Delhi District Court
Manoj Kumar Gupta vs Manoj Kumar Cc No. 1 on 30 August, 2011
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
30.08.2011
JUDGMENT
a. Serial No. of the case
1422/10
b. Date of the commission of the offence
04.06.2003
c. Name of the complainant
Manoj Kumar Gupta
d. Name of accused person and his parentage and residence
Manoj Kumar, S/o Suresh Kumar, R/o 144, Old Gupta Colony, Delhi.
e. Offence complained of or proved
Dishonor of cheque for 'insufficient funds' punishable u/s-138 NI Act. f. Plea of the accused and his examination (if any) Not guilty. Cheque given to the complainant but not against liability. No legal demand notice. No liability. g. Final Order Held guilty. Convicted. h. Date of such order 30.08.2011 i. Brief reasons:
The complaint case at all relevant point of time being tried as summons trial, deserves a judgment to be pronounced under Section-355 Cr.PC.
Manoj Kumar Gupta has filed 3 complaints against the accused. He has filed one complaint in his personal capacity and rest of two complaints in the capacity of authorized representative.
The Complainant claimed the following events:
Accused and complainant are on friendly terms.
The loan of Rs.3,70,000/- was advanced to the accused. Rs.20,000/- was available with the complainant, Rs.2,50,000/-Manoj Kumar Gupta vs Manoj Kumar CC No. 1
was taken from the wife of the complainant and Rs.1 lac was taken from the mother of the complainant and, thereafter, the total amount was given to the accused on loan.
Mother and wife of the complainant had given the amount by way of cheques in favour of the accused.
The accused had given a writing on the stamp paper to the wife and also to the mother of the complainant to the effect that accused had taken this amount from them.
Cheques issued by the wife and mother of the complainant were encashed by the accused and rest of the amount i.e. Rs. 20,000/- was given in cash.
Eventually the accused issued three cheques for Rs.20,000/-, Rs.2,50,000/- and Rs.1 lac in favour of the complainant, wife of the complainant and mother of the complainant respectively. The said cheques when presented were dishonoured but accused failed to pay the amount despite legal demand notice.
Stand of the accused:
He knew the complainant Manoj Gupta since long.
Accused had taken a loan of Rs. 70,000/- from Manoj Gupta. Accused has already paid Rs. 50,000/- against the said loan and only Rs. 20,000/- is due.
Accused had given the cheque of Rs.20,000/- to the complainant to discharge the laibility of the remaining amount of the said loan.
No other loan was taken from the complainant or his family members.
Manoj Gupta had brought a sum of Rs.3,50,000/- in the bank of the accused and deposited the amount in the account of his mother and his wife. Thereafter, he has handed over two cheques, one for Rs.2,50,000/- and second for Rs.1 lac from the account of his wife and his mother respectively to the accused.
Subsequently, complainant taken three cheques (subject matter of these three complaint cases) from the accused.
All these things were done on the premise that the complainant was to show some business transaction to some Raj Kishore.
Accused had given in writing the receipt of payment. However the same was only for showing the transaction to some other person.
Complainant never returned the said documents and cheques.Manoj Kumar Gupta vs Manoj Kumar CC No. 2
Position appearing from the cross-examination of the complainant:
Complainant denied the suggestion that he was borrowing the money from the accused.
Complainant further denied the suggestion of receiving any payment of Rs.7,000/-, monthly installment of Rs.18,500/- and also of Rs.10,000/- and also of Rs.5,000/-.
Complainant denied the suggestion of having knowledge about the address of the shop of the accused.
Complainant also denied the suggestion that accused ever agreed to pay interest @ 1.5 % per month on the sum of Rs. 2,70,000/-.
Complainant also denied the suggestion that the dispute with the accused was only in respect of Rs.2,70,000/-.
Complainant further denied the suggestion that he has already received the amount of Rs.2,70,000/-.
Position of the accused appearing from his cross examination:
The cheque was given when the writing on a stamp paper was executed.
There was no threat, force or coersion from the side of Manoj Gupta, Vinita Gupta and Asha Rani.
Two cheques of Rs.2,50,000/- and Rs.1 lac respectively from the account of mother and wife of the complainant were handed over to the accused. The same had been encashed by the accused in his own account.
Subsequently, complainant taken three cheques (subject matter of these three complaint cases) from the accused.
One cheque was also given to the complainant in favour of self for Rs.3,50,000/- dated 26.10.2002 and complainant received the payment in respect of this cheque.
Writing on stamp paper Exh.CW1/2(in two cases filed by the mother and wife of complaintant, writing was given) was executed by the accused.
2. In my considered view, in the absence of any supporting material being provided or any prudent conduct of the accused in dealing with his cheques being established, a mere explanation can not be accepted as displacing the burden cast upon the accused by the mandatory presumptions of law arising under Section 118, 139 NI Act. Nature and extent of these presumptions and necessary requirements of the offence have already been settled by the Hon'ble Supreme Court vide Rangappa Vs. S. Mohan (2010) 11 SCC 441, Hiten P. Dalal v. Bratindranath Banerjee, 2001 (6) SCC 16, (all the decisions are of three judges bench. And contrary view of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC Manoj Kumar Gupta vs Manoj Kumar CC No. 3 54 has been overruled), Jugesh Sehgal Vs. Shamsher Singh Jogi decided on 10.07.2009, and by Hon'ble Delhi High Court vide V S Yadav vs Reena CrLA No. 1136/2010 decided on 21.09.2010, Rajesh Agarwal vs State decided on 28.07.2010. (Since some of the judgments have not been mentioned with the citation, a copy of the same are being placed on record for convenience).
3. A bare look at the position extracted above goes to show that the accused is not having even a plausible defence. Several suggestions made by the accused in respect of the disputed amount of Rs.2,70,000/- or the making of the payment thereof are clearly going against the stand of the accused that no liability was there on the part of the accused. Further suggestions of having paid several amount in installments are also fortifying the view that liability was there against the accused.
The explanation given by the accused as to the circumstances of issuance of the cheques is neither here nor there. No prudent person will issue cheques in such manner as proposed by the accused. Even the accused has not taken any action against the complainant when the complainant failed to return the cheques as alleged by the accused. This non action itself shows that there is no force in the defence taken by the accused.
Interestingly, accused had also given on stamp paper in writing the factum of the receiving of the amount from the mother and wife of complainant. He, however, claimed that the same were given for the purpose of showing a transaction to some other person. This explanation cannot even be believed more so when accused has not taken any steps against the complainant or his mother/wife in respect of the alleged misuse of the cheques and such writings.
4. The accused has, however, tried to rely upon Exh.DW1/A to contend that a self cheque of Rs.3,50,000/- was encashed on the same day when Rs.3,50,000/- was deposited in his account from the mother and wife of the complainant. This document is a copy of printout and bearing a certificate signed by the Branch Head of the concerned bank. I am of the considered view that this document cannot be relied upon. Section-2A of Bankers Book Evidence Act 1891 requires certification of such printout or the copy thereof also by the person in charge who are maintaining the device that to in two different ways. But this document is only signed by the Branch Head and further certification in accordance with Section-2A has not been appended thereon. In such circumstances, this document cannot be read in evidence.
Even otherwise if we go through the document, the same is going against the accused himself. The accused has claimed that the payment of Rs.2,50,000/- and Rs.1 lac respectively from Vinita Gupta and Asha Rani were received through cheques whereas the document is showing the status that a single amount of Rs.3,50,000/- was deposited in the account of accused by transfer. The fact is not in conformity with the statement made by the accused. Be that as it may. The document is not being relied upon as it is not admissible in evidence.
5. The accused has also tried to punch some small holes by saying that he had not received any legal demand notice. However, he has failed to rebut the mandatory presumptions of law arising U/s 27 General Clauses Act. He has not taken stand that the address was incorrect. He has only said that he was not residing at the address at the said time.
Ld. counsel for the accused has cited several judgments on the point of service of notice. I consider that it would Manoj Kumar Gupta vs Manoj Kumar CC No. 4 be sufficient to quote a three judges bench of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 has held that:
"17. 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 drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made 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 receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend 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 G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference."
The legal demand notice was sent at the following address of the accused:
Address: 144, Old Gupta Colony, Delhi, Address: 579, Ground Floor, Gali-Ghanteshwar, Katra Neel, Chandni Chowk, Delhi, Address: No.1066, Gali Raja Agarsan, Bazar Sita Ram, Hauz Qazi, Delhi and Address: No.3269, Gali Lal Darwaja, Bazar Sita Ram Hauz Qazi, Delhi Manoj Kumar Gupta vs Manoj Kumar CC No. 5 In his examination-in-chief accused has stated following in respect of his address:
He was residing at 144, Old Gupta Colony, Delhi on 01.07.2003 but left the address on 25.04.2004.
(pertinently the legal demand notice was sent on 09.06.2003 on this address. Clearly the address was correct at the relevant point of time. The presumption U/s 27 General Clauses Act has to go in favour of the complainant).
In his cross-examination, accused has stated the following:
"I was carrying on business on 07.06.2003 from 579, Ground Floor, Gali-Ghanteshwar, Katra Neel, Chandni Chowk, Delhi".
(he has, however, tried to withdraw his statement in the next sentence by saying that he was not carrying on his business on the said date from the said address. This was clearly an afterthought).
The accused in his cross-examination further stated the following:
"I had a concern in the name and style of M/s Manoj Traders. The said concern was being run from premises No. 1066, Gali Raja Agarsan, Bazar Sita Ram, HQ, Delhi."
"I was residing at 3269, Gali Lal Darwaja, Bazar Sita Ram HQ, Delhi, since my birth and I resided at the said address till the year 2001. It is correct that my family members are still residing at premises No.3269, Gali Lal Darwaja, Bazar Sita Ram HQ, Delhi."
"It is correct that in case any letter is sent to the premises No.3269, Gali Lal Darwaja, Bazar Sita Ram HQ, Delhi then the same will be received by me."
(Clearly, the addresses mentioned in the Legal Demand Notice are not wrong. Even accused was residing at Gupta Colony at the relevant point of time as discussed earlier. The other addresses were also correct and letters could have reached the accused on those addresses. It cannot be believed that none of the letters were received by the accused).
Accused has, however, contended that the registry receipts are forged as at the relevant point of time, registry was not made on the Counter No.4 of Tis Hazari Post Office. For this he has examined DW2 Postal Assistant from Tis Hazari Post Office.
This witness is of no help. He has stated that he did not know anything about the functioning of Post Office from Counter No.1 to 6 prior to the computerization as he joined only six months back. Clearly this witness has established nothing.Manoj Kumar Gupta vs Manoj Kumar CC No. 6
In the light of the above discussion, accused cannot claim to have rebutted the mandatory presumption of law arising U/s 27 General Clauses Act.
As observed in CC Alavi Hazi (Supra), service has to be deemed to have been effected.
6. In the arguments, Ld. counsel for the accused has also raised a contention that AR can not file the complaint and also he can not depose on behalf of the complainant. For this he has relied upon several judgments. I consider that the contention has to be rejected summarily. It is now a settled law that complaint can be filed by the AR of the complainant. So far as evidence is concerned, it is also settled that if the AR is having the knowledge of the transaction, he can also depose in evidence.
After referring to earlier decisions, the Hon'ble Supreme Court in M/S. Shankar Finance & ... vs State Of Andhra Pradesh & Ors on 26 June, 2008 has held that:
"10. This Court has always recognized that the power of attorney holder can initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma v. State of Bihar and Anr. [AIR 1967 SC 349], the prosecution was commenced in regard to tampering of electric meter seals, with a charge sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of PatnaElectric Supply Co. (`PES Co.' for short). An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so. The said objection was based on section50 of the Indian Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. This Court held : "... The P.E.S. Co., however, is a body corporate and must act only through its directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be untenable."
12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed Manoj Kumar Gupta vs Manoj Kumar CC No. 7 by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon v. State of West Bengal - 1973 (3) SCC 753). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payee- complainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the payee-complainant, there is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [2005 (2) SCC 217], where the scope of an attorney holder `acting' on behalf of the principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed: "Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by them power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."[Emphasis supplied] The principle underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity."
In the above judgment, the emphasis is on the fact that the AR should have knowledge of the transaction if he is to depose in evidence. I find no justification for not applying the above principle also to AR of any individual complainant Manoj Kumar Gupta vs Manoj Kumar CC No. 8 where the AR has complete knowledge of the transaction. In the instant cases, virtually transaction was done only by or with the Manoj Gupta i.e. AR in two cases. The payee i.e. the mother and wife of complainant in two cases are only the persons in whose name two cheques were issued but the transaction was made by Manoj Gupta i.e. the AR. The contention of the ld. counsel for the accused is liable to be rejected.
Result:
7. In the fact and circumstances discussed above, I am of the considered opinion that accused has failed to rebut the mandatory presumptions of law arising in favour of the complainant. The complaint has to succeed.
8. I accordingly return a finding of guilt against the accused person.
9. The accused Manoj Kumar is hereby convicted for the offence punishable under Section-138 NI Act, 1881.
10. Let the convict be heard on the point of sentence.
11. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM(NI Act)-01, Central/30.08.2011 Manoj Kumar Gupta vs Manoj Kumar CC No. 9