Delhi District Court
Ajit Pal Singh vs Gulshan Kumar Jagga on 22 December, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII
CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS : DELHI.
AJIT PAL SINGH VS GULSHAN KUMAR JAGGA
CC/RBT No.: 454/G/14
U.I.D. No. : 02402R0473882007
U/s. : 138 N.I. Act
P.S. : M.S PARK
J U D G M E N T
1 Sl. No. of the case : 454/G/14
2 Date of institution of the case : 17.3.2009
3 Name of the complainant : Sh. Ajit Pal Singh
Name of accused, parentage & : Gulshan Kumar Jagga s/o Sh. Address Behari Lal Jagga r/o A25, Ram Prastha, Shahibabad, 4 Ghaziabad U.P. Offence complained of or : U/Sec. 138 N.I Act. 5 proved 6 Plea of the accused : Pleaded not guilty 7 Date reserved for order : 20/12/2014 8 Final order : CONVICTED 9 Date of Judgment : 20/12/14 Facts as borne out from the complaint are as follows :
1. By filing present case complainant contended that accused is known to the complainant for the last many years. In the month of December 2005 the accused approached to complainant and borrowed a sum of Rs.85,000/(Rupees Eight Five Thousand only) from the complainant as a friendly loan without interest for CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 1 2 a period of one year and he assured the complainant that he would repay the said loan amount before December 2006. When accused failed to keep his words in repaying the said loan amount to the complainant within stipulated period of one year, in the month of January 2007 complainant approached to the accused and demanded his money back, on this the accused showed his unability to return the loan amount and he in response to the repayment of the said loan amount, issued one cheque bearing No. 829643 dt. 10.1.2007 amounting to Rs.85,000/ drawn at Standard Chartered Bank, Connaught Place, New Delhi and accused assured/promised the complainant that same will be encashed as and when present or deposite to the bank. Acting on this assurance and promise, complainant had accepted the said cheques.
2. Complainant presented the cheque bearing No. 829643 dt.
10.1.2007 amounting to Rs.85,000/ with the banker, which is Ex.PW.1/A, same were returned back uncashed with remarks "
INSUFFICIENT FUNDS" vide memo dt. 12.1.2007 which is Ex.PW.1/B.
3. Immediately the complainant approached the accused and narrated the entire fact of dishonour of said cheque. On this accused felt apology and requested the complainant to present the said cheque after some time and within this period he would deposit the sufficient funds in his account. Accordingly CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 2 3 complainant again presented the said cheque with the banker but it was again dishonoured with the remarks "INSUFFICIENT FUNDS" vide returning memo dt. 02.02.2007 which is Ex.PW.1/C and finally it has been returned on 10.5.2007 which is Ex.PW.1/D.
4. The complainant made a demand for the payment of the said amount of money by giving a demand/legal notices dated 26.05.2007 Ex.PW.1/E to accused through regd. AD post Ex.PW.1/F and UPC Ex.PW.1/G. But despite service of legal notices, he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice resulting into filing of three complaint cases U/s 138 of the Negotiable Instrument Act, 1881 (hereinafter "the Act") against the accused.
5. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C was led by the complainant. After considering the material and the presummoning evidence on record, the accused was ordered to be summoned vide order dated 07.7.2007 to face trial for the offence under section 138 Negotiable Instruments Act, 1881.
6. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C. for the offence under section 138, Negotiable Instruments Act, 1881 was served upon him on 10.12.2009 to which he CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 3 4 pleaded not guilty and claimed trial.
7. After service of notice upon the accused under section 251 Cr.P.C.; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got himself examined as the sole witness. The complainant's evidence was closed on 03.05.2013.
8. After conclusion of complainant's evidence, statement of accused was recorded on 16.05.2014 under Section 313 Cr.P.C. wherein the accused stated that he had given the blank cheque to the complainant duly signed as security purpose for getting loan of Rs. 10,000/ through complainant from some body known to him but complainant has misused the cheque by filing false complaint against him even without getting the loan to him. The accused opted to lead defence evidence and examined himself as DW1 and thereafter DE was closed on 26.09.2014.
9. I have heard the rival submissions at Bar and have gone through the records of this case.
10.To constitute an offence under Section 138 N. I. Act it has to be proved that:
a) there was a legally enforcible debt.
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 4 5 insufficiency of funds.
d) that the demand notice was duly served on the accused and despite that he failed to make payment.
11.The Negotiable Instruments Act, 1881 raises two presumptions;
firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions, both under Sections 118(a) and 139 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
12.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 5 6 beyond reasonable doubt. However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647. It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana Menon Vs. State of Kerala AIR 2006 SC 3366 can be fruitfully referred to.
13.Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge of a debt or liability is a mandate of law, though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 6 7 APPRICIATION OF FACTS,EVIDENCE AND ARGUMENTS
14. Prior to proceed further it is not out of mention here that at the time of notice framed u/sec. 251 Cr.P.C. vide dt. 10/12/2009 case was contested by the accused on the ground that he has not received legal notice Ex.CW1/E while pleading not guilty and during crossexamination of CW1/complainant defence has been developed that accused has not taken loan in the year 2007 but he has taken the loan in the year 2005. Further accused never taken any loan of Rs.85,000/ from the complainant/CW1 and accused has not issued any cheque of Rs.85,000/ towards charging the debt. It is contended that complainant has taken a blank signed cheque from the accused for security of his commission for getting him a loan of Rs.10,000/ from somebody known to the complainant but complainant has misused the cheque in question by filing present complaint case. Cheques were not filled up by the accused except signatures appended thereon.
15. On this testimony of CW1, accused has explained while answering to the statement recorded u/sec. 313 Cr.P.C that accused has given blank cheque to the complainant duly signed for security for getting loan of Rs. 10,000/ from somebody known to the complainant, subsequently cheque has been misused by the complainant by filing the present false case. Accused has not received any legal notice or shows his willingness to lead defence therefore, accused has examined and CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 7 8 reproduced the defence in his examination in chief but during crossexamination accused admitted that he has received legal notice Ex.CW1/E as well as even otherwise it is also admitted by the accused during his crossexamination that he has not lodged any complaint for misusing of cheque in question and also never wrote to complainant to return the cheque in question.
16.On these testimonies conviction has been sought by the complainant on the ground that he has proved its case beyond reasonable doubt, because accused has admitted that he has issued a cheque to the complainant duly signed admitted service of legal notice Ex.CW1/E during his crossexamination and during crossexamination of DW1/accused, he also admitted that he used to maintain the counter file of his cheque book but do not furnish any counter file of cheque book which can substantiate the defence of the accused regarding fact that cheque in question was given towards the security of loan of Rs.10,000/ taken through complainant from somebody else but surprisingly no name of person has been disclosed by the accused as such defence is totally concocted and not reliable.
17.On the other hand ld. counsel for accused sought acquittal of the accused on the ground that cheque in question was given for security of Rs.10,000/ taken from someone else through complainant as such perfectly repeated the presumption.
CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 8 9
18.After taking into consideration the facts and circumstances I am of the considered view that accused is completely failed to rebut the presumption that cheque in question was not given towards the discharge of legal liability. Though at the time of notice as well as in reply to statement u/sec. 313 Cr.P.C he contended that he has not received any legal notice Ex.CW1/E but during cross examination he admitted the fact that he received legal notice ex.CW1/E despite that he has not replied on account that he was busy in treatment of his wife who met with an accident at the relevant time but surprisingly no as such document of treatment of his wife has been shown/placed by the accused hence this defence cannot be said to be plausible reason for not sending reply to the legal notice Ex.CW1/E. Even otherwise it is also admitted by the accused during his crossexamination that he has not lodged any complaint for misusing of cheque in question and also never wrote to complainant to return the cheque in question.
19.It is well settled law that if cheque in question has been given for the security purpose but did not return back after the purpose served then defence cannot be taken into consideration or amounts to rebut the presumption. Reliance can be placed relied upon the judgment reported as " V.S. YADAV VS REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs.
CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 9 10 138,139 and Cr.P.C., 1973251281 Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean mis reasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for sake of fundThis order is made for consideration and that is why Sec.139 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881 Sec.138/139Dishonour of cheque Presumption under sec. 139Rebuttal of Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under sec. 139 N.I Act In order to rebut the presumption CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 10 11 under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this caseJudgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 313 Cr.P.C is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under sec. 281 Cr.P.C or 313 Cr.P.C cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to crossexamination. His explanation that he had the cheques as security for taking loan from the CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 11 12 complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under sec. 281 Cr.P.C that the cheques were issued as security, does not amount to proof.
Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence."
It was further held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya G. Hedge, 2008(1) JCC(NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 12 13 observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec. 138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec. 139 of N.I Act. If mere statement under sec. 313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under sec. 139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 13 14 asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.
DECISION AND REASONING
20.After taking into consideration the facts and circumstances of the case, I am of the considered view that in the present case all the four ingredients of section 138 N.I Act have been proved by the complainant beyond reasonable doubt in as much as accused at the time of notice u/sec. 251 Cr.P.C admitted issuance of blank signed cheque to the complainant which is subject matter of the present complaint, dishonour of the cheque has also been proved as per Ex.PW.1/C because no cross examination of CW1 has been done on this point, though service of legal notice has been denied since framing of notice till explanation u/sec. 313 Cr.P.C but during the cross examination of DW1 service of legal notice Ex.CW1/E has also been admitted by the accused.
21.On the other hand accused has completely failed to establish that cheque in question was given towards security of loan of Rs.10,000/ given by him to the complainant because it is unbelievable that who is giving loan to anyone or taking loan from anyone does not name to each other and lastly, admittedly, no compliant against the complainant has been lodged in respect CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 14 15 to the misuse of the cheque or even asked to the complainant to returned back cheque in question in writing. Hence I declare that all the documents Ex.CW1/A to Ex.CW1/E stands proved.
22.For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused has been proved. Accused is accordingly held guilty and convicted under Section 138 N. I. Act. Let convict/accused be heard on the point of sentence on 22/12/2014.
ANNOUNCED IN OPEN COURT
Dated : 20/12/ 2014 (RAKESH KUMARIII)
CMM, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 15
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IN THE COURT OF RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT : KARKARDOOMA COURTS, DELHI.
AJIT PAL SINGH VS GULSHAN KUMAR JAGGA
CC/RBT No.: 454/G/14
U.I.D. No. : 02402R0473882007
U/s. : 138 N.I. Act
P.S. : M.S PARK
22/12/2014
ORDER ON THE POINT OF SENTENCE.
Present : Complainant in person with counsel.
Convict with counsel.
1. Vide separate judgment passed and announced in the open court on 20/12/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. I have heard the convict and his counsel on the Point of Sentence.
3. An application on behalf of accused filed u/sec. 360 Cr.P.C r/w section 3&4 of Probation Offenders Act and report from Probation office received.
4. It is argued by Ld counsel for convict that convict namely Gulshan Jagga is aged about 50 years old and has no previous involvement or antecedents. It is also stated that convict is having CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 16 17 good reputation and he/convict is a teacher in Government Affiliated School and he is having responsibility to look after his family consisting of his wife Smt. Sarita Jagga (house wife) aged about 49 Yrs. who is suffering from various elements, two daughter namely Divya Jagga aged about 25 Yrs and Survi Jagga aged about 22 Yrs, and one son namely Naman Jagga aged about 20 Yrs. It is further submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as he is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last seven years and on account of conduct of convict, he may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
5. Opposed by Ld. counsel for complainant stating that convict be punished with maximum punishment and he do not deserve any leniency. Adequate compensation has been prayed to be given to the complainant by Ld. counsel for complainant .
6. I have heard the submissions of Ld. counsel for convict and have perused the record. Liability in this case has already been proved during the trial and the payment is pending in this case since seven years.
7. Having considered the above said facts and circumstances of the CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 17 18 case and the fact that convict has no previous criminal background and report of Probation Officer and SHO in favour of convict, hence it is expedient to release him on probation of good conduct and behaviour. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of two years. No order as to fine. Further Rs.1,10,000/(Rupees One lac ten thousand) as compensation is awarded in faovur of the complainant which has to be paid within one month failing which he shall under go simple imprisonment for 2 years and compensation shall be recovered as revenue of State.
8. Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Convict furnished personal bond, same are accepted
9. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT
Dated : 22/12/2014 (RAKESH KUMARIII)
CMM, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 18
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AJIT PAL SINGH VS GULSHAN KUMAR JAGGA
CC/RBT No.: 454/G/14
U.I.D. No. : 02402R0473882007
U/s. : 138 N.I. Act
P.S. : M.S PARK
22/12/2014
Present : Complainant in person with counsel.
Convict in person with counsel.
Report from the Probation Officer as well as SHO concerned received, perused.
Vide separate order on the point of sentence, convict is benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of two years. No order as to fine. Further Rs.1,10,000/(Rupees One lac ten thousand) as compensation is awarded in faovur of the complainant which has to be paid within one month failing which he shall under go simple imprisonment for 2 years and compensation shall be recovered as revenue of State.
Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Convict furnished personal bond, same are accepted. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
(RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.454/G/14 AJIT PAL SINGH VS GULSHAN KUMAR JAGGA, P.S M.S PARK, U/SEC. 138 N.I ACT. 19