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[Cites 12, Cited by 0]

Delhi District Court

Shri Ujjwal Gupta vs Sh. Jatin on 11 March, 2015

                         THE COURT OF MS. NEHA PALIWAL
METROPOLITAN MAGISTRATE­03, KKD, EAST, NEW DELHI 

    Complaint No. 307/1/11

    Unique ID No. 02402R0290432011

    PS. Shakarpur

    Shri Ujjwal Gupta
    S/o Sh. Ram Avtar
    R/o R­2/41, Ground Floor,
   Ramesh Park, Laxmi Nagar,
   Delhi­110092                                                  ......... Complainant.

                                                  Versus 

   Sh. Jatin
   S/o Sh. Ram Avtar
   R/o S­143, School Block,
   Shakarpur, Delhi­110092          .........  Accused.

COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT

    Offence complained of                                 :          U/s 138 N.I. Act

    Plea of Accused person                                :          Not guilty

    Complaint filed on                                    :          22.09.2011

CC No.307/1/11                                Ujjwal Gupta Vs. Jatin                                        page No.  1 of 20
     Final Arguments heard &
    Concluded on                                          :          11.03.2015

    Date of decision of the case                          :          11.03.2015

    Final order                                           :          Accused is  acquitted for the 
                                                                     offence U/s 138 NI Act.

BRIEF FACTS AND REASONS FOR DECISION OF THE CASE

1. The present case has been instituted on the complaint of the complainant Ujjwal Gupta, U/s 138 Negotiable Instrument Act 1881 (as amended up to date) against the accused Jatin.

2. As per the complaint, it is the case of the complainant that the father of the accused was the tenant of the complainant. The complainant had filed a suit for possession and recovery of rent against the father of the accused, however, the father of the accused failed to make the payment of the decreetal amount and therefore, the complainant filed an execution petition for recovery of possession and recovery of part decreetal amount but then also though the possession of the shop was handed over to the complainant, the father of the accused failed to make the payment of the decreetal amount.

3. It is further the case of the complainant that before filing the CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 2 of 20 second execution petition he approached the accused and his father. The accused on 20.07.2011 contacted the complainant and issued a cheque bearing no. 060098 for Rs. 14,000/­ dated 25.07.2011 drawn on Bank of Baroda to the complainant as a guaranteer and in discharge of the part legal liability of his father and assured the complainant that the cheque would be honoured on his presentation.

4. It is the case of the complainant that however, when he presented the said cheque for encashment, the cheque was dishonoured with the remarks "Funds Insufficient", vide cheque returning memo dated 30.07.2011. Thereafter the complainant got issued legal demand notice dated 10.08.2011, dispatched on the same date to the accused, whereby the accused was asked to pay the said cheque amount of Rs. 14,000/­ to the complainant within 15 days.

5. It is the case of the complainant that as accused has not replied to the said notice within the period of 15 days, nor has paid the amount, the present complaint was filed by the complainant against the accused. Thus it is prayed by the complainant that the accused be tried and punished for the offence U/s 138 NI Act. CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 3 of 20

6. In the present matter the complaint was filed before the court on 22.09.2011. The cognizance of the offence was taken on 23.09.2011 and on the very same date the Ld. Predecessor of this court summoned the accused for the offence U/s 138 NI Act.

7. Thereafter, on 28.11.2011 the accused appeared before the court. He was admitted to court bail on the very same date and notice U/s 251 Cr.P.C. for the offence under section 138 NI Act was framed against the accused to which he pleaded not guilty and claimed trial.

8. It was submitted by the accused at the stage of framing notice that he had issued post dated signed cheque to the complainant in lieu of rent as his father has taken shop on rent from complainant. However, in January 2010 he made cash payment of rent to the complainant but the complainant did not returned the cheque to him despite several request. It was submitted by the accused that he had not received the legal notice and had no pecuniary liability towards the complainant.

9. As it was submitted by Ld. Counsel for complainant that he has no objection if the opportunity is granted to the accused to cross examine the complainant, Ld. predecessor of this court put CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 4 of 20 the matter straightaway for the purpose of cross examination of complainant and dispensed with the requirement of moving the application U/s 145(2) NI Act.

10. In order to prove his case, the complainant examined himself as CW­1 and tendered his evidence by way of affidavit Ex. CW­1/A, before the court and relied upon the documents exhibited as Ex. CW­1/1 to Ex. CW­1/4 and mark A which are as under:­

(a) Ex. CW­1/1 cheque bearing no. 060098, dated 25.07.2011 drawn on Bank of Baroda

(b) Ex. CW­1/2 Cheque returning memo dated 30.07.2011, State Bank of India containing the remarks 'Funds Insufficient'.

(c) Ex. CW­1/3 Legal Notice dated 10.08.2011. 

                     (d)        Mark A delivery report of Speed Post.

                     (e)        Ex. CW1/4 Postal Receipt.

11. During the cross examination the complainant was confronted with photocopy of Pass Book of the accused mark D1. As besides complainant no other witness was examined, on the CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 5 of 20 submission of the complainant post summoning evidence was closed, vide order of the court dated 9.05.2013. Thereafter, the matter was fixed for statement of accused and statement of accused was recorded before the court on 26.07.2013.

12. In the statement recorded u/s 313 Cr.P.C. r/w 281 Cr.P.C. it was submitted by the accused that he had given the impugned cheque to the complainant in lieu of rent, however, as there was some problem with the cheque, it could not be cleared. Thereafter, he paid to the complainant Rs. 14,000/­ in cash in two installments of Rs. 8000/­ and Rs. 6000/­. It was further submitted by the accused that he asked the complainant to return back the cheque, however, the complainant assured him that he would extend the rent agreement. It was further submitted that the complainant did not, however, extended the rent agreement and he had vacated the shop. It was further submitted that after he had vacated the shop the present cheque was presented by the complainant as it was earlier issued undated. It was further submitted that he had not received legal notice. As, it was submitted by the accused that he wishes to lead evidence in his defence, therefore the matter was fixed for defence evidence.

CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 6 of 20

13. Accused in support of his case has examined himself as DW­1 and has examined bank witness Sh. Suraj Kumar as DW­2. DW2 has brought before the court the summoned record pertaining to the account of accused for the period commencing from 05.11.2009 to 01.12.2009 and 30.07.2011 to 16.09.2011 Ex. DW1/2(Colly.) and copies of signature cards of accused Jatin Ex. DW2/2.

14. Defence evidence was closed in the present matter vide order of the court dated 03.12.2014 and the matter was fixed for final arguments.

15. I have heard the arguments as advanced by the ld. Counsel for both the parties and have perused the material available on record.

16. Before adverting to the case in hand it is necessary to discuss the law of the land as applicable to the present case in hand. The main ingredients of Section 138 of the Negotiable Instruments Act are as follows:­

(a) The accused issued the cheque on an account maintained by him with a bank.

(b) The said cheque has been issued in CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 7 of 20 discharge of any legal debt or other liability.

(c) The cheque has been presented to the bank within the period of six months from the date of the issuance of the cheque or within the period of its validity.

(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.

(e) The Payee of the cheque 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.

(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.

17. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.

18. In the present case in hand the accused has admitted before the court that he had issued the cheque to the complainant. DW2 is CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 8 of 20 the bank witness and has brought the summoned record pertaining to the account of the accused from the period of 05.11.2009 to 01.12.2009 and 30.07.2011 to 16.09.2011. As per that statement of account Ex. DW2/1 the cheque bearing no. 60098 was presented in the account of the accused on 01.12.2009, however, was returned uncashed on the ground that the instrument was undated. The same cheque bearing no. 60098 was again presented in the account of the accused on 30.07.2011 and was dishonoured on the ground of "Insufficient Funds" .

19. Thus, it is established before the court that the cheque Ex.

CW1/1 was the cheque drawn by the accused on an account maintained by him and the same was dishonoured on 30.07.2011 with the remarks "Insufficient Funds".

20. In the present matter though it is submitted by the accused that he had not received the legal notice, however, perusal of Ex. CW1/4 i.e. Postal Receipt shows that the same was addressed to the accused at the address of Shakarpur and the same address was mentioned in the memo of parties. Thus, the legal notice was sent to the accused by the complainant on the very same address which is mentioned in the memo of parties annexed with the present CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 9 of 20 complaint and the accused was served by the court on the very same address. Further more, the postal receipt regarding sending of legal notice is also proved on record.

21. In view of the same presumption arises U/s 27 of the General Clauses Act that the legal notice has been sent to the accused at the correct address in its due course. Hon'ble Supreme Court of India in the case of C.C. Alavi Haji Vs. Palapetty Muhammed 2007 (3) RCR (Crl.) 185 has held that any drawer who claims that he did not received the notice sent by post, can within 15 days of receipt of summons from the court in respect of the complaint U/s 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 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 alongwith the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required U/s 138, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and Section 114 of Indian Evidence Act. The Hon'ble Apex Court further held that when the notice is sent CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 10 of 20 by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of the issue of notice in terms of clause b of Proviso of Section 138 of the Act stands complied with.

22. In view of the said judgment, even if the court presumes that the accused has not received the legal notice but as he was served in the present matter and was supplied with the documents of the present matter, he could have made the payment within 15 days of the knowledge of the case thereof. In view of the same as the accused has not made the payment after entering appearance in the court, he cannot take the plea that the ingredients of Section 138 are not made out. Further more as accused was served on the very same address, presumption U/s 27 General Clauses Act goes that he was served with the legal notice.

23. Thus, the only ingredients which remains to be determined is whether the cheque was issued for the discharge of any debt or liability and whether the cheque was presented to the bank within the period of 6 months from the date of issuance or within the period of its validity.

24. Section 118 NI Act raises a number of presumptions of CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 11 of 20 consideration, date, time of acceptance, time of transfer and status of holder in due course unless the contrary is proved. The section lays down special rule of evidence applicable to negotiable instruments and presumptions are one of law and the court shall presume that the negotiable instrument which is the cheque in the present case, was made for consideration, was made on the date which it bears and that it was handed over to the complainant by the accused in due course.

25. Section 139 of Negotiable Instruments Act raises presumption that the holder of the cheque which is the complainant in the present case received the cheque for the discharge in whole or in part of any debt or other liability.

26. However, these presumptions U/s 118 and Section 139 NI Act are rebuttable in nature. These presumptions have to be compulsorily raised as soon as the execution of cheque by the accused is admitted or proved by the complainant and thereafter the burden is shifted to accused to prove otherwise. A presumption is not itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

27. In the present case in hand the accused has admitted before CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 12 of 20 the court that the cheques in question bear his signatures though he has disputed the version of the complainant that when the cheque was presented by the complainant the complainant had the authority to present the same on his behalf and that any legally enforceable debt or liability existed at that time. As the signatures are admitted by the accused the presumptions come into force. However, these presumptions are rebuttable in nature, but the onus to rebut the same is upon the accused.

28. Hon'ble Supreme Court of India in the case of Krishna Janardhan Bhatt Vs Dattatraya G. Hegde (2008) 2 Supreme Court Cases (Cri.) 166 has cautioned that the court must be on guard to see that merely on the application of presumption as contemplated U/s 139 of the NI Act, the same may not lead to injustice or mistaken conviction.

29. It was held by Hon'ble Apex Court in the said case that for proving the defence the accused is not required to step into the witness box and need not examine himself. He may discharge his burden on the basis of the material already brought on record as he a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 13 of 20 different. The prosecution must prove the guilt of accused beyond all reasonable doubts. However, the standard of proof, so as to prove a defence on the part of the accused is preponderance of probabilities whose inference can be drawn not only from the materials brought on record by the parties, but also by reference to the circumstances upon which he relies. It was held that where chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

30. It has been held by the Hon'ble Apex Court in Catena of judgments that the standard of proof in discharge of the burden in terms of section 139 of the Act being preponderance of probabilities the inference therefore, can be drawn not only from the material brought on record but also from the reference to the circumstances upon which the accused relies upon. Furthermore it is not essential for the accused to get himself examined as witness and he can discharge the burden of proof which has been shifted upon him due to the presumptions even by cross examination of the complainant's witnesses.

31. In the case of Kumar Exports VS Sharma Carpets 2009 II CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 14 of 20 AD (SC) 117 it was held by the Hon'ble Apex Court that to rebut the statutory presumptions the accused may either adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist on every case that the accused should disprove the non­existence of consideration and debt by leading direct evidence, because the existence of negative evidence at all times is neither possible nor contemplated. At the same time mere denial of passing of consideration and existence of debt also would not serve the purpose of accused, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. It was further held that once the rebuttal evidence is adduced and accepted by the court the evidential burden shifts back upon the complainant and thereafter, the presumptions U/s 118 and 139 of the Act will not again come to the complainant's rescue.

32. Thus it has been held by Hon'ble Apex Court that Section 139 of the Act is an example of reverse onus clause which has been included for improving the credibility of Negotiable CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 15 of 20 Instruments. However, as the offence U/s 138 is a regulatory offence only, therefore, test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to discharge an unduly high standard of proof.

33. In view of the above said decisions, it can be safely said that the onus upon the accused is only to show a probable defence which is not high as that of beyond reasonable doubt and only the accused has to prove his defence to the extent of preponderance of probabilities in order to shift back the onus upon the complainant to prove his case before the court.

34. In the present case, the accused has deposed that he had issued the cheque in the year 2009 to the complainant and when the cheque was not cleared he made the payment of the cheque in two installments of Rs. 8000/­ and Rs. 6000/­ to the complainant. The complainant, however, did not return the cheque. In his cross examination, it was stated by the accused that he had not issued the cheque after filling the date. The accused has denied the suggestion of the ld. Counsel for the complainant that he has re­validated the cheque after filling the date and had issued the same to the CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 16 of 20 complainant in the year 2011 in lieu of the part liability of his father. The complainant in his cross­examination has stated that he has asked the accused to sign again on the cheque in front of him and the cheque was handed over by the accused to him after the father of the accused has vacated the tenanted shop. It was stated in the voluntarily statement by the complainant that in the 2009 the accused has deposited the cheque in his account and has informed him and when he informed the accused regarding the fate of the cheque the accused took back the cheque from him and assured him to re­pay the amount.

35. Ld. Counsel for the complainant has also relied upon the judgment of Hon'ble Supreme Court of India in the case of Veera Exports Vs. T.Kalavathy, AIR 2002, Supreme Court 38, wherein it was held that it is always open to a drawer to voluntarily re­validate a cheque.

36. In the present case in hand, it is established before the court by way of deposition of DW­2 i.e. bank witness that the impugned cheque in question was presented in the year 2009 and was dishonoured with the reasons that the instrument was undated. It is the case of the complainant itself that the litigation was going on in CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 17 of 20 the court of law between the complainant & father of accused regarding the possession of the tenanted premises and regarding the recovery of arrears of rent. Keeping in view the draw back of litigations pending between the parties, it seems implausible that if the cheque of the accused was dishonoured in the year 2009 for the reasons that the instrument was undated, the complainant would have returned back the instrument to the accused. Moreover, the possibility is very dim that the very same negotiable instrument would be given by the accused to the complainant again in the year 2011 after filling the date of 25.07.2011 and the complainant would accept it. Perusal of the body of the cheque also reveals that the date appears to be written in a different hand writing. It is proved before the Court that impugned cheque was presented in the year 2009. It is deposed by the complainant in his cross examination that he had asked the accused to sign again on the impugned cheque in his presence. One of the basic ingredient of the offence U/s 138 NI Act is that the cheque should be presented in the bank within the period of 6 months from the date of issuance or within its validity. A cheque given in the year 2009 cannot remain valid till 2011 unless the same is revalidated. CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 18 of 20

37. It is deposed by the accused that he has given the cheque undated in 2009 and the same was presented but not cleared. It is further deposed that thereafter he repaid amount in cash. In order to rebut the onus as contemplated U/s 118 NI Act that the instrument was issued on the date which it bears, the accused has produced DW­2.

38. However, after the accused has rebutted the onus, the burden has shifted upon the complainant to prove that the cheque was revalidated by the accused/drawer or was revalidated by the consent of accused. However the complainant has failed to show before the Court that the cheque was revalidated.

39. Though, a negotiable instrument can be re­validated with the consent of the drawer or by the drawer, to bring it within its validity period, however, the complainant has failed to show before the court that the same was re­validated by the accused.

40. Thus, the accused has been able to rebut the presumptions as contemplated u/s 118 of Negotiable Instrument Act and therefore, the basic ingredient of Section 138 NI Act are not fulfilled i.e. the cheque was presented within 6 months or its validity. The complainant has failed to prove the guilt of the accused beyond the CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 19 of 20 shadow of all reasonable doubts and that the ingredients of Section 138 NI Act are fulfilled in the present case.

41. In view of the above said discussions and findings the accused is acquitted for the offence U/s 138 NI Act.

42. For the purpose of section 437 A Cr.P.C, the previous personal bond and surety bonds of the accused stands extended for the period of next six months.

43. Let file be consigned to record room. 




Announced in the open court 
today i.e. 11.03.2015                                           (NEHA PALIWAL)
                                                        MM­03:East: KKD:DELHI

It is certified that the judgment contains 20 pages and all pages bear my signatures.

(NEHA PALIWAL) MM­3:East: KKD:DELHI 11.3.2015 CC No.307/1/11 Ujjwal Gupta Vs. Jatin page No. 20 of 20