Delhi District Court
Hdfc Bank Ltd. vs . Ranjeet Singh Chauhan on 20 July, 2013
IN THE COURT OF SH. GOPAL SINGH CHAUHAN
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
HDFC Bank Ltd. Vs. Ranjeet Singh Chauhan
CC NO. : 3122/12
P.S. : Rajouri Garden
U/s : 138 Negotiable Instruments Act
J U D G M E N T
1 Date of the commission of offence : 18/10/2012 approx.
2 Name & address of the : HDFC Bank Ltd.
Complainant Having its Office at:
Ansal Classique Tower
9th Floor, J Block, Community Center
Rajouri Garden, New Delhi110 027.
3 Name of the accused
and address : Sh. Ranjeet Singh Chauhan
S/o Late Sh. Sukh Ram Chauhan
R/o H. No.3271, 1st Floor, Lane Dorwali
Ram Bazar, Mori Gate, near Gurdwara
Delhi110 006.
Chauhan Patti Store & Chauhan Packers
Shop 3408, Ramaya Chak, Ram Bazar,
Mori Gate, Delhi110 006.
4 Offence complained of : U/S 138 Negotiable Instruments Act
5 Plea of accused : Pleaded not guilty
Case No. :3122/12
6 Final order : Convicted
7 Date of such order : 20/07/13
Date of Institution of case : 07/11/2012
Date of decision of the case : 20/07/2013
JUDGMENT
1. By way of the present judgment, I shall decide the complaint case U/s 138 of Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant HDFC Bank Ltd., through its Authorised Representative, Sh. Somesh Sundriyal against the accused Ranjeet Singh Chauhan.
2. The brief facts of the case as per complaint in hand are that the accused approached the complainant for availing a business loan and after considering the request of the accused loan was disbursed to him. Accused undertook to repay the loan in agreed number of the EMIs which included interest part.
The case portrayed by the complainant is that for payment of dues accumulated on account of nonpayment of the monthly installments, the accused had issued one cheque bearing number 231877, dt.05/09/2012 amounting to Rs.26,763/, in favour of the complainant, drawn on HDFC Bank Ltd., Hamilton Road, Mori Gate, Kashmere Gate, Delhi6. However, on presentation of the same the cheque got dishonored vide cheque returning memo, dated 05/09/12, for reason "Account is Closed". The complainant Case No. :3122/12 thereafter sent a legal notice of demand dated 27/09/2012 to the accused which was sent by speed post, calling him to make the payment within 15 days of the receipt of the notice failing which an offence punishable U/S 138 Negotiable Instruments Act is deemed to have been committed. Even after receipt of legal demand notice, the accused has not made the payment within prescribed period, as demanded. As a result of which the complainant has filed the instant complaint for prosecution of the accused U/S 138 Negotiable Instruments Act.
3. After the complaint was filed, the Authorised Representative (AR) of the complainant led his presummoning evidence by way of an affidavit and reiterated the contents of the complaint on oath before this court. He got exhibited certain documents, Ex.CW1/1 is the power of attorney in favour of the AR. Ex.CW1/2 is the cheque dated 05/09/2012 amounting to Rs. 26,763/. Ex.CW1/3 is cheque returning memo. Legal Demand notice, postal receipts and proof of delivery, are Ex.CW1/4 to Ex.CW1/8.
4. After hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 29/11/2012 for the offence U/S 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/S 251 Cr.P.C. dated 09/05/2013 was given to the accused to which he pleaded not guilty and claimed trial.
Case No. :3122/12
5. Thereafter, vide order dt.09/05/2013, the accused was granted opportunity to cross examine the CWs on an oral submission made U/S 145 (2) of N. I. Act.
6. Sh. Somesh Sundriyal, A.R. of the complainant got himself examined as complainant witness in postsummoning evidence and reiterated the contents of the complaint on oath before this court and led his evidence by way of affidavit, Ex.CW1/1A. He got exhibited certain documents, Ex.CW1/1 is the power of attorney in favour of the AR. Ex.CW1/2 is the cheque dated 05/09/2012 amounting to Rs. 26,763/. Ex.CW1/3 is cheque returning memo. Legal Demand notice, postal receipts and proof of delivery, are Ex.CW1/4 to Ex.CW1/8. Witness was crossexamined by counsel for the accused.
7. Complainant evidence was followed by the statement of accused U/S 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents was put to him.
8. In statement U/S 313 Cr.P.C. recorded on 04/06/2013, all the incriminating evidence along with exhibited documents were put to the accused, Ranjeet Singh Chauhan in which he has admitted that he has taken a loan from the complainant. He claimed that he had issued the cheque in Case No. :3122/12 question as a blank signed cheque at the time of availing the loan. He has denied receipt of legal demand notice. He has stated that on behalf of complainant four signed blank cheques including the cheque in question, were taken from him at the time of disbursement of loan.
After recording statement of accused U/S 313 Cr. P.C., the case was listed for defence evidence.
9. In defence evidence, the accused got examined himself as DW1, being sole witness.
Defence witness was cross examined by the counsel for the complainant. Vide separate statement, DE was closed by the accused.
10. I have heard Ld. Counsels for both the parties. I have also perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
11. In the present matter, it is not in dispute that the accused had availed loan from the complainant bank. Also the accused has not disputed his signatures on the cheque.
Case No. :3122/12 It is claimed that the cheque in question was issued by accused in discharge of his liability towards the complainant. Under the provisions of Section 118 (a) and 139 of N.I. Act, presumption has been raised that the cheque was issued by accused in discharge of his liability towards the complainant and the same was made or drawn for consideration. The onus to rebut the presumption was lying on the accused. This presumption had to be rebutted either by leading positive evidence or by creating reasonable doubt in the case of complainant.
12. In the present matter, it is proved that cheque in question was presented for encashment within the prescribed period. Thereafter, after receiving returning memo from the bank, legal demand notice was served upon the accused within the prescribed period and after the accused has failed to pay the cheque amount the present complaint was filed within time.
13. In the present matter, although the receiving of legal demand notice was denied by the accused but it is sufficiently proved that the legal demand notice was served upon the accused as the postal receipts and tracking reports were exhibited on record as Ex.CW1/5 to Ex.CW1/8. Also during his cross examination, the accused/DW1 has admitted that both the addresses mentioned in the legal demand notice are his addresses. It is also clear from material available on record that accused has failed to make payment with Case No. :3122/12 regard to cheque in question within a period of 15 days from the service of legal demand notice.
14. During cross examination of CW1, it has come on record that the accused has took a loan of Rs.2,50,000/ from the complainant, which had to be repaid in 36 EMIs of Rs.8,921/ each. The witness has also deposed that on the date of cheque in question, the accused has defaulted in the payment of more than 20 EMIs. The witness denied the suggestion that the cheque was a security cheque which was taken at the time of disbursement of the loan.
In his examinationinchief, the accused / DW1 confirmed that the loan was to be repaid in 36 EMIs of Rs.8,921/ each. However, he has claimed that at the time of disbursement of the loan, the cheque in question was issued by him as blank signed cheque alongwith three other cheques as security. During his crossexamination, he has admitted that he has not paid the entire EMIs of the loan amount and has paid only 14 EMIs.
15. The only defence taken by accused is that the cheque was given in the form of security as a blank signed cheque.
Ld. Counsel for the accused has argued that no details with regard to liability of the accused in the form of statement of account or some other document, was ever filed on behalf of complainant and therefore, it can be taken that the complainant has failed to prove the liability of the accused. He Case No. :3122/12 has relied upon the judgment rendered by Hon'ble High Court in case titled, "M/s Pine Product Industries and Anr. Vs. M/s R. P. Gupta & Sons & Anr.", 2007 (1) JCC (N.I.) 28".
The judgment relied upon by the counsel for the accused is not applicable in the facts and circumstances of the present matter as in the facts of that judgment there were different transactions between the parties and the amount of some of them had to be adjusted in favour of the accused whereas in the present matter, there is only one transaction and it has been admitted by the accused that the amount of majority of EMIs has not been paid by him to the complainant.
16. As far as the defence of blank signed cheque is concerned, it has been categorically held by the Hon'ble High Court of Delhi, in case titled "Jaipal Singh Rana Vs. Swaraj Pal Singh & Anr.", 149 (2008) DLT 682, that in case a cheque is issued by accused after signing it when other coloumns are left unfilled and later on the same are filled up by any other person, then it does not amount to material alteration in the cheque. Also as per the provisions of Section 20 of N.I. Act then Inchoate Instrument is issued then it is taken that an authority has been given by the drawer to fill up it later on. In view of this, the defence of the accused is not found to be sustainable in the eyes of law. Case No. :3122/12
17. It is found that the accused has failed to rebut the presumption raised in favour of the complainant that the cheque in question was issued by the accused in discharge of his liability towards the complainant, by leading positive evidence or by creating any reasonable doubt in the case of the complainant.
18. As already discussed above, all other ingredients of offence U/S 138 of N.I. Act are found to be proved on behalf of complainant.
19. In view of above discussion, the evidence, the facts and circumstances of the case, this court is of the considered opinion that the complainant has been able to prove its case against the accused beyond reasonable doubt.
Accordingly, accused Ranjeet Singh Chauhan, S/o Late Sh. Sukh Ram Chauhan is hereby convicted of the offence U/S 138 Negotiable Instruments Act.
Let the accused be heard on the point of sentence. Copy of the judgment be given to the accused free of cost.
Announced in the open court
today i.e. 20/07/13 (GOPAL SINGH CHAUHAN)
MM : DWARKA
Case No. :3122/12
IN THE COURT OF SH. GOPAL SINGH CHAUHAN
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI HDFC Bank Ltd. Vs. Ranjeet Singh Chauhan CC NO. : 3122/12 P.S. : Rajouri Garden U/s : 138 Negotiable Instruments Act ORDER ON SENTENCE :
22.07.2013.
Vide separate judgment dated 20/07/13 the accused was convicted for the offence U/S 138 N.I. Act.
Ld. Proxy Counsel for the complainant while arguing on order on sentence stated that accused be given the maximum punishment i.e. Double the compensation amount and also substantive sentence provided under the Negotiable Instrument Act.
Ld. Counsel for the convict on the other hand argued that convict is a only earning member of the family who has to take care of his wife and two children. It is also submitted that the accused has suffered heavy losses in the business for which he took loan from the complainant and presently he is doing a private job. It is prayed that minimum sentence may be passed against the accused and a lenient view may be taken against him.
Heard. Record perused.
Case No. :3122/12 : 2 :
In the totality of the facts and circumstances of the case, the convict is sentenced to simple imprisonment for one month. Convict is also sentenced to pay an amount of Rs.29,000/ (Rupees Twenty Nine Thousand only), as compensation to the complainant as per the provisions of Section 357 (3) Cr. P.C. In default of the payment of compensation, convict shall undergo simple imprisonment for fifteen days in addition to substantive sentence of imprisonment, in compliance of the judgment of Hon'ble Supreme Court in case titled as Vijayan vs. Sadanandan K & Anr., IV (2009) SLT 141.
(GOPAL SINGH CHAUHAN) MM : DWARKA 22.07.2013 Case No. :3122/12