complainant and that he did not have the legally enforceable liability towards the complainant.
Conclusion CC No.1112/1 Page No.10/11
33. Having considered the testimonies the issuance of cheque was not in dispute which was dishonored by bank returning memo. Accused is served with legal notice through registered post within the stipulated period and despite that no pay- ment has been made by her.
34. Reading of the evidence on record in its entirety, would show that the evidence is not supportive with the innocence of the accused and as such same is li- able to be dismissed out rightly. Secondly, accused has not produced any cogent proof in support of his defence on record. This court is of the opinion that the defence set up is neither definitive nor consistent with innocence of the accused. It is liability of the accused to bring positive evidence, in the wake of denying the liability by bringing evidence showing that accused has no liability towards complainant in the present complaint. It was sole burden and duty of the accused to prove no liability by raising probable defence when he was defending presumption, which was supporting the dis- honoured cheque. The accused has failed to discharge the onus.
35. For rebutting the presumptions under the 'Act', a just need is to raise a probable defence. However, in the present case accused not only failed to show pre- ponderance of probability in her favour but also not succeeded in discharging her ini- tial burden for rebutting the presumption under the NI Act by not leading any cogent evidence in her support. Thus, this court unhesitatingly holds that the accused has not been able to rebut the presumptions under section 139 and 118 NI Act standing in favour of complainant.
36. Having considered the entire evidence, complainant successfully proved all the essential requirements of Section 138 of the Act. Accordingly, accused is guilty for committing the offence punishable u/s 138 of the Act, she is hereby con- victed for the offence under section 138 of the Act. Let she be heard on point of sen- tence separately.
Announced in open court on SATVIR SINGH LAMBA
2nd Day of May 2014 MM-01(NI ACT)WEST/DELHI
CC No.1112/1 Page No.11/11