Delhi District Court
M/S Wild Flower Resources Pvt Ltd. vs . Mr. Y.R. Yadav on 27 August, 2010
:1:
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ
/ JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE
COURTS, NEW DELHI
M/s Wild Flower Resources Pvt Ltd. Vs. Mr. Y.R. Yadav
CC NO. 1055/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1055/1/09
(b) The name of the complainant :M/s Wild Flower Resources Pvtd Ltd, C-13, 1st floor, Green Park Main, New Delhi through R.P.S. Rawat, Authorized Signatory
(c) The name of the accused persons, and his parentage & residential address :Mr. Y.R. Yadav, 113, Sanjay Enclave, DDA LIG Flats, Opp. G.T.K. Bus Depot,Delhi 110 012.
(d) The offence complained of or proved : U/S 138 N.I. Act (e) The plea of the accused : Pleaded not guilty (f) The Final Order : Convicted (g) The date of order : 16.8.2010
Facts as borne out from the complaint are as follows:
1. The case set up by complainant is that it is a Private Limited company, engaged in the business of financing on Hire-Purchase basis, with Shri R.P.S. Rawat as authorized signatory to file the present complaint. It is stated that towards the discharge of debts incurred due to hire charges for "Toshiba Photocopier", accused had issued six cheques of different dates as detailed in para 5 of the complaint, each drawn on Oriental Bank of Commerce, Azadpur, :2: Delhi, all of which on presentation were returned back with the remarks "Refer to drawer" vide return memos dated 13.4.98 and dated 16.4.1998. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 22.4.1998 to accused through registered A.D. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant has filed this complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. The Court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused, the Court summoned the accused for offence U/s 138 of the Act.
3. The accused appeared through counsel on 24.10.98. On 15.12.1999 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the complainant has examined the AR Shri Dharam Chand, the substituted AR of complainant company. The witness was substituted by Ld. Predecessor on 21.10.2003. Accused has examined himself as DW1.
5. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation.
6. In his examination U/s 313 Cr.P.C, the accused has submitted that the complainant's agent was approached by him to purchase the photocopier make 'Toshiba'. It is stated that the accused at that time had machine Photocopier make "Modi". He :3: stated that the complainant took away that machine on exchange basis and the photocopier make "Toshiba" was sold to him. He stated that the complainant had financed an amount of Rs. 90,000/- to the accused and the balance was adjusted towards the photocopier make 'Modi'. The accused stated that the Agreement was got signed from him by the complainant and he could not even go through the contents of agreement, in good faith. He stated that the complainant took blank post dated cheques in question. He stated that after 2-3 month, the photocopier stop functioning and the engineer of the complainant kept visiting his shop. The accused further stated that the photocopier however did not function and despite the same, he kept paying installments upto 1 year. He further stated that later complainant assured to exchange two old photocopiers by returning the defective photocopier but those two photocopier also did not function.
7. The accused further states that he does not remember if he was served the statutory legal notice by complainant. He states that several documents were got signed by the employee of complainant company, which he signed in good faith. He further stated that once the complainant took back the machines, the matter should have been settled as there was nothing due and recoverable as per understanding between parties. Instead, the complainant filed the instant complaints. He stated that one machine of complainant is still lying with him. He stated that the cost of the machine initially was Rs. 90,000/-, however, the complainant sold it of Rs. 135000/- and thus cheated him.
8. I have heard arguments of learned counsels for complainant and ld counsel for the defence and perused the relevant statutory provisions and evidence alongwith written arguments filed on record.
:4:9. It is argued with vehemence that the payment of 12 cheques was already made by the accused and against the half payment, one machine and three pieces of toners were taken by the Financer / Complainant Company, the accused is not liable to pay the remaining financed amount i.e. amount of remaining 12 cheques. It is argued that in cross examination of the witness of the complainant, the Agreement was never signed by the accused and rather some blank papers were got signed from him by the agents and have been mis-used by the complainant company.
10. It is further argued that the letter Ex. CW1/G shows that complainant informed the accused of the exchange of machine and after deducting the sale amount, accused had to pay only Rs. 46,200/-. It is argued that the letter Ex. CW1/G is a fake and false document filed by complainant at later stage. Besides this, other contentions are also taken in written arguments in detail. It is argued that accused is not liable to pay any amount and pursuant to the assurance of complainant in writing only, accused had stopped making payments against remaining 12 cheques.
11. Per contra, it is argued by counsel for complainant that from evidence, complainant has proved that the cheques were signed by the accused, which have been dishonoured vide memos and despite service of legal notice, accused did not make payments. It is argued that from cross of CW1, nothing material has come out and complainant has been able to prove its case. It is argued that the accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the NI Act.
:5:12. I have heard arguments of learned counsels for complainant and ld counsel for the defence and perused the relevant statutory provisions and evidence alongwith written arguments filed on record. Before looking into the factual issues involved herein, let us consider the provisions of Section 138 of Act. The requirements are :
(1) there is a legally enforceable debt (2) the drawer of the cheque issued the cheque to satisfy the whole or the part of the debt (3) the cheque so issued has been returned due to insufficiency of funds.
13. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to granting the relief.
14. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan; AIR 1999 Supreme Court 3762; it was observed that as the signature in the cheque is admitted to be that of the 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 is on the accused to rebut the aforesaid presumption.
15. In State of Madras Vs. A. Vaidyanatha Iyer: AIR 1958 SC 61; it was held that it is obligatory on the Court to raise this :6: presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused".
16. In Hiten P. Dalal Vs. Bratindranath Banerjee; AIR 2001 Supreme Court 3897; Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/S 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability." The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
17. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575.
18. From the aforestated settled legal principles, it is crystal clear that Section 118 of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact. The presumption has to be rebutted by proof and not by a statement or plausible explanation. In this regard, I have considered the evidence produced on record.
:7:19. Now the question is whether the complainant has proved to the hilt, that whether the amount was legally enforceable debt. I have analysed the deposition of the witness of complainant. Having considered the testimony, the issuance of the cheques is not in dispute. It is proved that the cheques were issued by accused in discharge of liability/debt incurred by accused in terms of Hire Purchase Agreement dated 25.10.96, which were dishonoured for the reasons as per return memos and accused was served with a notice through registered AD within the stipulated time and despite that no payment has been made by him.
20. On consideration of the evidence coming on record, the only defence set up by the accused through cross examination of the complainant is that:
A) The accused has been cheated by the complainant company i.e financer as well as the HCL Company in respect of the total 24 post dated cheques taken by them fraudulently and illegally.
B) The accused is not liable to pay the remaining 12 dishonored cheques having obtained fraudulently by the complainant. C) On oral settlement, the entire amount was settled with the complainant company.
21. In his statement U/S 313 Cr.P.C the accused has stated that:
The complainant had financed an amount of Rs. 90,000/- to the accused and the balance was adjusted towards the photocopier make "Modi". The accused stated that the Agreement was got signed from him by the complainant and he could not even go through the contents of agreement, in good faith.
The complainant took blank post dated cheques in question. He stated that after 2-3 month, the photocopier stop :8: functioning and the engineer of the complainant kept visiting his shop.
The photocopier however did not function and despite the same, he kept paying installments upto 1 year. He further stated that later complainant assured to exchange two old photocopiers by returning the defective photocopier but those two photocopier also did not function. Several documents were got signed by the employee of complainant company, which he signed in good faith. He further stated that once the complainant took back the machines, the matter should have been settled as there was nothing due and recoverable as per understanding between parties.
22. I have considered the defence evidence adduced vide affidavit as well as the cross examination of DW1 - accused. The accused admits the issuance of the cheques in question. The cheques given pursuant to the agreement is also admitted alongwith the factum of their dishonour. The defence is that some blank documents were got signed from the accused, though signatures on those documents are admitted by the accused to be his own signatures. No supportive evidence has been filed to prove the assertions made by accused in his affidavit. No complaint against the alleged forgery or forcible signatures obtained by complainant has been placed on record and the defence in this respect is only an afterthought and is not a good ground canvassed for giving the cheques in question to the complainant and thus accused cannot take shield under the armour of plea that complainant company had forcibly obtained his signatures on blank papers.
23. The defence has not produced any evidence on record that the payments allegedly made by the accused were in discharge of the liability arising out of the cheques in question in view of the :9: admission of having taken a loan of Rs. 90,000/- from complainant company. In Kundan Lal Rallaram Vs. Custodian Evacuee Property Bombay AIR 1961 SC 1316, it was held that if a relevant evidence is withheld the court may draw a presumption to the effect that if the same was produced it might have been unfavourable to the Plaintiff. In the present case also the non production of the material in support of allegations would lead to draw an adverse inference against the accused more particularly when the complainant has denied that the payments made to him by the accused were in discharge of the liability under the impugned cheques. Since the plea has been raised by the accused, it was for him to prove the same under the law by leading the reliable evidence, which accused has not led at all in this case.
24. The onus was on the accused to rebut the presumptions by leading a cogent and reliable evidence. The accused has failed to show that on what strength the payments of first 12 cheques were made to the complainant company. He also has not made any complaint against the complainant for the alleged misuse nor any representation is made even to the complainant in this regard, before taking up this defence, first time in his affidavit in evidence.
25. Accused has also sought to take up a plea of his having not received the Legal Notice. The notice was sent at the correct address of the accused and through registered cover and a presumption U/S 27 General Clauses Act has to be raised against the accused in C.C. Alavi Haji Vs. Palalpetty Mohd and Anr. 2007 (3) Crime 120 SC, it is held that Section 27 General Clauses Act gives rise to presumption that service of notice has been effected when it is sent to the correct address by Registered Post.
26. In totality of the facts & circumstances of the case, it was the liability of the accused to bring positive evidence, in the wake of :10: disputing the extent of liability by him. The liability was more intense particularly when the accused allegedly had made part payments against 12 installments. It was the sole burden and duty of the accused to prove the extent of liability, if any, when he was defending a presumption, which was supporting the dishonoured cheques. The forbearance of the accused in bringing before the court, best evidence with supportive documents, renders Complainant's case proved. The accused has failed to discharge the burden. Having considered the entire evidence, it is proved that accused had issued the cheques against liability and against legally enforceable debt and the said cheques were dishonoured.
27. Having gone through the provisions of Section138 of the Act, it is clear that evidence U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues a cheques towards the discharge of a debt or liability as a whole or in part and the cheques are dishonoured by bank on presentation.
28. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheques in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/S 138 N.I. Act. Let he be heard on the point of sentence on 25.8.2010 at 3.00 PM.
(Announced in Open Court (MS. RAVINDER BEDI) on 16.8.2010 ) JSCC cum ASCJ cum Guardian Judge (South) 16.8.2010 :11: IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI Rashmi Jain Vs. Pradeep Kumar Singh CC NO. 493/1/09 U/s 138 N.I. Act 10.8.2010 3.00 PM ORDER ON SENTENCE Present: Counsel for complainant alongwith AR of complainant.
Convict produced from JC (in some other case) with counsel Shri Lalit Kumar.
1. I have heard the convict and his counsel on the Point of Sentence.
2. It is argued by ld counsel that convict has three minor children and parents to lookafter. It is argued that criminal revision petition No. 620/09 is pending disposal before Hon'ble High Court against the order of Ld. Appellate Court, in which the sentence of convict passed against him in another case in the Court of Ld. M.M. Shri N.K. Laka was upheld. It is argued that the convict has already been ordered to pay a compensation of Rs. 50,00,000/- vide order dated 12.3.2009 passed on sentence imposed by Ld. M.M. Shri Laka. Therefore, a prayer of leniency towards convict is made by Ld. counsel.
3. Counsel for the complainant to the contrary argues that since the convict had issued several cheques in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. It is argued that the fine imposed by Ld. M.M. Mr. Laka on 12.3.2009 has also remain unpaid till date. It is argued that no leniency be extended to the convict in view of the various cases pending against him. It is argued that no effort whatsoever has been made by the convict to pay the amount of compensation ordered by :12: Ld. M.M. Mr. Laka. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
5. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for six months and to pay a compensation of Rs. 5,00,000/- ( Rs. five lacs) within a period of 30 days to the complainant. In default of payment, convict shall further undergo imprisonment for three months.
6. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
7. At this stage, counsel for convict seeks to move appropriate application for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
On request of defence, put up for moving appropriate application on 11.8.2010 at 2.00 PM (Announced in Open Court (MS. RAVINDER BEDI) on 10.8.2010) JSCC cum ASCJ cum Guardian Judge (South) 10.8.2010 :13: IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI M/s Wild Flower Resources Pvt Ltd. (renamed as M/s Green Park Leafin Pvt. Ltd.) Vs. Mr. Y.R. Yadav CC NO. 1055/1/09 U/s 138 N.I. Act 27.8.2010 3.00 PM ORDER ON SENTENCE Present: Counsel for complainant alongwith AR of complainant.
Convict present with counsel Mr. Faheem.
1. It is argued by Ld. Counsel for complainant company that the name of the complainant company has been changed as M/s Green Park Leafin Pvt. Ltd. and a copy of the order to this effect is already placed on record.
2. I have heard the convict and his counsel on the Point of Sentence.
3. It is argued by ld counsel that convict has one unmarried daughter. It is stated that convict himself is partially physically disabled person. It is argued that the convict has no source of earning and he hails from financially week family, having no regular source of income. Therefore, a prayer of leniency towards convict is made by Ld. counsel.
4. Counsel for the complainant to the contrary argues that since the convict had issued six cheques for Rs. 5100/- each in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
5. I have heard respective parties at bar. I have also considered the :14: past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
6. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for 1 year and to pay a compensation of Rs. 1,20,000/- ( Rs. One lac twenty thousand ) within a period of two months to the complainant. In default of payment, convict shall further undergo imprisonment for three months.
7. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
8. At this stage, counsel for convict seeks to move appropriate application for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on personal bond. Heard.
Be awaited.
(Announced in Open Court (MS. RAVINDER BEDI) on 27.8.2010) JSCC cum ASCJ cum Guardian Judge (South) 27.8.2010 :15: IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI M/s Wild Flower Resources Pvt Ltd. (renamed as M/s Green Park Leafin Pvt. Ltd.) Vs. Mr. Y.R. Yadav CC NO. 1054/1/09 U/s 138 N.I. Act 27.8.2010 3.00 PM ORDER ON SENTENCE Present: Counsel for complainant alongwith AR of complainant.
Convict present with counsel Mr. Faheem.
1. It is argued by Ld. Counsel for complainant company that the name of the complainant company has been changed as M/s Green Park Leafin Pvt. Ltd. and a copy of the order to this effect is already placed on record.
2. I have heard the convict and his counsel on the Point of Sentence.
3. It is argued by ld counsel that convict has one unmarried daughter. It is stated that convict himself is partially physically disabled person. It is argued that the convict has no source of earning and he hails from financially week family, having no regular source of income. Therefore, a prayer of leniency towards convict is made by Ld. counsel.
8. Counsel for the complainant to the contrary argues that since the convict had issued six cheques for Rs. 5100/- each in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
:16:9. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
10. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for 1 year and to pay a compensation of Rs. 1,20,000/- ( Rs. One lac twenty thousand ) within a period of two months to the complainant. In default of payment, convict shall further undergo imprisonment for three months.
11. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
12. At this stage, counsel for convict seeks to move appropriate application for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on personal bond. Heard. Be awaited.
(Announced in Open Court (MS. RAVINDER BEDI) on 27.8.2010) JSCC cum ASCJ cum Guardian Judge (South) 27.8.2010 :17: CC NO. 1054/1/09 U/s 138 N.I. Act 27.8.2010 Present: Counsel for convict.
At this stage, counsel for convict has moved an application for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on personal bond.
Heard.
Since convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs 25,000/-. Be put up for furnishing surety bond. Personal bond accepted uptil 26.09.2010 at 2.00 PM.
Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI) on 27.8.2010) JSCC cum ASCJ cum Guardian Judge (South) 27.8.2010