Delhi District Court
Neelam Gupta vs . Alok Jain on 2 February, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK:
METROPOLITAN MAGISTRATE (CENTRAL)-04 TIS HAZARI
COURTS, DELHI
C.C NO. : 361/SR/14
PS :Subzi Mandi
U/s : 138 N.I.Act
Neelam Gupta Vs. Alok Jain
1. Unique case ID No. : 02401R0002442008
2. Date of Institution of Case : 02.01.2008
3. Date on which case reserved : 29.01.2015
for judgment
4. Date of Judgment : 02.02.2015
5. Name of the complainant : Neelam Gupta
W/o Sh. Ram Kishore
R/o A-2/120-A, Lawrence
Road, Delhi-110035.
6. Name of the accused and : Alok Jain
his parentage and residence S/o Late Sh. Subhash Jain
R/o H.No. 2165, Second
Floor, Rani Bagh, Near Rani
Bagh Bus Stand,
Delhi-110034.
7. Offence complained of : U/s 138 of the Negotiable
Instrument Act, 1881
8. Plea of the accused : Pleaded not guilty
9. Final Order : Accused acquitted
JUDGMENT
C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 1 of 12 BRIEF FACTS OF THE CASE ARE :-
1. The accused in discharge of his liability towards the amount borrowed from the complainant had issued two cheques bearing cheque No. 901095 dated 08.10.2007 for Rs.25,000/- and cheque bearing cheque No. 901096 dated 08.09.2007 for Rs.25,000/-, both drawn at Andhra Bank, Lawrence Road, New Delhi-110035.
2. The said cheques were presented by the complainant to the banker of accused through her banker i.e Punjab National Bank, Tri Nagar, Delhi but both the cheques were dishonoured by the banker of the accused for the reasons "Stop Payment" vide cheque returning memo dated 11.10.2007 which were received by the complainant by her banker on 13.10.2007.
3. Complainant issued the legal demand notice 10.11.2007 to the accused through Courier on 12.11.2007 thereby conveying the information of dishonour of cheque to the accused but the accused not made the payment of dishonoured cheques to the complainant within the stipulated period of 15 days from the day of receiving the notice.
4. Complainant examined himself as CW1 and tendered C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 2 of 12 his evidence by way of affidavit and proved the affidavit as Ex.C1.
CW1 proved the cheque bearing No. 901096 dated 08.09.2007 for Rs.25,000/- as Ex.CW1/1, 901095 dated 08.10.2007 for Rs. 25,000/- as Ex.CW1/2, the cheque return memo dated 11.10.2007 qua cheque no. 901096 as Ex.CW1/3, the cheque return memo dated 11.10.2007 qua cheque no. 901095 as Ex.CW1/4. The legal demand notice dated 10.11.2007 as Ex.CW1/5, courier receipt dated 12.11.2007 as Ex.CW1/6 and Reply dated 22.11.2007 to the notice dated 10.11.2007 as Ex.CW1/7.
5. After perusal of pre summoning evidence by the complainant the summons were issued to the accused and on the appearance of the accused the notice was framed against him on 17.12.2008 to which accused not pleaded guilty and claim trial.
6. INGREDIENTS OF OFFENCE UNDER SECTION 138 NI ACT:
a) The accused has issued the cheque in question.
b) The cheque in question was issued for the discharge, in whole or in part, of any debt or other liability.
C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 3 of 12
c) The cheque in question was returned dishonored on presentation.
d) The accused failed to make the payment of the cheque amount within the statutory period after being served with the legal notice.
Whether the case of the complainant fits in the frame of the ingredients of section 138 NI Act.
Apparently, the accused has admitted to have issued the cheques in question though he alleged that the cheques were given for security purpose. It is also not in dispute that the cheques were returned dishonoured for insufficient funds. Therefore, the only facts that need to be analyzed are regarding the legal liability for which cheques were issued and the service of the demand notice. These two facts have also been challenged by the accused and the accused led his defence to bring forth his point.
LEGAL LIABILITY FOR ISSUANCE OF
CHEQUES:
So far as the fact of existence of legal liability for issuance of cheque is concerned, it is apposite to note the case law on this point. In the matter of "Rangappa v. Mohan" AIR 2010 SUPREME COURT 1898, it was held that the presumption C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 4 of 12 mandated by S. 139 of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 5 of 12 usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities' Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
Thus, the settled position of law is that the accused has to rebutt the presumption of law that the cheques were not issued to discharge the legally enforceable debt or legal liability. Initially, the court is duty bound to presume that the cheque in question had been issued for legally enforceable debt or legal liability unless the accused discharges his burden to dispel the presumption by preponderance of probabilities.
7. The complainant adopted his pre summoning evidence in his post summoning evidence and cross examined by the accused.
8. During cross examination of CW1, it is admitted that she is house wife and has not been in any job/business and she C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 6 of 12 also cannot say that whether the amount of Rs.50,000/- borrowed by the accused has been shown in income tax return or not. On confrontation of document Mark A, CW1 admitted that the LIC agent's name of accused is that of his husband. CW1 also admitted that she do not know that the cheque in question were blank and only signatures were there and she also cannot say that who filled up the cheque in question. CW1 further admitted that she do not know the accused directly but has acquaintance with the accused or his father but she knows them through her husband and the cheque in question might have been handed over by the accused or his father to the husband of CW1.
9. The complainant Evidence was thereafter closed on 06.10.2012.
10. The statement of accused U/s 313 Cr. P.C. was recorded on 30.11.2012 in which the accused wished to lead defence evidence and got examined himself as DW1.
11. Accused examined himself as DW1 and deposed that on 03.10.2007 his father suffered sudden death and after 2-3 days of death, he received call from the husband of the complainant who told DW1 regarding receiving of loan of Rs. C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 7 of 12 50,000/- by DW1 and further asked to return the same. DW1 approached to Andhra Bank and asked to stop the operation of his complete cheque book and got issue duplicate pass book and cheque book on 09.10.2007 regarding his account bearing No. 058701100005694 for which the husband of the complainant is the guarantor for the accused and same was opened on the behest of Sh. Ram Kishore Garg as he was LIC Agent and used to pay blank signed cheques from the father of DW1 for filling the LIC premium. DW1 further deposed that his blank signed cheque book was kept by his father so as to transact through cheques for bills like electricity, water and LIC etc. During cross examination DW1 has answered that he has only one LIC policy in his name since 2005 which was taken from Sh. Ram Kishore Gupta i.e. husband of the complainant. DW1 further stated that whenever he used to make the payment of LIC premium he got receipt for the said payment which now he is taking out the computer generated receipt via Internet.
12. D.E. was closed on 02.04.2013.
13. Final arguments advanced at length by both the sides.
14. It is observed by this court that the main C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 8 of 12 contention of the accused is that the cheques were not handed over by him to the complainant and the complainant has misused the cheques given by father of the accused for payment of premium of LIC policies in the name of the accused for which the complainant is the LIC agent and became introducer in the bank for opening the account of the accused. Another main contention of the accused is that the complainant has not complied with the provisions of N.I. Act, in words and spirit, and the cause of filing present complaint in favour of the complainant and in absence of same the accused is not under legal liability to pay even single penny to the complainant.
15. It is also observed that CW1 has herself admitted that she do not know whether the cheques were filled or blank and who has filled the entries in the cheque. CW1 also admitted that her husband was LIC agent and as per Mark A the LIC agent's name of the accused is that of her husband. CW1 further admitted that the impugned cheque might have been handed over by the accused or his father to the husband of the complainant/CW1.
16. It is also observed that it is admitted fact on the part of the complainant that as per courier receipt Ex.CW1/6 the notice C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 9 of 12 dated 10.11.2007 was dispatched on 12.11.2007. It is also admitted fact that the cheque return memo Ex.CW1/3 and Ex.CW1/4 both dated 11.10.2007 were received by the complainant on 13.10.2007. Now, sequence of event is very much clear that the cheque return memo dated 11.10.2007 were received by the complainant on 13.10.2007 and notice was dispatched on 12.11.2007. If, the date of receiving of cheque return memo, i.e. 13.10.2007, is excluded for the time period available to the complainant for issuing the notice within 30 days from the date of dishonour of cheque, the date of issuing of legal notice i.e. 12.11.2007 is the 31st day after admitted date of receiving the cheque return memo by the complainant from her banker.
17. Ld. Counsel for the complainant put his reliance on the judgment titled as "Saketh India Ltd. & Ors. Vs. India Securities Ltd.", Crl. No. 288-89 of 1999 decided on 10.03.1999, (1999) 3 Supreme Court Cases 1 where the computation of period of filing the complaint, after expiry of stipulated 15 days for payment of cheque amount from the date of receiving of notice is elaborated.
18. Ld. Counsel for the accused put his reliance on the case titled as "Shiva Kumar Vs. Natrajan", Crl. No. 1077 of 2009, C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 10 of 12 2009 [3] JCC [NI] 175 passed by Hon'ble Supreme Court of India on 15.05.2009 thereby elaborating the computation of period for issue of notice from the date of receipt of intimation from the bank and also discussing Section 9 of General Clauses Act 1897, wherein Hon'ble Supreme Court of India has elaborately computed the period of issuance of notice U/s 138 N.I. Act by the complainant after excluding the date of receiving of intimation from the banker of complainant and has laid the ratio for dismissal of complaint if the notice was dispatched on 31st day of receiving the intimation by the complainant from the banker of complainant.
19. The span of time period for issuance of notice U/s 138 N.I. Act in the present case is on the same footing as in the judgment titled as "Shiva Kumar Vs. Natrajan" 2009 [3] JCC [NI] 75, hence, the complainant has issued the notice to accused on 12.11.2007 which is 31st day of receiving the intimation by the complainant from her banker. It is observed that as per legislative intent the burden is on the accused to rebutt the legal presumption in favour of complainant and in view of above judgment the accused has successfully discharged his burden for rebutting the legal presumption in favour of the complainant that C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 11 of 12 the legal notice issued to the accused was after expiry of stipulated time. In view of above ratio, the complaint of complainant is hereby dismissed. Accused - Alok Jain is acquitted from the offence U/s 138 N.I. Act Announced in the open Court on this 2nd Day of February, 2015 (AJAY KUMAR MALIK) MM(Central)-04/THC 02.02.2015.
C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 12 of 12 FIR No. 361/SR/14 PS: Subzi Mandi 02.02.2015 Present : Ld. Counsel for the complainant along with complainant.
Accused in person along with Ld. Counsel. Vide separate judgment of even date, accused - Alok Jain is acquitted from the present case. Bail bond already furnished by the accused is extended U/s 437A Cr. P.C. till limitation period for filing appeal by the complainant.
Original documents, if any, be released to its original owner against counter singed photocopy of the same.
File be consigned to Record Room after due completion.
(AJAY KUMAR MALIK) MM (Central)-04/THC/DELHI 02.02.2015 C.C. No. 361/SR/14 Neelam Gupta Vs. Alok Jain Page No. 13 of 12