Delhi District Court
Cc No.5065/14 Shri Sandeep Singh vs . on 30 May, 2015
IN THE COURT OF SH. ARUN GOEL,
METROPOLITAN MAGISTRATE (N.I ACT - 02),
DWARKA COURTS, NEW DELHI.
Shri Sandeep Singh
S/o Shri Narain Singh
R/o H. No. 561, SFS DDA Flats,
PKT22A, Sector22, Dwarka,
New Delhi110 075. ....Complainant
Versus
Shri Amarveer Singh @ Amar Rana
S/o Shri Rajpal Rana
R/o G103, Gali No. 24,
Rajapuri, Uttam Nagar,
New Delhi110 059. ....Accused
Serial No. of the case : 5065/14
Name of the complainant : Shri Sandeep Singh
Date of Institution : 14.02.2014
Name of the accused : Shri Amarveer Singh
@ Amar Rana
Date when judgment was : 23.05.2015
reserved
Date when judgment was : 30.05.2015
pronounced
Offence complained of and
proved : U/s 138 NI Act
Plea of accused : Pleaded not guilty
CC No.5065/14 Shri Sandeep Singh vs.
Shri Amarveer Singh @ Amar Rana
Page No. 1 of 9
Final Judgment : Convicted
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¨ JUDGMENT
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1. Vide this judgment, I shall dispose off the criminal complaint filed
Under Section 138 of the Negotiable Instrument (herein after referred as 'NI Act')
filed against the accused Shri Amarveer Singh @ Amar Rana.
BRIEF FACTS OF THE COMPLAINT ARE AS FOLLOW:
2. It is stated by the complainant that the accused is known to the complainant for the last several years. The accused was in financial need and in the month of November 2013 approached the complainant for a loan of Rs. 98,00,000/ and promised to repay the loan within a period of two months. A mutual agreement was also entered between the complainant and the accused on 20.11.2013. The complainant advanced a loan of Rs. 98,00,000/ to the accused. The accused handed over three post dated cheques bearing no. 045311, 045312 and 045314. All drawn on IDBI Bank for the repayment of said loan. Out of three cheques, the present complaint is with regard to two cheques bearing no. 045312 dated 25.12.2013 for a sum of Rs. 51,00,000/ and 045314 dated 30.12.2013 for a sum of Rs. 10,00,000/. Both drawn on IDBI Bank were presented for encashment. They were returned unpaid with remarks 'funds insufficient' vide return memo dated 06.01.2014. Thereafter, the complainant issued a legal notice dated 24.01.2014 to the accused, calling him to pay the cheque amount within the prescribed period. However, accused failed to pay the cheque amount and the complaint u/s 138 NI Act was filed on CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 2 of 9 14.02.2014.
3. After filing of the complaint, the complainant lead pre summoning evidence and examined himself as CW1. He tendered his evidence by way of affidavit which was Ex.CW1/1. He relied upon documents namely:
(a) Mutual Agreement dated 20.11.2013 between the parties as Ex.CW1/1.
(b) Original Cheques are as Ex.CW1/2 and Ex.CW1/3. (c) Return memo as Ex.CW1/4. (d) Legal demand notice as Ex.CW1/5. (e) Postal receipt as Ex. CW1/6. (f) Delivery Report as Ex.CW1/7.
4. Then, the accused was summoned vide order dated 20.02.2014. After appearance of accused, notice u/s 251 CrPC was framed upon the accused on 14.10.2014 to which accused pleaded not guilty and claimed trial. He was granted opportunity to cross examine the complainant. He cross examined the complainant.
Complainant also examined Shri Jagbir Singh as CW2. He was one of the attesting witness of the mutual agreement which is Ex.CW1/1. He stated that agreement was signed in his presence. He also stated that complainant had given Rs. 98,00,000/ to the accused and accused has given three post dated cheques to the complainant. The said witness was cross examined by the accused. Thereafter, the complainant cross examined Smt. Omi Devi as CW3 who has stated that complainant had taken amount of Rs. 70,00,000/ from him for the purpose of investment. The said witness was cross examined by the accused and CE was closed vide order dated 02.02.2015. Thereafter, matter was listed for statement of accused u/s 313 CrPC and the statement CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 3 of 9 of accused u/s 313 Cr.P.C. was recorded on 02.03.2015. Accused stated that he wants to lead his defence evidence.
5. In defence evidence, accused examined Shri Devi Dayal as DW1 who stated that mutual agreement Ex.CW1/1 was not attested in his presence. He further cross examined Shri Tarun Singh as DW2, Shri Rajesh Sinha as DW3 and Shri Pawan Kumar as DW5. All the three witnesses were examined to prove that the house at which the legal notice served was already sold by the accused and the accused was not residing in the house when the legal notice was send by the complainant. Accused examined himself as DW4. Accused was cross examined and DE was closed on 10.04.2015. Thereafter, the matter was adjourned for final arguments.
6. Final arguments were advanced by the parties.
7. In this case, Ld. Counsel for the complainant has argued that the cheque was issued by the accused for the repayment of the loan that is against legal liability and when the cheque was presented for encashment, it was dishonoured. Thereafter, legal notice was issued upon the accused for making the payment, despite receipt of the legal notice, accused failed to make the payment. Ld. Counsel for the complainant further submitted that all the necessary ingredients of Section 138 NI. Act has been proved and the accused is liable to be convicted under Section 138 of the N.I Act.
8. The Ld. counsel for the accused has stated that the present complaint is not maintainable as the complainant has failed to prove his case. Ld. counsel for the CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 4 of 9 accused has raised the following objection:
(i)The accused has stated that he has not taken any loan from the complainant.
(ii) He has not received any legal notice from the complainant.
9. Coming to the first contention of the accused, accused in the present case has stated that agreement was executed between the parties for an amount of Rs. 98,00,000/ but he was not provided the loan by the complainant. He has also stated that the blank signed cheques were taken by the complainant from IDBI Bank which have been misused. Before proceeded further it will be useful to have essential contention of the mutual agreement Ex.CW1/1 before us. It is also relevant to mention that the accused has not denied his signature on the above stated agreement. The agreement is as follows:
"Whereas the Party No. 1 is in need of financial loan of Rs. 98,00,000/ (Rupees Ninety Eight Lacs Only) and Party No. 2 has agreed to give the same to Party No. 1.
Whereas the Party No. 1 has received the said amount of Rs. 98,00,000/ (Rupees Ninety Eight Lacs Only) from Party No. 2 at the time of signing of this Agreement.
NOW THIS AGREEMENT IS WITNESSETH AS UNDER:
1. That Party No. 1 has given the following cheques in respect of repayment of the said loan amount to Party No. 2 as per details given below: Rs. 37,00,000/ Vide cheque No. 045311 dated 30.11.2013 Rs. 51,00,000/ Vide cheque No. 045312 dated 25.12.2013 CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 5 of 9 Rs. 10,00,000/ Vide cheque No. 045314 dated 05.01.2013
2. That it has been agreed between both the parties, that Party No. 2 can encash the aforesaid Cheque within due date."
10. Perusal of above mentioned paragraph reveals that the accused has admitted in the said agreement that he has received the amount of Rs. 98,00,000/ from the complainant and he has issued three post dated cheques for the repayment of the same. The accused has raised the defence that he has not received the loan but he has not stated about the steps taken by him to take back the documents from the complainant. Accused has also stated that the cheques have been taken by the complainant from IDBI Bank and he has misused them. But he has not placed on record any steps taken by him against the IDBI Bank. He has also not examined any person from IDBI Bank.
11. The accused has not explained why he had given blank signed cheques to IDBI Bank. It is not plausible that the person would give blank signed cheques to its banker in absence of any liability. The accused has not denied his signature on the cheque in question. The document Ex.CW1/1 clearly states that the accused had admitted that he had received the amount and issued cheques to the complainant. There is a presumption in favour of complainant. Accused has not able to rebut this presumption.
12. Coming to the second contention of the accused, it is stated by the accused that he has not received the legal notice issued by the complainant. The wife of the accused in this case has filed on record his surety bond mentioning the same CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 6 of 9 address i.e. H. No. G103, Gali No. 24, Rajapuri, New Delhi - 110059 which is the same as mentioned in the complaint filed by the complainant. The legal notice has been sent to the same address of the complainant. He has filed on record the postal receipts which are Ex.CW1/6 as well as legal notice Ex.CW1/5 which clearly mentions the address which is same as per the bail bond. She has also filed an affidavit with the bail bond stating that she was residing at the above mentioned address for 14 years and has shifted from that address in April 2014. In that case, the presumption under Section 27 of General Clauses Act will arise. It has to be presumed that the legal notice was served upon the accused. However, even if for the sake of arguments, it is admitted that the legal notice was not delivered to the accused, in that case,the accused cannot take benefit of the nondelivery in view of the judgment of Hon'ble Supreme Court reported as " C.C Alavi Haji V. Palapetty Muhammed Jain. J (2007) 6 SCC, wherein it was observed as follows:
13. "It is thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque the principle incorporated in Section 27 of the GC Act would be attracted: the requirement of clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause ( C) of the said proviso for payment by the drawer to show that he had no knowledge that the notice was brought to his address."
14. It is further observed that "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any CC No.5065/14 Shri Sandeep Singh vs. Shri Amarveer Singh @ Amar Rana Page No. 7 of 9 drawer who claims that the did not receive the notice sent by post, can, within 15 days of the receipt of the complaint under section 138 of the Act, make payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and , therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of the receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously content that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
15. Perusal of the above stated judgment reveals in cases where the only defence raised by the accused is that he was not served with the legal notice, in that case, it is essential for the accused to make the payment within 15 days after the receipt of summons. In this case also, the defence which is available with the accused is that he was not served with the legal notice. In that case, in view of the judgment of Hon'ble Supreme Court reported as C.C Alavi Haji Vs. Palapetty Muhammed (SUPRA) accused should have made the payment within 15 days of the receipt of the summons but it has failed to do so. There is no other defence available with the accused. Hence, this contention of the accused is also not tenable.
16. In the present case, the complainant has been able to prove that the cheque was issued by the accused and the same has been dishonored and thereafter legal notice has been issued and no payment has been made by the accused to the complainant.
CC No.5065/14 Shri Sandeep Singh vs.
Shri Amarveer Singh @ Amar Rana
Page No. 8 of 9
17. In view of above stated discussion, the complainant has been able to prove all necessary ingredients of the Section 138 of N.I Act. Accordingly, accused Shri Amarveer Singh @ Amar Rana stands convicted of offence U/s 138 N.I Act.
ANNOUNCED IN THE OPEN COURT
ON 30.05.2015 (ARUN GOEL)
METROPOLITAN MAGISTRATE (N.I.ACT) 02
DWARKA COURTS : DELHI
CC No.5065/14 Shri Sandeep Singh vs.
Shri Amarveer Singh @ Amar Rana
Page No. 9 of 9