Delhi District Court
Pradip Kumar Sharma vs . Pawan Kumar on 11 May, 2016
IN THE COURT OF MS. RAJAT GOYAL
METROPOLITAN MAGISTRATE (SOUTH) 01,
N I ACT, SAKET COURTS : NEW DELHI
CC No.1470/14
Pradip Kumar Sharma Vs. Pawan Kumar
1.Complaint Case No. : 1470/14
2. Name of the complainant : Pradip Kumar Sharma, son of Sh. B.L. Sharma, R/o House No. D 23/4, Tigri Extension, New Delhi110062
3. Name and address of the : Pawan Kumar, son of Sh.
accused Nanak Chand, R/o B101,
Tigri Extension, New
Delhi110062
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881
5. Plea of the accused : Pleaded not guilty and stated that cheque in question was given as security to one Asif Ali and not in discharge of legal liability.
CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 1 to 17
6. Final Order : Conviction
7. Date of Institution : 29.11.2014
8. Date of Reserving the : 05.05.2016 Judgment
9. Date of pronouncement : 11.05.2016 Brief statement of reasons for the decision (as mandated under Section 355 (i) Cr.PC .
1. Briefly stated, case of the complainant is that the accused approached the complainant for a friendly loan of Rs.2,00,000/ in first week of July, 2014. That the accused assured to return the same within a period of 3 months and also promised to pay an interest @ 12% per annum w.e.f. 15.07.2014 till actual date of the payment. That the complainant gave a friendly loan of Rs. 2,00,000/ to the accused in the first week of July, 2014. That in discharge of his legal liability, the accused issued one post dated cheque bearing number 314446 dated 18.10.2014 for an amount of CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 2 to 17 Rs.2,00,000/ drawn on his bank account maintained with Oriental Bank of Commerce (hereinafter referred to as the 'cheque in question') in favour of the complainant. That the cheque in question was returned unpaid upon presentation on account of 'Insufficient Funds' vide return memo dated 22.10.2014. That a legal notice dated 01.11.2014 was duly sent by the complainant to the accused in this regard, but to no avail. That the accused failed to pay the cheque amount within the statutory period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
2. Upon service of summons, appearance was put on behalf of the accused on 06.02.2015. Notice under Section 251 Cr.PC was served upon the accused on 01.12.2015, to which he pleaded not guilty and claimed trial. In his statement recorded under Section 263(g) Cr.PC, the accused stated that the cheque in question was given to one Asif Ali as security for a loan of Rs. 30,000/ taken by the accused from said Asif Ali and the accused did not know the CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 3 to 17 complainant. The accused further stated that the said loan was duly repaid by him. However, the cheque in question was not returned by said Asif Ali and the same has been misused by the complainant in connivance with Asif Ali. Thereafter, the accused was allowed to cross examine the complainant under Section 145(2) NI Act. After the closing of complainant evidence, the matter was fixed for recording the statement of the accused under Section 313 Cr.PC. In the said statement recorded on 01.03.2016, the accused stated that he never took any loan from the complainant and that the cheque in question was given to one Asif Ali as security for a loan of Rs. 30,000/ taken by the accused from said Asif Ali and the accused did not know the complainant. The accused further stated that the said loan was duly repaid by his brother Adesh Kumar alongwith interest @ 5% per month. However, the cheque in question was not returned by said Asif Ali and the same has been misused by the complainant. The matter was thereafter fixed for defence evidence. The accused closed his defence evidence on CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 4 to 17 17.03.2016 and the matter was fixed for final arguments. Evidence
3. In order to support his case, the complainant stepped into the witness box as CW1 and tendered his affidavit Ex.CW1/A into evidence wherein the averments made in the complaint were reiterated. He also relied upon various documents such as Ex.CW1/1 which is the cheque in question, Ex.CW1/2 which is the cheque return memo dated 22.10.2014, Ex.CW1/3 which is the legal notice dated 01.11.2014 and Ex.CW1/4, Ex.CW1/5 & Ex.CW1/6 which are the postal receipts and tracking report. The complainant also tendered into his evidence one document Mark A which he claims to be one loan agreement dated 05.07.2014 executed between himself and the accused. Thereafter, the complainant evidence was closed.
4. The accused, on the other hand, examined his brother Adesh Kumar as DW1 who stated that he had made CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 5 to 17 payment to one Asif Ali regarding a loan of Rs. 30,000/ taken by his brother from the said Asif Ali. No other defence witness was examined by the accused.
The law applicable
5. The law regarding the ingredients of the offence punishable under Section 138 N I Act is well settled. It was held by the Hon'ble Apex Court in the case of K Bhaskaran v. Sankaran Balan 1999 (7) SCC 510 that "offence under Section 138 of the Act can be completed only with the concatenation of a number of facts namely, (i) drawing of the cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; (v) failure of the drawer to make payment within 15 days of the receipt of the notice".
It was further held in the above mentioned case that "as the signature in the cheque is admitted to be that of the CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 6 to 17 accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption".
It was held by the Hon'ble Apex Court in the case of Rangappa v. Sri Mohan 2010 (11) SCC 441 that Section 139 of the Act is a example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It was further held that in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.
Arguments and appreciation of evidence
6. Ld. Counsel for the complainant has argued that all the requirements of Section 138 N I Act have been met with CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 7 to 17 in the present case and hence, the accused be convicted. Ld. Counsel for the accused has, on the other hand, argued that the cheque in question was not issued in discharge of legal liability and the same was rather given by the accused to one Asif Ali. Hence, it has been argued on behalf of the accused that the present case deserves to be dismissed. I have heard the arguments of both the sides and also gone through the record carefully.
7. Since the issuance of the cheque in question has not been disputed by the accused in the present case, presumptions under Section 118 read with Section 139 of NI Act about the cheque in question having been issued for consideration and in discharge of legal liability arise in favour of the complainant. The main defence taken by the accused in the present case is that the cheque in question was not given by the accused to the complainant, rather, it was given to one Asif Ali regarding a loan of Rs. 30,000/ taken by the accused from the said Asif Ali. It has further CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 8 to 17 been contended on behalf of the accused that the said loan of Rs. 30,000/ was duly repaid to Asif Ali by the brother of the accused namely Adesh Kumar. The accused has examined his brother Adesh Kumar as a defence witness in this regard. The said Adesh Kumar stepped into the witness box as DW1 and testified that he had repaid the loan taken by his brother (accused herein) from Asif Ali. However, the testimony of DW1 does not inspire much confidence for various reasons. First, the said DW1 Adesh Kumar is the real brother of the accused and, hence, the possibility of his deposing falsely in order to help the accused cannot be ruled out. Second, DW1 is only a hearsay witness to the alleged loan transaction between the accused and Asif Ali. It was stated by DW1 on oath that "in March, 2014 my younger brother took Rs. 30,000/ as loan from one Asif Ali who is resident of Sangam Vihar, New Delhi. After about 34 months I came to know about the aforesaid loan and that my brother had given 3 cheques to said Asif Ali as security". Hence, the testimony of DW1 in no way supports the CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 9 to 17 defence taken by the accused as he was not privy to the alleged loan transaction between the accused and Asif Ali. It must also be noted here that DW1 has stated that he had repaid the principal loan amount of Rs. 30,000/ alongwith interest @ 5%. However, when asked as to the amount of interest paid by him, DW1 stated that " I do not remember the exact amount of interest paid by me. I have not taken any receipt from Asif Ali while repaying the said loan". Inability of DW1 to tell the amount of interest paid by him to Asif Ali casts a shadow of doubt on his testimony. Also, in view of the defence taken by the accused, evidence of Asif Ali was probably one of the best pieces of evidence which could have been led by the accused in his defence in order to prove his innocence. However, the accused never made any effort to examine the said Asif Ali. Failure of the accused to examine the said witness or even take steps for his examination leads to drawing of adverse inference against the accused in accordance with Section 114 of Indian Evidence Act, 1872. It is also very pertinent to note here CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 10 to 17 that the accused, admittedly, never made any written demand from the said Asif Ali asking him to return his cheques, including the cheque in question, after repayment of the loan amount. If the defence taken by the accused was actually true, then the accused would have and should have issued written notice to the said Asif Ali regarding return of the cheques. Also, the accused would have issued stop payment instructions to his banker. However, nothing of this sort was done by the accused showing that the defence taken by him is a false one.
8. Another argument which has been advanced by the accused in the present case is that a statutory legal demand notice was not received by him. However, as per Ex.CW1/4, Ex. CW1/5 and Ex. CW1/6, the legal demand notice i.e. Ex.CW1/3 was duly sent to the accused at his correct address. As per provisions of Section 114 of Indian Evidence Act, 1872, read with Section 27 of General Clauses Act, the court may presume that the legal notice duly addressed to CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 11 to 17 the accused and dispatched to him by way of post was actually received by the accused, regard being had to common course of natural events. The onus to prove the non receipt of the legal notice was upon the accused. However, no evidence has been led by the accused to prove that the said legal notice was never received by him apart from his bare statement in this regard. Hence, I am of the opinion that legal notice Ex.CW1/3 was duly served upon the accused in the present case.
9. Ld. Counsel for the accused has also argued that the details on the cheque in question are not in the handwriting of the accused as the same was given blank signed security cheque. However, I do not find much merit in this argument. It was held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank v. Abhishek Mittal (Crl. A No. 294/2011 decided on 26.05.2011) that "there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 12 to 17 handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him". In the case in hand, it has been admitted by the accused that the cheque in question bears his signatures. It is not the case of the accused that his signatures on the cheque in question are forged and fabricated. Thus, once the accused has admitted his signatures on the cheque in question, the fact that other details on the said cheque are not in his own handwriting becomes immaterial and not of much consequence.
10. Ld. counsel for the accused has also argued that the complainant had stated in his testimony as CW1 that one loan agreement was also executed between the parties. However, the complainant failed to place on record the original loan agreement and has only filed one photocopy of CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 13 to 17 the same which is Mark A. It is contended on behalf of the accused that the failure of the complainant to place on record the original loan agreement itself shows that the case of the complainant is a false one. However, I do not find myself to be in agreement with this argument. It is correct that the complainant has not placed on record the original loan agreement. However, the said lapse of the complainant is not sufficient to destroy his entire as he has otherwise proved his case by proving all the essential ingredients of Seciton 138 NI Act. Thus, the onus was upon the accused to rebut the statutory presumptions arising against him. Only once the accused does that, can the complainant be asked to lead further evidence in support of his case in the form of some written document or loan agreement etc. However, in the present case the accused has failed to discharge the initial burden placed upon him of rebutting the statutory presumptions arising against him.
11. Another argument which has been advanced on behalf CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 14 to 17 of the accuse is that since the cheque in question was a post dated cheque, as admitted by CW1 in his testimony, the same cannot be held to be in discharge of legal liability. Reliance has been placed upon the case of M/s Indus Airways Pvt. Ltd.Vs. M/s Magnum Aviation Pvt. Ltd.. However, I do not find much merit in this argument of the accused. It was held by the Hon'ble High Court of Delhi in the case of M/s Collage Culture & Ors. Vs. Apparel Export Promotion Council & Anr. (2007) 99 DRJ 251 that "20. A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in present but payable in future. Under second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event.
21. The difference in the two kinds of postdated cheques would be that the cheque issued under first circumstance would be for a debt due, only payment being postponed. The latter cheque would be by way of a security.
22. The word 'due' means 'outstanding at the relevant CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 15 to 17 date'. The debt has to be in existence as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event". In the present case, the cheque in question was issued by the accused at the time of taking the loan. Hence, despite the cheque in question being a post dated one, it must be held that the same was issued in discharge of a subsisting liability and only the date of repayment of that liability was postponed to a future date by way of post dating the cheque in question. Reliance of the accused on the case of Indus Airways (Supra) is misplaced as the facts and circumstances of that case are different from the case in hand. Conclusion
12. In view of the above discussion, I am of the considered opinion that the complainant has established his case beyond reasonable doubt by proving all the ingredients CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 16 to 17 under Section 138 N I Act by leading cogent evidence and the accused has failed to probabilize his defence. The accused Pawan Kumar is hereby convicted for offence punishable under Section 138 N I Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict. Announced in the Open Court on 11.05.2016 (RAJAT GOYAL) Metropolitan Magistrate01 (South), NI Act Saket/New Delhi/11.05.2016 CC No. 1470/14 Pradip Kumar Sharma Vs. Pawan Kumar Page 17 to 17