Delhi District Court
Anil Kumar vs Manish Kumar on 3 November, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII
CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS : DELHI.
ANIL KUMAR VS MANISH KUMAR
CC/RBT No.: 556/14
U.I.D. No. : 02402R0028202009
U/s. : 138 N.I. Act
P.S. : GOKAL PURI
J U D G M E N T
1 Sl. No. of the case : 556/14
2 Date of institution of the case : 29/01/2009
3 Name of the complainant : Anil Kumar s/o Lt. Sh. Charan
4. Name of accused, parentage & : Manish Kumar r/o B58/7 Address Khajoori Khas, Delhi.
5 Offence complained of or proved : U/Sec. 138 N.I Act. 6 Plea of the accused : Pleaded not guilty 7 Date reserved for order : 01/10/14 8 Final order : Convicted 9 Date of Judgment : 01/10/14 Facts as borne out from the complaint are as follows :
1. By filing present case complainant contended that he is supplier of cosmetics products and accused is running a shop of cosmetics products at B58/7, Khajoori Khas, Delhi and in the course of business with the accused, accused had issued two post dated cheques bearing No. 545655 amounting to Rs.20,000/ dt. 10.11.2008 and cheque bearing No. 545656 amounting to Rs.15,517/ dt. 22.11.2008, drawn on Barclays Bank, Nehru Place, Delhi against the supply of goods with the assurance that the same would be encashed on their presentation.
CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 1 2
2. It is further alleged that as per assurance, the complainant presented the cheque bearing No. 545655 amounting to Rs.20,000/ dt. 10.11.2008 with his banker i.e OBC, Ambedkar College, Yamuna Vihar, Delhi but same received dishonoured with the remarks "Insufficient funds" vide returning memo dt. 12.11.2008.
3. Complainant made several calls and visited the accused and accused again assured the complainant to present the said cheque again along with cheque bearing No. 545656 dt. 22.11.2008.
4. Complainant again presented both the cheques in question with its banker, same were returned back uncashed with remarks "FUNDS INSUFFICIENT" vide returning memos dt.11/12/2008 annexure C and D.
5. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 24.12.2008 to accused through regd. AD post. Notice is marked as annexure "E" and AD card is marked as annexure F and the UPC is annexure G. But accused failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter, complainant has filed this complainant U/s 138 of the Negotiable Instrument Act, 1881 (hereinafter "the Act") against the accused.
6. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C was led by the complainant. After considering the material and the presummoning evidence on record, the accused was CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 2 3 ordered to be summoned vide order dated 28.05.2010 to face trial for the offence under section 138 Negotiable Instruments Act, 1881.
7. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C. for the offence under section 138, Negotiable Instruments Act, 1881 was served upon him on 16.10.2012 to which he pleaded not guilty and claimed trial.
8. After service of notice upon the accused under section 251 Cr.P.C.; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got himself examined as the sole witness. The complainant's evidence was closed on 01.02.2013.
9. After conclusion of complainant's evidence, statement of accused was recorded on 31.08.2013 under Section 313 Cr.P.C. wherein the accused stated that he had a agency of Shilpa Bindi and complainant was having some old stock. Complainant took two post dated cheque from him on the pretext that he would transfer the said old stock to him, however, stock has not been handed over to him and due to this reason he did not deposit the amount in the bank. Accused has not examined any witness in his defence.
10.I have heard the rival submissions at Bar and have gone through the records of this case.
11.To constitute an offence under Section 138 N. I. Act it has to be proved that: CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 3 4
a) there was a legally enforcible debt.
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to insufficiency of funds.
d) that the demand notice was duly served on the accused and despite that he failed to make payment.
12.The Negotiable Instruments Act, 1881 raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118
(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions, both under Sections 118(a) and 139 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
13.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof beyond reasonable doubt.
CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 4 5 However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647. It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana Menon Vs. State of Kerala AIR 2006 SC 3366 can be fruitfully referred to.
14.Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge of a debt or liability is a mandate of law, though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
APPRICIATION OF FACTS,EVIDENCE AND ARGUMENTS
15.Prior to proceed further it is not out of mention here that present case has been contested on the ground that both the cheque are in question given for the purpose of security for supplying of the goods CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 5 6 to the accused while admitting the issuance of cheque to the complainant when notice in writing given to the accused during notice u/sec. 251 Cr.P.C and little bit different stand, has been taken while answering and explaining in his statement u/sec. 313 Cr.P.C that cheque in questions are taken by the complainant as post dated cheque on the pretext that he would transfer the old stock of Shilpa Bindi to the accused but stock has not been handed over to the accused. Other stand taken by the accused is that he has not received any legal notice but here it is not out of mention to place that accused summoned first time for 21/9/2010 which was sent to the accused on the similar address as mentioned in the memo of parties as to the legal notice Ex.CW1/E with the report of service. But it is another thing accused appeared on 11/7/11 on execution of Bailable warrants on the same address.
16.Further here it is also important to note that during statement u/sec. 313 Cr.P.C it has explained and admitted by the accused that cheque in question returned back dishonoured with the endorsement "Insufficient Funds", as per returning memo Ex.CW1/C and Ex.CW1/D because of non supplying of all stock and as such he has not deposited the amount in his account, means admitted the knowledge of dishonour of cheque vide returning memo dt. 11/12/2008 but surprisingly no evidence has been led by the accused even he failed to tender by examining himself u/sec. 315 Cr.P.C hence the explanation given u/sec. 313 Cr.P.C cannot be considered evidence in present case to the presumption that cheques are in question had been given towards the discharge of legal liability. Reliance can be placed on judgment reported as " V.S. YADAV VS CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 6 7 REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs. 138,139 and Cr.P.C., 1973251281 Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean mis reasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for sake of fundThis order is made for consideration and that is why Sec.139 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881 Sec.138/139Dishonour of cheque Presumption under sec. 139Rebuttal of Mere pleading not guilty and stating that the cheques were issued as CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 7 8 security, would not give amount to rebutting the presumption raised under sec. 139 N.I Act In order to rebut the presumption under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this case Judgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 313 Cr.P.C is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under sec.
281 Cr.P.C or 313 Cr.P.C cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 8 9 appear in the witness box and testify and get himself subjected to crossexamination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under sec. 281 Cr.P.C that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence."
CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 9 10 It was further held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya G. Hedge, 2008(1) JCC (NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec. 138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec. 139 of N.I Act. If mere statement under sec. 313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under sec. 139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which cheques CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 10 11 were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/sec.
139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.
17.On the other hand complainant examined himself by way of affidavit which is Ex.CW1/1 and reproduced all the contents of the complaint and exhibit cheques are in question as Ex.CW1/A and Ex.CW1/B, returning memo Ex.CW1/C, Ex.CW1/D and legal notice Ex.CW1/E and remained firmed on the point that he has sent the goods to the accused Manish on 17/8/08 through invoice Ex.CW1/X1 and further deposed that there was a boy who received goods thereafter I had talked with Manish about receiving of the goods. " It is wrong to suggest that complainant had not given the goods to the accused. It is wrong to suggest that accused had issued an advance cheque and goods were not supplied. It is further wrong to suggest that no one received the goods on behalf of accused but surprisingly no cross examination has been done on the point of service of legal notice Ex.CW1/E . Since accused has not disputed the address as mentioned in the regd. AD, UPC. Further it is not the case of the accused that CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 11 12 report of postal receipts is fabricated one. Accused has not brought anything on record to show that postman has never visited the business address of the accused for the service of notice Ex.CW1/E to the accused. Therefore, no interest of faul play can be presumed on behalf of postal authority. Thus, under these circumstances, service of legal notice can safely be presumed.
18.In this regard reliance can be placed on the judgment of Hon'ble Apex Court in V.RAJA KUMARI VS SUBBARMANA NAIDU cited as 2004 X AD (SC) 433" wherein it was held that :
"......The Principle incorporated in S. 27 of General Clause Act can profitably be imported in a case where the send has dispatched the notice by post with correct address written on it. Then it can be 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. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice....."
DECISION AND REASONING
19. After taking into consideration all the facts and circumstances of the case I am of the view that in the present case all the four ingredients have been proved by the complainant beyond reasonable doubt as such I am of the considered opinion that accused has failed to rebut the presumption and essential ingredients of the offence stands proved.
CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 12 13
20.For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused stand proved beyond reasonable doubt. Accused is accordingly convicted under Section 138 N. I. Act. Accused be heard separately on the point of sentence on 16/10/2014.
ANNOUNCED IN OPEN COURT Dated : 01/10/2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 13 14 IN THE COURT OF RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS, DELHI.
ANIL KUMAR VS MANISH KUMAR
CC/RBT No.: 556/14
U.I.D. No. : 02402R0028202009
U/s. : 138 N.I. Act
P.S. : GOKAL PURI
03/11/2014 :
ORDER ON THE QUANTUM OF SENTENCE :
Present : Complainant in person with counsel.
Convict with counsel.
1. Vide separate judgment passed and announced in the open court on 01/10/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. It is argued by Ld counsel that convict is aged 48 years old and has no previous involvement or antecedents. It is stated that convict has to look after his family consisting of wife, two children who are under graduation and old age father and that he is doing the private job and is earning Rs.15,000/ p.m. CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 14 15
3. Further it is submitted by the Ld. counsel for convict that convict is ready to make the payment of cheque amount and litigation charges of Rs.10,000/.
An application on behalf of accused filed u/sec. 360 Cr.P.C r/w
4.
section 3&4 of Probation Offenders Act and affidavit in this regard filed by the accused that he is not a previous convict.
5. It is further submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as he is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last five years and on account of conduct of convict, he may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
6. Complainant submitted that he accepted the cheque amount of Rs.35,000/ and Rs.10,000/ as litigation charges and has not opposed the submission qua the grant of probation to the convict.
CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 15 16
7. I have heard the submissions of Ld. counsel for convict and have perused the record. Liability in this case has already been proved during the trial and the payment is pending in this case since five years.
8. Since the convict has also filed an affidavit in respect to the fact that he is not a previous convict,having considered the above said facts and circumstances of the case and the fact that convict has no previous criminal background, hence it is expedient to release him on probation of good conduct and behaviour. Further no purpose shall be served to award the sentence either to fine or imprisonment, keeping inview the facts and circumstances of the case and age of the accused who is 48 years old and is only bread earner in his family and also specially the fact no objection taken by Ld. counsel for complainant and ready to receive the compensation up to the cheque amount of Rs.35,000/ and litigation charges up to Rs.10,000/. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.20,000/ with one surety in the like amount for the period of one year. Further Rs.35,000/(Rupees Thirty five Thousand) as compensation/cheque amount and Rs.10,000/ as litigation charges is awarded in favour of the complainant which has been paid to the CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 16 17 complainant today itself.
9. Convict is directed to appear before Probation Officer at least once in every three months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period.
Probation bond furnished, and accepted.
10.Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT Dated : 3rd November 2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 17 18 CC No.556/14, P.S GOKAL PURI ANIL KUMAR VS MANISH KUMAR 18