Delhi District Court
Integra Securities Ltd vs . R.C. Gupta on 26 February, 2010
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC /
GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW
DELHI
Integra Securities Ltd Vs. R.C. Gupta
CC NO. 923/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case :923/1/09
(b) The date of the commission of the
offence : 19.5.1999.
(c) The name of the complainant :Integra Securities Ltd,
32, Regal Building,
Sansad Marg, New Delhi
through its Authorized
Officer Shri Adarsh
Aggarwal, Manager.
(d) The name of the accused persons,
and his parentage & residential address :Shri R.C. Gupta,
Authorized Signatory of
M/s Esteem Financial
Services, R-13, Ansal
Chambers-II, Bhikaji
Cama Place, New Delhi
110 029.
And also at:
B-2D, MIG Flats,
Mayapuri, New Delhi
(e) The offence complained of or proved : U/S 138 N.I. Act
(f) The plea of the accused : Pleaded not guilty
(g) The Final Order : Convicted
(h) The date of order : 09.02.2010
Facts as borne out from the complaint are as follows:
1. In the present complaint filed U/S 138 of NI Act, 1881 (In Short "the Act"), it is alleged by complainant company that accused, who is carrying on business in the name and style of M/s Esteem Financial Services, had issued a cheque No. 988543 dated 15.5.99 for Rs. 25,000/- in favour of complainant company, which was returned unpaid on presentation by the drawer Bank for "Stop payment by drawer" vide return memo dated 19.5.99. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 2.6.99 to accused through registered A.D and UPC. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. In view of the above, it is prayed that the accused be tried and punished as per law.
2. On 17.8.2000 the Court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused the Court summoned the accused for offence U/s 138 of the Act. On 27.8.04 accused appeared pursuant to the summons issued by the Court and was admitted to bail.
3. On 1.11.2004 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the complainant has examined PW1 Shri Neeraj Kumar Goel as PW1 by way of affidavit Ex.P1.
5. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation. In his examination U/s 313 Cr.P.C, the accused has admitted that he had issued the cheque, which got dishonoured. Accused submitted that he had not received any legal notice. Accused further submitted that cheque was not issued for any liability but it was issued in furtherance of the orders passed by Ms Sharda Aggarwal, the then Ld. ADJ. He further submitted that he had already paid the entire payment as per the court orders and that at the time of dishonourment of cheque, there was sufficient balance in account. Accused opted for leading evidence and has examined DW1 Shri Pawan Kumar Gupta, Canara Bank, NSE Branch, Connaught circus; DW2 Shri Anupam Goel, Officer ABN Amro Bank, Barakhamba Road, Connaught place and DW3 Shri Adarsh Aggarwal.
6. I have heard arguments of learned counsels for complainant and ld counsel for the defence and perused the relevant statutory provisions and evidence alongwith written arguments filed on record.
7. In order to knock down the edifice of complainant case, defence has argued with vehemence that complainant has not been able to establish the existence of legally recoverable debt. It is argued that the consideration and the debt as alleged did not exist at the time of filing of the complaint. It is contended that in fact AR Mr. Adarsh, who initially filed the complaint had already received the payment of Rs. 2,00,000/- which included the present cheque amount pursuant to judicial orders dated 1.12.98 and further order dated 8.9.99. It is argued that therefore the legal notice dated 2.6.99 issued by complainant has no significance in the eyes of law. It is argued that complainant has failed to prove the legal liability or any debt. It is argued that without permission of the Court, another affidavit of CW1 Shri Niraj Kumar was filed by complainant during post notice stage instead of that of earlier AR Shri Adarsh just to conceal the factum of having received entire payment pursuant to the order dated 1.12.98 of Ld. ASJ Ms. Sharda Aggarwal. It is argued that accused did not receive demand notice from complainant and the complaint is filed mala fidely and it conceals the material factum of pendency of other connected matter in respect of FIR NO. 477/98 and CR misc (main) No. 2451/99. It is argued that complainant company has concealed all the relevant facts in its complaint filed on 7.7.99 and it thus deserves dismissal on this count alone.
8. Per contra, it is argued by counsel for complainant that neither the issuance of cheque nor the said cheque having dishonoured because of "payment stopped" has been denied by the accused. It is argued that the nature of presumptions U/S 138 and U/S 139 of the Act are in favour of complainant. It is argued that the defence taken by accused is sham and stands falsified in view of the documents filed by complainant. Counsel for complainant has placed reliance upon various judgments rendered by Hon'ble Superior Courts.
9. Before embarking upon the factual issue involved herein, let us consider the provisions of Section 138 of Act. The requirements are :
(1) there is a legally enforceable debt (2) the drawer of the cheque issued the cheque to satisfy the whole or the part of the debt (3) the cheque so issued has been returned due to insufficiency of funds.
10. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to grant the relief.
11. In order to judge the legal and factual merit of the defence contention, it would be relevant to refer to Section 118 & 139 of the Act. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan ; AIR 1999 Supreme Court 3762; it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption.
12. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575, a judgment rendered by Constitution Bench of Supreme Court while clarifying the distinction between the discretionary and mandatory presumption.
13. From the aforestated settled legal principles, it is crystal clear that Section 118 of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact. The presumption has to be rebutted by proof and not by a statement or plausible explanation.
14. In this regard, I have considered the evidence produced by defence on record and have considered the judgments of Superior Courts relied upon by respective parties and have carefully perused the entire record. The fact of the issuance of cheque is not denied but it is stated by accused that the payment in pursuance to the cheque was already received by the complainant. It is contended that demand notice dated 4.6.99 is not received by accused and the complaint filed is thus bad in eyes of law. I have gone through the mode of sending the demand Notice at the residential as well as office address of the accused. The notice is returned with the remarks of to be sent at R-13, Ansal Chamber, Bhikaji Cama Place and the notice on the office address of the accused has been duly received as the returned envelope Ex.CW1/6 and the receipt Ex.CW1/5 (collectively) shows. I am also relying upon the judgment cited in 99 (2002) DLT 244 (DB), rendered by Hon'ble High Court Delhi. The reliance can also be placed upon the judgments cited in 2005 Cr.L.J 127, AIR 2002 SC 182 and in another judgment cited in AIR 1998 SC 1057. The law laid down in the aforesaid judgments is that the demand notice is deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Hence, in absence of any such evidence in this regard, a mere bald denial of having received the notice deserves rejection.
15. The most emphasized plea of accused in his defence is that the complainant has received the entire payment even towards the cheque in question. The contention further is that cheque is not issued against any liability but was issued in furtherance of the orders of Ms. Sharda Aggarwal, Ld. ASJ and which amount accused had already paid. Per contra, it is argued by counsel for complainant that no amount against the cheque has ever been received by complainant company. In this regard, I have gone through plea of accused on 1.11.2004, taken by him at the time of serving notice U/S 251 Cr.P.C upon him. The accused states that the full amount of Rs. 2 lacs was given to the complainant in four equal installments of Rs. 50,000/- each and all such amounts were given by the accused on different dates. The accused further states that he had sufficient balance in his account. The accused in his statement recorded U/S 313 Cr.P.C has admitted the issuance of the cheque Ex.CW1/1. He also admits sthat he was incharge and responsible for the business of his firm and was under liability of Rs. 42,09,280.45 as the statement of account Ex.CW1/2 shows. Having gone into the documents particularly the bank statements of complainant and copies of accounts corroborate the fact of all the payments entered in these accounts and that accused had to pay more than Rs. 42 lacs, on the date when the impugned cheque was issued. None of these witnesses are cross examined on this point.
16. The liability to bring the positive evidence was upon the accused. The accused has not produced any evidence / statement to prove the sufficient bank balance in his account. The liability to bring the positive evidence was more intense upon accused particularly when the contents of order dated 8.9.99 passed by Hon'ble High Court shows the accused was in the process of negotiations and settlement in respect of the cheque in question as well, even after the expiry of time in the legal notice dated 2.6.99. It is also the categorical stand of accused as reflected in written arguments filed by accused on 24.1.2008.
17. The transactions and part of liability being once admitted, it was the sole burden and the duty of the accused to prove the liability, when he was defending a presumption, which was supporting the dishonoured cheque. I have gone through the evidence adduced by defence. DW1 has proved the statement of account EX.DW1/A of complainant company. DW2 Shri Anupam Goel has proved the pay orders dated 23.2.99 and 28.4.99 issued in favour of complainant company. DW3 namely Shri Adarsh Aggarwal, working in complainant company is the summoned witness who has proved the issuance of the letter Ex.CW1/DX and Ex.DW3/A. The letter Ex.CW1/DX merely shows some part payments pursuant to the court order. It also shows a sum of Rs. 41 lacs outstanding from accused with further request to him to settle the amounts. The evidence adduced by these witnesses are of no help. It was for the accused to disprove the presumption by leading an evidence and the forbearance of the accused in bringing before the Court, the best evidence including his own testimony, renders the complainant's case not only proved but also left without traverse. Having gone through the record, I find that except for making a flimsy ground that the payment of the cheque was already received, nothing has come on record. The provision U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues cheques towards the discharge of a debt or liability as a whole or in part and the cheques is dishonoured by bank on presentation.
18. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/ S 138 N.I. Act. Let he be heard on the point of sentence on 26.2.2010 at 2.00 PM.
(Announced in Open Court (MS. RAVINDER BEDI) on 9.2.2010) JSCC cum ASCJ cum Guardian Judge (South) 9.2.2010 IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI Integra Securities Ltd Vs. R.C. Gupta CC NO. 923/1/09 U/s 138 N.I. Act 26.2.2010 2.00 PM ORDER ON SENTENCE Present: Counsel for complainant.
Convict's father present with counsel.
It is stated that the convict is unable to appear in the Court and is sitting in the Car, being unable to come upstairs due to severe physical ailments / bed sores.
1. I have heard the convict and his counsel on the Point of Sentence.
2. It is argued that convict is aged about 59 years and is inflicted with physical ailments. It is argued that the convict has a family to support. It is argued that convict has no previous antecedents and the learned counsel for the convict has prayed that a lenient view be taken in the present matter.
3. Counsel for the complainant to the contrary argues that since the convict had issued the cheque in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. It is argued that in a trial expanding over more than 50 hearings for the past 10 years, the convict seldom appeared and only his father used to appear. Referring to the judgments of superior Courts regarding provisions U/S 431 Cr.P.C and Section 357(3) of Cr.P.C,, Counsel has prayed for compensation considering the conduct of the Convict. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
5. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for one year alongwith fine of Rs. 50,000/- as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. Out of this amount, Rs. 25,000/- shall be payable to the complainant as compensation and Rs. 10,000/- to state within a month from today. In default of payment of fine payable to state, convict shall further undergo imprisonment for three months.
6. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
7. At this stage, counsel for convict prays for for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
Surety / his father is present.
Since convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs 10,000/- with one surety in the like amount.
Bail bond furnished and accepted till 27.3.2010. Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI) on 26.2.2010) JSCC cum ASCJ cum Guardian Judge (South) 26.2.2010