Delhi District Court
In The Case Titled Goa Plast Pvt. Ltd. vs . Chico Ursula D'Souza 2003 on 23 February, 2013
1
IN THE COURT OF SH. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE10, DWARKA COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
SHIV SHANKAR DUBEY
VS
P.S. RAWAT
CC NO. 1010/12
PS:Sagarpur
U/S: 138 r/w 142 N.I. Act
Date of Institution: 27.07.2012
Name of the Complainant Shiv Shankar Dubey
r/o RZ 32/322, Street no. 7,
Geetanjali Park, West Sagarpur,
New Delhi110046.
Name and address of accused P.S. Rawat, r/o H.NO. 1000,
1st Floor, Near Mother Dairy
Booth, Arun Vihar, Sector 37,
Noida.
Offence complained of U/s 138 N.I. Act
Plea of accused pleaded not guilty
Final Order Convicted
Date of such order 23.02.2013
Date of Institution of case: 27.07.2012
Date of hearing final arguments: 12.02.2013
Date of decision of the case: 23.02.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present Judgement, I shall decide the complaint case u/s 138 r/w 142 Negotiable Instruments Act, 1881 (as amended upto 2 date) filed by the complainant.
2. The facts in brief necessary for the disposal of the present case are that the allegations in the complaint that accused was working in BSF, R.K. Puram, New Delhi as Asstt. Commandant (MIN) and complainant was working as constable in the BSF as his subordinate. The accused took a friendly loan of Rs. 2,25,000/ from the complainant for the marriage of his daughter which was performed on 28.11.2011. The accused issued two cheques bearing no. 753814 for a sum of Rs. 75,000/ dt. 11.06.2012 and another cheque no. 753815 dt. 23.06.2012 for a sum of Rs. 1,50,000/ total amount of both the cheque is Rs. 2,25,000/ of State Bank of India, Lodhi Estate CGO Complex, New Delhi110003. However, the aforesaid cheques when presented by the complainant for encashment got dishonoured with the remarks 'STOP PAYMENT' vide a cheque returning memo dated 26.06.2012. The complainant has thereafter given a legal notice of demand dated 27.06.2012 to the accused which was sent by registered AD Post as well as Courier thereby calling upon the accused to make the payment of the aforesaid sum. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 NI Act.
3. After the complaint was filed the complainant led his pre 3 summoning evidence who tendered his affidavit in evidence and after hearing the Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 06.08.2012 for the offence u/s 138 Negotiable Instruments Act, 1881. On appearance of the accused, a notice u/s 251 Cr.P.C. Dated 14.09.2012 was given to the accused to which he pleaded not guilty and claimed trial.
4. In order to prove his case the complainant got himself examined as CW1 and reiterated the contents of the complaint on oath before this court. He got exhibited the original cheques bearing no. 753814 for a sum of Rs. 75,000/ dt. 11.06.2012 and another cheque no. 753815 dt. 23.06.2012 for a sum of Rs. 1,50,000/ total amount of both the cheque is Rs. 2,25,000/, both are drawn on State Bank of India, Lodhi Estate CGO Complex, New Delhi110003. as exhibit Ex. CW1/1 and Ex. CW1/2 and the cheque returning memos dt. 26.06.2012 Ex. CW1/3 & CW1/4 ,the legal notice of demand dated 27.06.2012 as Ex. CW1/5 and the speed post receipt and UPC vide which the aforesaid notice was sent as Ex. CW1/6 and Ex. CW1/7. In his cross examination the complainant has stated that he know the accused since 2002 and he gave loan to accused in August, 2011 and he gave cash of Rs. 2,25,000/ to the accused. In his cross examination the complainant stated that he took loan of Rs.
4 2,50,000/ from SBI, BSF Camp, Chhawala on his PMS account and out of which Rs. 2,25,000/ was given to accused as loan by him. He gave friendly loan to the accused without interest. The installment of the loan amount is Rs. 7,000/ which gets debited from his account every month as he had issued PDC to the bank. In his cross examination the complainant stated that he advanced friendly loan to accused during AugustSeptember, 2011 and accused accepted loan from him in his office. Accused did not issue him post dated cheque in return of his loan. Both cheques which are filed with the present complaint, were handed over to him by accused in June, 2012. Accused handed over him filled cheques and none of the particulars were filled before the complainant. The complainant attended the marriage of the daughter of the accused which took place in Noida Sector 37. When the complainant presented the cheques for encasement as the drawer in drawee bank was the same, the bank official immediately informed the complainant after seeing the account of the drawer bank that the funds are insufficient in the account of the accused and cheques will not be honoured. Thereafter the complainant again went to the bank of the accused and presented the cheques for encasement, the next day he received written advice stating that the payment stopped by the drawer. On the same day the complainant contacted the accused and apprised 5 him of the fact of payment stopped by him. The complainant presented the cheques as per the instruction of the accused. On the next day of his presentment of cheques on CGO Complex Branch the complainant received the bank returning memo stating reason of dishonour as payment stopped. The complainant denied the suggestion that the accused has never taken loan from him and he was in possession of misplaced cheques from the accused. The witness proved in his execution of documents Ex. CW1/A and Ex. CW1/1 to Ex. CW1/7, which are part of the record. Thereafter, the Complainant's Evidence was closed.
5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to the accused in which he stated that he had not availed loan of Rs. 2,25,000/ from the complainant and the cheques in question were not issued by him to the complainant in discharge of his liability against the loan. Accused stated that he did not receive the legal notice personally but the intimation of legal notice Ex. CW1/5 was given to him when he reached his home on 15.07.2012 by his son. Accused also stated that these cheques were out of his misplaced cheques.
6. Thereafter the case was fixed for defence evidence. In defence evidence accused has examined himself as DW1 and stated that he was 6 working as Assistant Commandant in the office of IG (H.Q.) BSF, R.K. Puram , New Delh till his voluntarily retirement with effect of 31.10.2011. He was drawing monthly salary of Rs. 55,000/ per month as per salary slip for the month of October, 2011 vide copy of salary slip Ex. DW1/A. The cheque bearing no. 753813 to 753815 without any date but signed by him were lost on 29.05.2012. He made a complaint at PS Sector 39, Gautam Budh Nagar, Noida vide GD no. 37 dt. 29.05.2012, the copy of the same is Ex. DW1/B. He also made a request to his banker on line on 31.05.2012 to stop the payment of these cheques which was reflected in his statement of account on 01.06.2012, same is Ex. DW1/C. He also made necessary entries in my cheque book record slip on page no. 3, the photocopy of the same is Ex. DW1/D. In his cross examination the accused stated that he did not receive legal notice from the complainant. He denied the suggestion that he had taken voluntarily retirement due to the fact that he had taken loans from several persons. He also denied the suggestion that he had taken loan from the complainant in respect of his daughter's marriage. Thereafter, the defence evidence was closed and the case was fixed for final arguments.
7. It is submitted by the counsel for the complainant that complainant is a Sepoy in BSF and accused was a superior having rank of Assistant Commandant. It is further submitted by the counsel for the complainant 7 that this is a classic example of flouting the superiority and elicting favours by undue influence wherein a Sepoy was compelled to pay a loan by obtaining personal loan from SBI to his superior on the pretext of marriage of his daughter. It is further submitted by the counsel for the complainant that accused never doubted his superior's intention and being a member of disciplined forces obeyed his superior and also tried to help him financially for marriage of his daughter by obtaining personal loan to the tune of Rs. 2,50,000/. It is further submitted by the counsel for the complainant that complainant took the loan of Rs. 2,50,000/ from SBI and immediately handed over Rs. 2,25,000/ to the accused for marriage of his daughter. It is further submitted by the counsel for the complainant that accused had pre planned this criminal offence as after much insistence and requests were firstly handed over cheque of Rs. 50,000/ which was never honoured and thereafter issued the present cheques which also came dishonoured. It is further submitted by the counsel for the complainant that accused took VRS in the year 2011 and thereafter delayed the payment on one pretext or the other. It is further submitted by the counsel for the complainant legal notice was duly served to the accused as accused admitted the same during the course of trial on couple of occasions. It is further submitted by the counsel for the complainant that accused has deliberately and 8 intentionally avoided the payment and the ingredient of Section 138 NI Act are made out in this case.
8. On the other hand it is submitted by the counsel for the accused that the aforesaid cheques were stolen from the accused and for this a police complaint was also registered on dated 29.05.2012. It is further submitted by the counsel for the accused that complainant was a Sepoy in the office of the accused and he somehow managed to take the cheques without the knowledge of the accused and have misused the same against the accused in the present litigation. It is further submitted by the counsel for the accused that complainant has not mentioned the date of providing the loan to the accused in the complaint. It is further submitted by the counsel for the accused that complainant has not produced on record the documents while obtaining loan from SBI. It is further submitted by the counsel for the accused that complainant has misused the cheques and trust of his superior. It is further submitted by the counsel for the accused that legal notice sent by the counsel for the complainant was not served personally to the accused, however, same is served through the son of the accused. It is further submitted by the counsel for the accused that accused was a Assistant Commandant at that particular point of time and was drawing a salary of Rs. 55,000/ per month and on voluntarily retirement he got Rs. 16 lakh so no question of 9 asking loan from a Sepoy for marriage of his daughter and as such the complainant is falsely projecting the marriage of the daughter of the accused so as to divert the attention of the court from the fact of theft of cheques done by him. It is further submitted by the counsel for the accused that the burden of proof is on the complainant to prove its case as it is a criminal case. It is further submitted by the counsel for the accused that there is no independent witness brought by the complainant in this case. Ld. Counsel for the accused has filed five judgments in support of his arguments.
9. In order to bring home the conviction of the accused, the complainant has to show not only an unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complaint of.
10. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Act are as follows:
(i) The accused issued a cheque on an account maintained by him with a bank.
(ii) The said cheques have been issued in discharge of any legal debt or other liability.
(iii) The cheque has been presented to the bank within the period of six 10 months from the date of the cheque or within the period of its validity.
(iv) When the aforesaid cheques were presented for encasement, the same were returned unpaid/dishonoured.
(v) The payee of the cheques issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(vi) The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to committed an offence punishable u/s 138 Negotiable Instruments Act.
Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
11. WHETHER THE ACCUSED HAS ISSUED A CHEQUE ON ACCOUNT MAINTAINED BY HIM WITH THE BANK.
It appears from the record that the cheques in question are issued by accused as cheques bears the signatures of the accused as admitted by the accused during trial on an account maintained by him with the bank.
12. THE SAID CHEQUE HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY.
11 In his defence evidence the accused has stated that the cheque nos. 753813 to 753815 had been lost by him and same has been reported to police on 29.05.2012. However, thereafter no effort made by the accused for tracing of his cheques and the offender. Further the cheques bear the signature of the accused and it is difficult to believe that accused kept signed blank cheques with him in his briefcase. The defence of misusing of cheques made by the accused appears to be improbable and on the contrary in the intimation given to the police accused stated that the complainant was his colleague and he came to meet him and while he had gone to see him off, is evident of the fact that the relationship between the complainant and the accused herein is more than just being officer and subordinate. Hardly it is seen that a subordinate go and meet his superior in his home after his retirement and superior officer go to see him off with briefcase. Moreover, there is a presumption in favour of the complainant u/s 118 Indian Evidence Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for negotiation.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the 12 holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part or in debt or liability. Further Section 139 NI Act is kind of reverse onus clause which puts burden on the accused to prove its case.
Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated u/s 139 NI Act has to be raised by court in favour of the complainant. This presumption is mandatory presumption and not a general presumption but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by the accused must be probable and capable of being accepted. Merely submitting before the court without putting any evidence that cheques given were lost cheques for which intimation had been given to police would be of no use to the complainant.
In the case titled Goa Plast Pvt. Ltd. Vs. Chico Ursula D'souza 2003 (2).RCR.(CR.)131.SC. Hon'ble Supreme Court held "It is to be presumed that a cheque is issued in discharge of any 13 debt or liability. The presumption can be rebutted by adducing evidence and the burden of proof is on person who wants to rebut the presumption.
In another case titled as Hiten P. Dalal Vs. B. Banerjee.SCC.Criminal.960 Hon'ble Supreme Court has observed "There is a presumption of consideration for issuing the cheque and the burden of proving that the cheque was issued without consideration is upon the accused."
Therefore, with the aforesaid discussion it stands duly proved that the accused has issued two cheques bearing no. 753814 for a sum of Rs. 75,000/ dt. 11.06.2012 and another cheque no. 753815 dt. 23.06.2012 for a sum of Rs. 1,50,000/ total amount of both the cheque is Rs. 2,25,000/ of State Bank of India, Lodhi Estate CGO Complex, New Delhi110003 in favour of the complainant in discharge of his liability in the absence of any rebuttal evidence by him.
13. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY.
Perusal of the record reveals that the cheques in question which are Ex. CW1/1 and CW1/2 are dated 11.06.2012 & 23.06.2012 which got dishonoured vide cheque returning memo which are CW1/3 & Ex. CW1/4 dated 26.06.2012 which shows that the cheque has been 14 presented within the period of its validity i.e. within six months from the date of issuance of the cheque.
14. DISHONOUR OF CHEQUE IN QUESTION In the instant case, the cheque returning memo which is Ex. CW1/3 & CW1/4 are lying with the record of the case file. On perusal of the same it is revealed that the cheque returning memo are dated 26.06.2012 and the same were issued by the Drawee Bank and the reason of the dishonour of the cheque in question has been shown as 'PAYMENT STOPPED BY DRAWER'. Accordingly, it stands duly proved that when the cheque in question which are Ex. CW1/1 and Ex. CW1/2 were presented for encashment, the same were dishonoured vide cheque returning memo which is Ex. CW1/3 and CW1/4 with the remarks 'PAYMENT STOPPED BY DRAWER'.
15. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the present case, the complainant has specifically stated in his examination in chief that he got issued the legal notice of demand dated 27.06.2012 through his counsel and the same has duly been served upon the accused on or before 13.07.2012. Further in his statement u/s 313 Cr.P.C accused himself admitted that he did receive the intimation of legal notice when he reached his home on 15.07.2012 from his son. Further legal notice bears the same address which was furnished by the 15 complainant on the complaint and on which the summons were duly served to the accused.
Further there is a presumption u/s 27 General Clauses Act in favour of the complainant that a properly address document sent by Registered Post is deemed to have been delivered if not returned back.
In this case, cheques in question dated 11.06.12 and 23.06.12 got dishonoured vide cheque returning memo dated CW1/3 & CW1/4 respectively and the legal notice of demand Ex. CW1/5 has been duly served upon the accused vide speedpost receipt which is Ex. CW1/6 & CW1/7 . It shows that the legal notice of demand has been served upon the accused within the statutory period of 30 days from the receipt of information by the complainant regarding the dishonour of the cheque issued by the accused.
So, in view of the presumption raised u/s 27 General Clauses Act the legal notice Ex.CW1/5 stands served to the accused in view of the fact that in rebuttal no evidence was led by the accused.
16. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID CHEQUE In the case in hand, the complainant has deposed in evidence that despite receipt of the legal notice of demand, the accused did not make the payment of the cheques amount in question within 15 days of receipt 16 of legal notice of demand. From the facts on record it is evident that accused has failed to make payment within 15 days of receipt of said legal notice. The cause of action has well arisen in favour of the complainant u/s 138 Negotiable Instruments At when the accused has failed to pay the entire cheque amount within 15 days of the receipt of legal notice of demand
17. I have heard the final arguments addressed by Ld. Counsels for the parties and have also carefully perused the entire record which include judgments filed by Ld. Counsel for the accused.
Conclusion
18. From the facts of the case it appears that complainant is being victimized by the accused on account of his superiority in service. The defence raised by accused appears to be sham as such it is unimaginable that a person of sepoy rank can misuse the cheques of his superior under whom he is working and file a frivolous case against him. Further from the facts of the case it appears that accused and complainant were having cordial relationship and more than just being a superior and sub ordinate and the chances of accused taking benefit of his position over complainant are much more higher than visa versa. The complainant story appears to be probable as such accused might have availed friendly 17 loan from the complainant after prompting him by way of undue influence or providing any favour to him in his service to obtain a personal loan from the bank. The complainant appears to have obeyed what his superior asked him to do and as such his position was misused for the personal gain by the accused which is against ethics, morals and service rules of any government department. The fact that the complainant was a sepoy and perhaps he could not gather courage to refuse the demand of his superior or got enticed from the favour which could h ave been showered by the accused to the complainant acceded to his demand and gave a friendly loan to the accused. The story of the lost cheques is again sham as such on the same day as stated by accused, the complainant had gone to his home and accused being superior officer of the complainant was so generous that he accompanied the complaint to see him off up till Metro Station goes to show that the relationship between accused and complainant is more than the official relation. The claim of innocence of the accused appears to be fake and is more pointing out towards the guilt of the accused and it is impossible that during the time accused accompanied the complainant to Metro Station, three cheques were lost by the accused which were duly signed by him and were kept in a briefcase. From the facts and circumstances of this case, it is writ large that the accused firstly availed the personal 18 loan from the complainant on the pretext of marriage of his daughter by undue influence and later on avoided the payment and only when he left with no excuse he issued cheques which later came dishonoured and to suppress this made a false complaint to the police regarding the missing of three cheques which included the cheques in question also.
19. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubt. All the ingredients of Section 138 of Negotiable Instruments Act stands satisfied. Accordingly, accused stands convicted of the offence u/s 138 Negotiable Instruments Act. Let the copy of this judgement be supplied to the accused free of cost.
Announced in the Open Court (PANKAJ SHARMA) today on 23rd day of February, 2013 MM : Dwarka : Delhi