Delhi District Court
Cc No. 7317/2021 Sh. Balbir Singh Rawat vs . Sh. Ramesh Kumar Page No.1 Of 12 on 30 May, 2023
IN THE COURT OF SH. SAHIL MONGA, MM NI DIGITAL COURT-02
PHC-NEW DELHI
JUDGMENT
CC No.7317-21 Shri Balbir Singh Rawat S/o Late Shri Mangal Singh R/o C-307, Albert Square Block No.6 ,Gole Market Delhi-110001 ........................................................ Complainant Versus Shri Ramesh Kumar S/o Ram Kumar Room No 222A( Now at room no 427), Ministry Of Power , Sharamshakti Bhawan Delhi-110001 ........................................................Accused
a) Unique/new case number : DLND02-020532-2021
b) Name of complainant :Shri Balbir Singh Rawat
c) Name of accused person(s) : Shri Ramesh Kumar
d) Offence complained of : Under Section 138 of N. I. Act,1881
e) Plea of accused person(s) : Pleaded not guilty
f) Final order : Convicted
g) Date of such order : 30.05.2023 BRIEF STATEMENT OF THE REASONS FOR THE DECISION SAHIL Digitally signed by SAHIL MONGA MONGA 03:41:34 -0500 Date: 2023.05.31 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.1 of 12 (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.) Case of the complainant
1. The present Judgment is a result of culmination of trial initiated on the complaint filed by the complainant. It is submitted in the complaint that the accused was in urgent need of money and requested the complainant for a friendly loan of Rs. 2,50,000. The complainant after executing a loan agreement(Ex. CW1/A) with accused on 31.08.2020 made payment of Rs. 2,50,000 to the accused. It is further stated that accused made payment of Rs. 75000 out of Rs. 2,50,000 till January 2021. Thereafter accused stopped making the payment and after several requests, accused had issued cheque of Rs.1,75,000/- bearing No. 125514 dated 01.11.2021 (EX.CW1/B) drawn at Union Bank Of India, Shram Shakti Bhawan Branch , New Delhi in the name of the complainant.
2. Complainant presented the cheque in question to his banker for encashment but the same was returned unpaid with the endorsement "Funds Insufficient" vide returning memo dated 03.11.2021 (Ex. CW1/C)
3. The complainant demanded the above said amount from the accused but he did not make the payment. Thereafter, complainant sent a legal notice dated 09.11.2023 (Ex.CW1/D) to the accused. The accused failed to make the payment of the cheque amount to the complainant within the stipulated period. Hence, the present complaint case was filed
4. Pre summoning evidence was recorded and proceedings were initiated against accused Ramesh Kumar. On summoning, accused entered his appearance and thereafter notice under section 251 CrPC was put to the accused on SAHIL Digitally signed by SAHIL MONGA MONGA Date: 2023.05.31 03:41:41 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.2 of 12 03.02.2023.
The Defence
5. Plea of defence was recorded on 03.02.2023 wherein accused stated that "
The cheque in question was given as a security cheque at the time of taking loan initially in 2018. I had taken a loan of Rs. 2.5 lakh from the complainant in 2018.I had paid entire amount to the complainant in installments through cash and online. Thereafter the complainant started disturbing me and my wife for intrest and also made me execute a loan agreement of Rs. 2.5 lakh by threatening me. Thereafter also ,I paid some amount to complainant. I do not have any liability towards the cheque in question. Complainant has misused the cheque in question".
The Law
6. To bring home the guilt of the accused, the complainant has to prove beyond reasonable doubt elements of Section 138 Negotiable Instrument Act by crossing the following legal benchmarks.
a) The cheque was drawn by drawer on an account maintained by him with the banker for payment of any amount of money out of that account to the complainant.
b) The said payment was made for discharge of a legally enforceable debt or othis liability, in whole or in part.
c) The said cheque was returned unpaid by the bank.
d) The cheque was presented to the bank within a period of three months from the date on which it was drawn or within the period of its validity whichever is earlier.
e) The payee or the Holder in due course of the cheque as the case may be made a demand for the payment of the said amount of money by giving the Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.3 of03:41:45 12 -0500 notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
f) The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice. Appreciation of Evidence and Application of the law to the facts of present case
(i) Issuing of Cheque
7. The first ingredient of offence u/s 138 N.I.Act which has to be established by the complainant is that the cheque in dispute was drawn by the accused on an account maintained by him with his banker and was given to the complainant. The accused admitted in his plea of defence that the cheque in question bears his signature. Thus, it has been established that the cheque in dispute was drawn by the accused on his account maintained by him with his banker.
(ii) Presentment and Dishonour of Cheque(s)
8. The next ingredient to be proved by the complainant is that when the cheque in dispute was presented for encashment, it was returned by the bank unpaid. Complainant as CW-1 has deposed in his affidavit that cheque in dispute were presented for encashment but the same were dishonored due to "Funds insufficient" . The original returning memo has also been produced for the same and they have not been disputed by the accused. Therefore, the factum of presentment of cheque within its period of validity and the factum of its dishonor stands established.
(iii) Legal Demand Notice
9. The accused in his plea of defence stated that he did not receive the legal demand notice. The original legal demand notice and postal receipts have been Digitally signed SAHIL by SAHIL MONGA MONGA Date: 2023.05.31 03:41:50 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.4 of 12 placed on record by complainant. The accused has not challenged the postal receipt and has not pleaded at any stage of proceedings that he was not residing at the said address mentioned on legal demand notice. At this juncture, reliance is placed upon the judgment passed by Hon'ble Supreme Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed, 2007 (6) SCC 555 wherein it has been held:
"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 thise 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 othis 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 SAHIL Digitally signed by SAHIL MONGA MONGA 03:41:55 -0500 Date: 2023.05.31 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.5 of 12 notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
Therefore, in such circumstances, presumption under section 114 Indian Evidence Act and section 27 of General Clauses Act can be raised to the effect that notice was duly served upon the accused. The presumptions have not been rebutted by the accused therefore it can be safely established that accused received the legal demand notice.
10. Admittedly, accused did not make the payment of cheque amount within stipulated period after receipt of the demand notice and therefore cause of action against the accused arose and the present complaint was filed.
(iv) Legally Enforceable Debt or othis Liability- Presumption
11. Once the fundamental ingredients which give rise to cause of action u/s 138 N.I.Act have been established a mandatory presumption u/s 139 of N.I.Act, is effected in favour of complainant and it also extends to the existence of legally enforceable liability itself.
12. A three judged bench of Hon'ble Supreme Court in Rangappa Vs. S.Mohan (2010) 11 SCC 441 has held that:
"In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable dept or liability. To the extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct."
13. Since in the present case, the complainant has successfully established that the cheque in dispute was issued by the accused and the same got dishonored and the accused failed to make the payment even after service of statutory notice, a Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 03:42:01 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.6 of 12 presumption u/s 139 N.I.Act is drawn in favour of the complainant to the effect that the cheque in dispute was issued by the accused for a legally enforceable debt.
(v) Rebuttal of Presumption by Accused
14. Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets decided on 16.12.2008 has further held :-
To rebut the statutory presumptions an accused is not expected of to prove his defence beyond reasonable doubt as is expected of the complainant in criminal trial.
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that thise was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the consideration and which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 03:42:05 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.7 of 12 exist.
Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumption under Section 118 and 139 of the Act will not again come to the complainant's rescue.
15. In the present case, this court is of the opinion that the accused has failed to rebut the mandatory presumption of law and has also failed to controvert the story of the complainant or to establish his own story. This opinion of the court is based upon the following observations:-
Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 03:42:10 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.8 of 12 15.1. In the present case, the accused has admitted in his plea of defence that the cheque in question bears his signatures. In his plea of defence that accused has further admitted that he had taken a loan of Rs. 2.5 lakhs but it was taken in 2018 and he has paid the entire loan amount to the complainant.. He further stated that the complainant started disturbing him and his wife for interest and made him execute a loan agreement of Rs. 2.5 lakhs by threatening him..
15.2. The complainant examined himself as CW-1 and brought on record a loan agreement which is Ex. CW1/A. A bare perusal of the said documents shows that a transaction of Rs. 2,50,000/- took effect between the complainant and the accused under took to repay Rs. 2,50,000/- to the complainant. The signatures on Ex. CW1/A and the execution of the said documents have not been denied by the accused anywhere. The accused in his plea of defence and in his statement U/s 313 Cr.P.C. has stated that the loan agreement was made to be executed by the complainant under pressure. It is noteworthy that no complaint in any forum was lodged by the accused regarding the threats given by the complainant and constraining the accused to execute a loan agreement for a loan which allegedely has been repaid by the complainant. The complainant was cross-examined at length by the Ld. Counsel for accused but nothing substantive to disbelieve the said document could be brought on record. Hence Ex. CW1/A remained unimpeached which corroborates the case of the complainant and inspires the confidence of the court to believe the story of the complainant that a loan of Rs.
2,50,000/- was given by the complainant to the accused in August, 2020 on executing a loan agreement. Mere oral submission in the absence of any satisfactory evidence can not be accepted as a gospel truth to accept the version of accused and disbelieve the story of complainant. 15.3. The fact that accused paid Rs. 18,000/- to the complainant on 08.08.2019 Digitally signed SAHIL by SAHIL MONGA MONGA 03:42:15 Date: 2023.05.31
-0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.9 of 12 and Rs. 1,00,000/- to the complainant on 30.09.2019 is not denied by the complainant in his cross-examination but it does not prove the defence of the accused that the loan in question was given in 2018 as in the cross-examination of CW-1, he has stated that accused had taken several loans from him before 2020 also. The loan in question was not the first loan taken by the accused from the complainant. The accused has failed to bring any evidence on record to prove that the loan in question was taken by him in 2018. The accused has also failed to connect the said payment of Rs. 1,18,000/- with the loan in question and there is a possibility that the said payment of Rs. 1,18,000/- was made to the complainant for the disbursement of some earlier loan.
15.4. The accused did not examine himself even after due opportunity and also could not produce any witness to buttress his case. Furthermore nothing substantive in the cross-examination of the complainant could be brought before the court by the Ld. Counsel for accused to disbelieve the version of complainant. It is noteworthy that no complaint in any forum was lodged by the accused before or after that dishonour of the cheque in question regarding the misuse of the cheque in question by the complainant.
15.5. It is further noteworthy that the cheque in question returned unpaid due to the reason "Funds Insufficient". The accused failed to issue any stop payment instruction to his bank. This raises a suspicion over the claim of the accused that the cheque in question was misused as any prudent person who has paid the loan amount would immediately after such incident would lodge a police complaint or at-least give a notice in writing to a person who has been withholding something as valuable as signed cheque. Any reasonable person who has issued security cheque for loan but has repaid the loan would first Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 03:42:22 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.10 of 12 demand his cheque back and in case of not receiving the cheque back would rush to give instructions of stop payment as he is very well aware that the cheque he has issued might be misused and not doing so raises a suspicion over the case of the accused.
15.6. As soon as complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumption under section 118 and 139 of NI Act help him shift the burden on the accused. The presumption will live exists and survive and shall end only when the contrary is proved by the accused.
In the present case the issuance of the cheque has been admitted and this raised a presumption in favour of complainant and against the accused that instruments were issued by the accused for the discharge of legally enforceable debt which stands unrebutted. The accused has not been able to probabalise his defence that the complainant might have misused the cheque in question .
16. In the opinion of this court, the complainant has disclosed the existence of a legally enforceable debt/liability. The complainant has also proved the ingredients of Section 138 of Negotiable Instrument Act,1881. However the accused has failed to prove his defence and in rebutting the presumption of legal liability even on the scale of preponderance of probabilities and the defence of the accused cannot be termed as a plausible defence. The presumption of legal liability u/s 118 (a) r/w Section 139 NI Act has gone un-rebutted and the complainant has successfully proved the basic ingredients of the offence u/s 138 of the NI Act.
CONCLUSION
17. As such, I hold that accused failed to rebut the mandatory presumption of Digitally signed by SAHIL SAHIL MONGA MONGA Date:
2023.05.31 03:42:27 -0500 CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.11 of 12 law drawn in favour of the complainant.
18. I accordingly return a finding of guilt against the accused Sh. Ramesh Kumar.
19. The accused Sh. Ramesh Kumar is hereby convicted for the offence as punishable under Section 138 N.I.Act, 1881. Digitally signed by SAHIL SAHIL MONGA MONGA Date:
Announced in the open Court 2023.05.31
03:42:31 -
On 30.05.2023 0500
(Sahil Monga)
M.M.-07(N.I.Act)/Central,
THC/Delhi/30.05.2023
CC No. 7317/2021 Sh. Balbir Singh Rawat Vs. Sh. Ramesh Kumar Page No.12 of 12