Delhi District Court
Abn Bank vs . Mumtaz Siddiqui on 1 March, 2012
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CC No. 8398/09
IN THE COURT OF MS. GURMOHINA KAUR : METROPOLITAN
MAGISTRATE:SPECIAL COURT13, DWARKA COURTS : NEW DELHI.
C.C NO. 8398/09
ABN Bank Vs. Mumtaz Siddiqui
1. Complaint Case No. : 8398/09
2. Name of the complainant : ABN Amro Bank
A Public Ltd. Company, Interalia
having its office at:
Hansalya Building, 15,
Barakhamba Road,
New Delhi110 001
Through its
Authorized Signatory:
Mr. Vipin Chaudhary/Muneesh
Dhawan/Ashish K. Gupta/Manish
Kumar
3. Name of the accused and his : Mumtaz Siddiqui
parentage and residence 280 Main Bawali Gate
Dargha Hzt. Nizamuddin,
New Delhi110 013
Mumtaz Siddiqui
Khasra No. 556, Main
Bawali Gate, Dargha
Hzt. Nizamuddin,
New Delhi110 013
4. Offence complained of or proved: U/s 138 of the Negotiable
Instrument Act, 1881
5. Plea of the accused : Pleaded not guilty
6. Final Order : Acquitted
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CC No. 8398/09
7. Date of Order : 01.03.2012
BRIEF FACTS OF THE CASE
1. The brief facts of the case are that the Complainant is a Bank incorporated a public limited company incorporated under the Laws of the Netherlands having its Registered office in Delhi. Shri Ankit Goyal whose name was substituted as AR in the present complaint vide order dated 26.09.2011 and he has been authorized by the complainant in terms of Power of Attorney executed in his favour dated 03.08.2011.
2. It is stated in the complaint that the accused took a loan from the complainant under the Loan No. 9292833. It is further averred in the complaint that the accused in discharge of her part liability issued three post dated cheques bearing Nos. 843264, 843265 and 843266 respectively which are Ex.CW1/B (colly), all drawn on Punjab National Bank, New Delhi, each of amount Rs. 2,362/ and all dated 04.06.2007 and when the said cheques were presented for encashment the same were returned back with remark 'funds insufficient' vide return memos dated 05.06.2007 i.e. Ex.CW1/C (colly).
3. The complainant bank further avers in its complaint that a legal demand notice which is Ex. CW1/E dated 15.06.2007 was sent by the complainant company through its lawyer which was duly served by speed post receipts dated 16.06.2007 and 18.06.2007 which are Ex.CW1/E (colly) and that the accused failed to make the payment within the statutory period of 15 days and hence this criminal complaint was filed by the complainant.
4. Summons were sent to the accused on 25.01.2008. Upon service of summons, the accused put her appearance for the first time before the Court on 04.08.2009 and was granted court bail on the same date. Notice was framed against the accused on 16.08.2011 to which she pleaded not guilty and 3 CC No. 8398/09 claimed trial.
EVIDENCE
5. To support its case, the complainant bank examined one witness Mr. Ankit Goyal, AR of the Complainant bank as CW1 on 12.12.2011.
6. CW1 tendered his evidence by way of affidavit and reiterated the contents of the complaint and relied upon the documents Ex.CW1/A to Ex.CW1/E. During his crossexamination, CW1 stated that the accused was granted a loan of Rs.61,000/ in April 2006. However, he did not remember the mode of disbursement of loan amount. The loan was to be repaid in 36 installments of Rs.2326/ each and at the time of presentation of cheques in question six installments were due against the accused. It is further submitted that the accused has paid 8 EMIs till December 2006. It was further stated that he did not know whether prior to 04.06.2007 any legal notice was sent to the accused. CW1 also denied the suggestion that the cheques in question were taken from the accused after sanctioning of loan amount but prior to disbursement of the same and stated that the accused may have given the cheques in question with respect to six monthly installments and further denied that no dues were pending against the accused as on 04.06.2007 and he further stated that he did not know the date when the cheques in question were handed over by the accused to the complainant. It is further stated that the cheques in question were issued with respect to partial liability of the accused and that the aforesaid fact has not been mentioned in the legal demand notice. It is further admitted that on the cheques in question the details have been filled up by different ink as that of the signatures of the accused and that the name of the Payee as well as the date is stamped.
7. Thereafter, CE was closed on 12.12.2011 and the matter was fixed for recording of statement of accused.
8. The statement of the accused under Section 313 of Cr.P.C. was thereafter 4 CC No. 8398/09 recorded on 23.01.2012 wherein accused stated that she had given the cheques in question as security cheques as the mode of payment of installments was through ECS. It was further stated that the complainant presented all the cheques in question at one time and further stated that she did not receive any legal demand notice.
9. Thereafter, the accused moved an application u/s 315 CrPC on 04.02.2012 to examine herself as a witness which was duly allowed by the Court.
10. On 04.02.2012 , DW1 in her examinationinchief stated that she had taken a loan of Rs.58,000/ from ABN Amro Bank in 2006 and the loan was repayable in 30 installments of Rs.2362/ by way of ECS and that she had given the cheques in question as blank for security purpose with only her signatures on the same and stated that she had suffered a financial loss and there was a delay in making the payment.
11. On 14.02.2012, DW1 in her crossexamination stated that she had till date paid 8 installments. However, she did not remember how many installments she had paid till June 2007. It was further stated that the loan was repayable by way of ECS. However, she has not placed any document to show the payment made by her. DW1 further stated that the details on the cheque in question were not filled up by her and that she had handed over 6 blank cheques at the time of taking the loan. It was further stated that all three cheques were presented together for encashment because of which she was unable to honour the same. DW1 further admitted that the address mentioned on the legal demand notice is correct. However, she stated that she did not receive the legal demand notice.
12. Thereafter the Defence Evidence was closed vide order dated 14.02.2012 and the matter was fixed for final arguments.
ARGUMENTS
13. During final arguments, Ld. Counsel for complainant bank submitted that all 5 CC No. 8398/09 the necessary ingredients of Section 138 of the Negotiable Instruments Act had been fulfilled. Ld. Counsel further argued that the accused has admitted the loan and the signatures on the cheques in question. It was further stated that the accused has admitted her liability and the legal demand notice was sent at the correct address.
14. On the other hand, Ld. Counsel for the accused has argued that the complaint no where mentions the loan amount availed by the accused but however it states that the accused had issued PDCs to the complainant for repayment of loan. It was however stated that the loan was repayable by way of ECS. It was further argued that the cheques in question with respect to three installments and however it is not stated that for which months these installments were repayable. It is further argued that mere signatures does not amount to admission of liability on behalf of the accused. It is further argued that the complainant has been unable to show what was the partial liability against the accused and with respect to legal demand notice it was argued that no proof of delivery has been placed on record.
SECTION 138 NEGOTIABLE INSTRUMENTS ACT
15. This court has heard the arguments on both the sides and have carefully gone through the record. On the basis of the facts and arguments placed before the court, the main issue to be decided is whether the accused had issued the cheque in question in discharge of her partial debt/liability.
16. It is now pertinent to go through Section 138 of Negotiable Instruments Act.
138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of 6 CC No. 8398/09 that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for"a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque,"within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability. 7 CC No. 8398/09
17.It is pertinent to mention section 139 and Section 118 of the Negotiable Instruments Act which are as follows:
"Section 139. Presumption in favour of holder 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."
"Section 118. Presumption of Negotiable Instruments of consideration Unless the contrary is proved, the following presumptions shall be made
(a) of considerationthat every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;
(d) as to time of transfer. that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stampsthat a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course; provided that, where 8 CC No. 8398/09 the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
18. Section 139 of the Negotiable Instruments Act lays down that it shall be presumed, unless contrary is proved that the holder of the cheque received the cheque of the nature stated in section 138 for the discharge of a debt or liability.
19. The accused may rebut the presumption under Section 139 and Section 118 of the Negotiable Instruments Act by leading evidence or by showing the preponderance of probabilities.
In Rangappa v. Sri Mohan 2010 STPL(DC) 952 SC, it was observed in para 14 that:
1. "14.................................However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof 9 CC No. 8398/09 for doing so is that of' preponderance of probabilities'.
Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
20. Under the Negotiable Instruments Act, the accused has to disprove the presumption raised against him by virtue of section 139 of the Negotiable Instruments Act that it shall be presumed, unless the contrary is proved, that the holder of the cheque in question received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or any other liability. Also, according to Section 118 of the Negotiable Instruments Act, there is a presumption that every negotiable instrument is drawn for a consideration. It is for the accused to rebut these presumptions by leading evidence in his defence.
21. The case of the complainant is that the cheques in question was issued by the accused in discharge of her partial debts. The complainant has also filed the statement of account. However, the same has not been tendered in evidence.
22. The accused has taken the plea that the complainant has misused the cheques in question which she has handed over to the complainant at the time of availing the loan and she never issued the cheques in question against the outstanding dues. It is an admitted fact that the accused had availed a loan from the complainant bank. It is also admitted that loan was repayable in 30 installments of Rs.2362/ each. The complainant in his 10 CC No. 8398/09 crossexamination has stated that he did not know the mode of repayment of loan whereas the accused has taken the plea that the loan availed by her was repayable by way of ECS.
23. In the present complaint, the accused has admitted that she has signed the impugned cheques, however, the same was handed over to the complainant in blank as a security cheque. The question to be decided by the court in this case is that whether the cheque in question was issued towards any legally enforcible liability. During the crossexamination, CW1 did not make any specific statement with respect to the mode of repayment of the loan amount. CW1, however, had stated that the loan was repayable in 30 installments. The accused has however stated the loan was repayable by way of ECS. Even the statement of account placed on record by the complainant does not mention the mode of repayment of loan. The accused has stated this fact in her statement recorded U/s 313 Cr. P.C. wherein she stated that the loan was repayable by way of ECS and she had issued the cheques in question in blank as a security cheque at the time of availing the loan. It is also seen that the monthly installment of the loan was Rs.2362/ each. The complainant when asked a specific question as to whether it has been stated in the complaint that the accused had issued PDC for repayment of loan amount to which the AR stated that he did not remember the aforesaid fact. The complainant has not placed on record any document to show the mode of repayment of the loan amount and also as to when the cheque in question was handed over by the accused to the complainant. The complainant has also not been able to produce before the court any evidence to show that on what basis the cheques in question was filled up and for which months the said cheques were due. It is also important to note that all the cheques in question have been presented together for encashment. 11 CC No. 8398/09
24.It is the cardinal rule of law that the complainant has to prove his case beyond reasonable doubts and the accused only has to show some preponderance of probabilities in order to rebut the resumption raised. The case of the complainant should also stand on its own legs and in the present complaint, the complainant failed to show that the cheques in question was issued by the accused herself in discharge of her partial liabilities when the loan itself was repayable by way of ECS. The accused has only admitted her loan liability and has time and again reiterated that the cheques in question was issued in blank as security cheque and was filled up and presented for encashment without any information to her. This ground taken by the accused is able to raise doubts in the case of the complainant.
25. In view of the aforesaid facts and discussion, the issue is decided in favour of the accused and against the complainant.
26. Accordingly, this court is of the opinion that offence under Section 138 of N.I. Act read with Section 142 (b) of N.I. Act is not made out.
27. Hence, the accused - Mumtaz Siddiqui is hereby acquitted of the offence. Bail bond and surety bond, if any, stands canceled. Endorsement, if any, be also canceled. File be consigned to Record Room.
Announced in the Open Court
on 01st March 2012 (GURMOHINA KAUR)
METROPOLITAN MAGISTRATE
DWARKA COURT:NEW DELHI