Delhi District Court
Supreme Court In Case Titled As Vijayan vs . Sadanandan K & Anr., Iv on 12 January, 2012
IN THE COURT OF MS. NITI PHUTELA
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
G.E. CAPITAL TFS LTD. v. GURJEET SINGH
CC NO. : 21414/09
P.S. : Parliament Street
U/s : 138 Negotiable Instruments Act
ORDER ON SENTENCE:
16/01/12
Present : Counsel for the complainant
Convict in person along with Sh. Pramod Sinha, Adv.
Vide separate judgment dated 12/01/12 the accused was
convicted for the offence U/s 138 N.I. Act.
Ld. 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 presently running into a financial crunch because his one
vehicle was repossessed by the complainant and another vehicle is not in
a fit position to run on road. It is also submitted by the counsel for the
accused that accused is supporting his whole family and also his old
mother, both of his children are in Government school where school fees
is very nominal still the convict is facing difficulty to pay their school
Case No. : 21414/09 Page No. 1 of 19
fees. It is submitted by the counsel for the convict that complainant has
also admitted that vehicle of the accused has been repossessed and has
been sold out for approx. Rs. 5,50,000/. It is also argued that accused
has already repaid Rs. 9,00,000/ to the complainant therefore against
the total amount of Rs. 11,80,000/ accused has already repaid approx.
Rs. 14,50,000/ to the complainant. Hence he submits that a lenient view
be taken against the accused.
Parties heard. Record perused.
In the totality of the facts and circumstances of the case this
court of the considered view that as the offence U/s 138 N.I. Act is only a
technical offence which only includes economic aspects therefore convict
is sentenced to TRC and also considering the fact that vehicle of the
accused has been repossessed accused is further directed to pay fine of
Rs. 3000/ as compensation.
In default of the compensation convict shall undergo simple
imprisonment for three months, in compliance of the judgment of Hon'ble
Supreme Court in case titled as Vijayan vs. Sadanandan K & Anr., IV
(2009) SLT 141.
Thirty days time is granted to the convict to pay the
compensation amount.
At this stage application U/s 389(3) CrPC is moved on behalf
of the accused for suspension of sentence.
Case No. : 21414/09 Page No. 2 of 19
Application Heard.
The same is allowed subject to furnishing of PB/SB in the
sum of Rs. 10,000/. TRC not served.
PB/SB in the sum of Rs. 10,000/ furnished and accepted.
Put up on 14/02/12 for payment of compensation and FP.
(Niti Phutela)
MM/Dwarka
16/01/12
Case No. : 21414/09 Page No. 3 of 19
N THE COURT OF MS. NITI PHUTELA
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
G.E. CAPITAL TFS LTD. v. GURJEET SINGH
CC NO. : 21414/09
P.S. : Parliament Street
U/s : 138 Negotiable Instruments Act
J U D G M E N T
1 Date of the commission of offence : 27/07/09 approx.
2 Name & address of the : G.E. Capital Transportation
Complainant Services Ltd. through A.R.
Sh. Atul Bansal
at AIFACS Building 1, Rafi Marg,
New Delhi
3 Name of the accused
and address : Sh. Gurjeet Singh
S/o Sh. Gyan Chand
R/o A34/3, Gali No - 3,
Khajuri Khas
New Delhi - 110 093
4 Offence complained of : u/s 138 Negotiable Instruments Act
5 Plea of accused : Pleaded not guilty
6 Final order : Convicted
Date of Institution of case : 24/08/09
Date of decision of the case : 12/01/12
Case No. : 21414/09 Page No. 4 of 19
BREIF SKETCH OF THE CASE
1. Vide the present judgment I shall dispose off complaint case U/s 138 Negotiable Instrument Act filed by the complainant i.e. G.E. Capital Transportation Financial Services Ltd., through its authorised representative Sh. Atul Bansal against the accused Gurjeet Singh.
2. The brief sketch of the case is that the accused availed two loan facilities from the complainant vide loan account Nos. TNGURRCVZ00307422 & TNGURRCVZ00306945 in the sum of Rs. 80,000 & 11,00,000/ . The said loan was to be repaid in 35 and 53 installments. Accused had to pay Rs. 30,765/ each month pertaining to both the loans.
3. The case portrayed by the complainant i.e. G.E. Capital TFS Ltd. is that the accused in partial discharge of its liability has issued two cheques bearing No. 386596 & 386597 dated 01/01/09 & 01/02/09 respectively amounting to Rs. 30,765/ each and both drawn on ICICI Bank Ltd. Model Town Branch, Delhi. On presentation of the said cheque(s) the same got dishonoured for the reason 'insufficient funds in account'. Thereafter, legal demand notice was sent to the accused calling him Case No. : 21414/09 Page No. 5 of 19 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. As per the complainant, no payment was received by the complainant from the accused in relation to the said cheque, as a result of which the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instruments Act.
4. After the complaint was filed the Authorized Representative (AR) of the complainant led the presummoning evidence by way of an affidavit and thereafter hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 12/05/10 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 CrPC dated 01/12/10 was given to the accused to which he pleaded not guilty and claimed trial. The accused moved an application U/s 145(2) Negotiable Instruments Act for disclosing his defence in compliance of the judgment passed by Hon'ble Delhi High Court on 28/07/10 in case titled as Rajesh Agarwal v. State, the same was considered and allowed on 17/01/11.
Case No. : 21414/09 Page No. 6 of 19 COMPLAINANT EVIDENCE
5. On 10/05/11, Sh. Sh. Atul Bansal, AR of the complainant got himself examined as CW1 in which he tendered his affidavit in evidence which was exhibited as Ex. CW1/1. The power of attorney in favour of A.R. was exhibited as Ex. CW1/A. He got exhibited the original cheque(s) before the court as Ex. CW1/B & Ex. CW1/B1 and the original cheque returning memos, both dated 11/06/09 were exhibited as Ex. CW1/C & Ex. CW1/C1, the legal notice of demand dated 10/07/09 was exhibited as Ex. CW1/D, receipt of speed post was exhibited as Ex. CW1/E. The complaint was exhibited as Ex. CW1/F. The A.R. was crossexamined in which he admitted that in his affidavit Ex. CW1/1, there is mention of three cheques and three returning memos and not two cheques and returning memos as in the present case and this is merely a typographical error. He further stated that two loans were granted to the accused one for chassis and another for body of the vehicle. He also deposed that the vehicle of the accused was repossessed as per the terms of the agreement according to which if there are three defaults then vehicle can be repossessed and this was done approximately in March 2010 because the vehicle of the accused was hypothicated Case No. : 21414/09 Page No. 7 of 19 to the complainant. The witness further stated that though there were no specific orders of any authorised person for the repossession but general policies of informing the local police was followed. The witness admitted that vehicle of the accused has already been sold in June 2010 and the notice for the same was given to the accused before the sale of the same. The witness also admitted that one more case was filed by the complainant pertaining to the same loan transaction but the same was withdrawn by the complainant. The witness was crossexamined and discharged.
COURT PROCEEDINGS
6. After the A.R for the complainant was examined as CW1 application was moved on behalf of the complainant U/s 311 CrPC for placing on record loan application forms of the accused. After the arguments, the same was considered and allowed. The loan application forms of the accused were exhibited as Ex. CW1/G & Ex. CW1/G1 (OSR). The complainant evidence was closed by the complainant vide separate statement on 22/09/11. STATEMENT OF THE ACCUSED U/s 281 CR.PC R/W SECTION 313 Cr.PC
7. Complainant evidence was followed by the statement of Case No. : 21414/09 Page No. 8 of 19 accused u/s 313 Cr.P.C. on 30/09/11 in which all the incriminating evidence along with exhibited documents were put to accused Gurjeet Singh, in which he admitted that he had taken two loans from the complainant and against both the loans he was making the payment of Rs. 30,765/ per month and he had approximately paid Rs. 9,00,000/ to the complainant. He further disclosed that his vehicle was repossessed in March 2010 and the same was sold without his consent and therefore he had lodged a complaint in police station. The accused stated that only two installments were outstanding against him when his vehicle was repossessed and there was no such agreement that his vehicle can be repossessed after three defaults. As to the cheques in question he stated that the same were issued by him in blank along with other 10 blank signed cheques when the loan was granted to him. He admitted that there was no balance in his account and he use to make the payment of installment by way of cash. He denied receiving of legal demand notice from the complainant. He showed his willingness to pay the balance amount if proper accounts were shown to him. He stated that after the sale of the vehicle there is no liability against him. The accused wanted to lead defence evidence. Case No. : 21414/09 Page No. 9 of 19 DEFENCE EVIDENCE
8. Matter was fixed up for defence evidence for 09/11/11. The accused moved an application U/s 315 CrPC for examining himself as defence witness and entered the witness box for deposing. In his examination in chief he reiterated the same version as in his statement U/s 313 CrPC and also admitted that he executed the loan agreement with the complainant. The witness also deposed that when his vehicle was sold out its approximate resale value was Rs. 8,00,000/ and he had already repaid to the complainant Rs. 9,00,000/ approx., and the amount of Rs. 2,50,000/ is outstanding against him which he is ready to pay if his vehicle is returned back to him.
He was crossexamined by the counsel for the complainant. Vide separate statement defence evidence was closed. ARGUMENTS
9. Final arguments were addressed on behalf of both the parties on 16/12/11.
APPRECIATION OF FACTS, EVIDENCE AND ARGUMENTS
10. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Case No. : 21414/09 Page No. 10 of 19 Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in 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 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.
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.
a) Whether the cheque was issued or not by the
drawer/accused :
As to the fact that the cheque in question was issued by the accused to the complainant or not, it is relevant here to mention that the accused himself admitted while answering to the question in notice U/s 251 CrPC, that he issued the cheques in question but Case No. : 21414/09 Page No. 11 of 19 the same were signed by him in blank and was given by him at the time of granting loan to him. Same was the version of the accused in his statement U/s 313 CrPC. The accused while deposing as DW1 admitted that he issued the cheques for the repayment of installments though the same were blank signed cheques. Therefore, so far as the issuance of cheque is concerned, the admission of the accused regarding the signing of and delivery of the same is sufficient and is not disputed. It is relevant here to mention the judgment of Hon'ble Delhi High Court in case titled as Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 wherein it was held that "by putting the amount and the name there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date".
"there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only."
b) The cheque was presented within the period of its validity :
Perusal of the cheques Ex. CW1/B & Ex. CW1/B1 shows that they are of 01/01/09 & 01/02/09 and as per the cheque returning memos which are Ex. CW1/C & Ex. CW1/C1 the above Case No. : 21414/09 Page No. 12 of 19 said cheques were presented within the period of limitation because the return date on the cheque returning memos is of 11/06/09 which is very much within the period of limitation i.e. within six months from the date of issuance of the cheque. Therefore so far as this ingredient is concerned the same stands fulfilled against the accused.
c) Dishonour of the cheque in question :
The complainant has filed on record the cheque returning memos Ex. CW1/C & Ex. CW1/C1 which shows that the cheque of the accused has bounced for the reasons "insufficient funds in account". This fact has also been admitted by the accused in his statement U/s 313 CrPC. Therefore it is proved that cheque Ex. CW1/B & Ex. CW1/B1 got bounced.
d) Service of legal demand notice upon the accused :
The accused while answering the question in his notice U/s 251 CrPC and even in his statement U/s 313 CrPC, stated that he had not received any legal demand notice from the complainant, however he admitted receiving of the summons of the court. While deposing as DW1 the accused firstly admitted that the address which is mentioned by him while deposing as DW1 in court and Case No. : 21414/09 Page No. 13 of 19 also the address mentioned in the complaint is his correct address.
But later on he again reverted from his version and stated that the address which he mentioned while deposing as witness, is his correct address and he denied that the address in legal demand notice Ex. CW1/D is his correct address.
On this point it was argued by the counsel for the accused that the address mentioned in the legal demand notice Ex. CW1/D and the complaint is not the correct address of the accused and therefore the presumption U/s 27 of General Clauses Act and also one of the essential conditions of Section 138 Negotiable Instruments Act i.e. service of legal demand notice on the correct address is not fulfilled.
On the other hand it is argued by the counsel for the complainant that this is the correct address furnished by the accused in his loan application forms which are already on record and the same are Ex. CW1/G & Ex. CW1/G1 and therefore the requirements of Section 27 General Clauses Act and Section 138 of Negotiable Instruments Act stands complete.
Hearing the arguments of both the parties and after going through the record this court is of the considered view that accused has himself admitted that he received the summons of the court and thereafter he appeared here in this court and in the normal Case No. : 21414/09 Page No. 14 of 19 course of working of the court the summons and other processes are always sent at the address which is mentioned in the complaint. Therefore, if the accused has received the summons at this address (which he is denying to be the correct address) a presumption can be raised that legal demand notice was also received by the accused at the same address. The accused has himself shaken the credibility of his testimony by taking contradictory stand pertaining to this point as mentioned above. It is also pertinent to mention here that accused has not disputed his signatures on document Ex. CW1/G & Ex. CW1/G1 which also shows the address of the accused as mentioned in complaint and legal demand notice. In view thereof merely by taking this stand and not filing on record any document to show that the address mentioned on the legal demand notice is wrong the accused cannot save his skin. Therefore, the accused cannot be said to have rebutted the presumptions against him U/s 118 of Negotiable Instruments Act.
Pertaining to the notice the another argument put forward by the counsel for the accused is that the notice was not sent within the statutory period as provided in Section 138 Negotiable Instruments Act and therefore, the essential ingredient of the above said provision of law is not made out. In support of his argument Case No. : 21414/09 Page No. 15 of 19 he has relied on the judgment of Hon'ble Supreme Court in Sivakumar v. Natarajan DCR 2009(2) 262 in which it was held that the notice which was sent on 31st day from the date of receiving the knowledge regarding the dishonouring of the cheque was not to be considered as 'within 30 days' which is the statutory requirement of Section 138 Negotiable Instruments Act and there is clear departure in this regard from the general provisions of Section 9 of General Clauses Act which are applicable where the words 'from' and 'to' are mentioned. Therefore the service of that notice was not considered as a valid service and the accused was acquitted on this ground.
On the other hand on this point it was argued by the counsel for the accused that cheque returning memos Ex. CW1/C & Ex. CW1/C1 are dated 11/06/09 and information regarding the dishonouring of the cheque is presumed to be received by the complainant on 12/06/09 and from the date only period will start running therefore sending of the notice on 11/07/09 is 'within 30 days' from the date of receiving the knowledge regarding the dishonouring of cheques.
Considering the arguments of both the parties and perusing the record it is evident that the cheque returning memos are dated 11/06/09 and legal demand notice was sent on 11/07/09. In the Case No. : 21414/09 Page No. 16 of 19 light of the provisions of Section 138(b) of Negotiable Instruments Act where the words 'within 30 days of the receipt of information' are mentioned. Perusal of the complaint and affidavit of the A.R. shows that there are no specific averments that when the complainant has received the information regarding the dishonouring of the cheques, thus going by the rule of prudence it will be presumed that information was received by the complainant only on the next date i.e. 12/06/09. Considering this, 11/07/09 i.e. the date of sending of legal demand notice squarely come within the period prescribed by Section 138 of Negotiable Instruments Act.
e) Whether the cheque in question was issued for discharge of legal debt or other liability:
The case of the complainant is that the accused issued the cheques in question for the partial discharge of his liability. On the other hand it is alleged by the accused that the cheques in question were issued by him in blank only after signing the same at the time of grant of loan to him and once his vehicle has been repossessed there is no liability against him and rather the complainant owes towards him.
The basic principle of law of evidence as per Section 106 of Indian Evidence Act, is that if one party is alleging a particular fact which is in its knowledge only, the burden to prove that fact is on Case No. : 21414/09 Page No. 17 of 19 that party. Therefore if the accused is alleging that he had not filled the particulars in the cheques in question and the same were issued without any consideration then the burden was on the accused to prove this particular fact. The law of Section 139 of Negotiable Instruments Act being clear departure from general law of burden of proof where initial burden is on the complainant and presumption of innocence remained with the accused throughout the trial. In the case of Section 139 Negotiable Instruments Act the presumptions of valid consideration is in favour of the complainant and is against the accused. Therefore, it was on the accused to rebut all the above said presumptions which have not been done by the accused in the present case and merely by stating that he has no liability towards the complainant will not serve his purpose.
The accused has throughout the trial and also while deposing as DW1 has not disputed granting of loan to him. The mere defence taken by him is that his vehicle has been repossessed and has been sold out therefore he is having no liability towards the complainant. The accused in his statement U/s 313 CrPC has admitted that his vehicle was sold out in March 2010, this fact is also stated by the A.R. while deposing as CW1. Therefore there is no doubt that the vehicle of the accused was repossessed in March 2010. The cheques in question Ex. CW1/B & Ex. CW1/B1 are Case No. : 21414/09 Page No. 18 of 19 that of January & February 2009 i.e. much prior to the date when the vehicle of the accused was repossessed. The accused in this context has relied on judgment of Hon'ble Kerala High Court in Sudha Beevi vs State Of Kerala 2004 Cr.LJ 3418, that in the lines of this judgment if once the vehicle is repossessed there is no liability against the borrower.
This judgment of Hon'ble Kerala High Court is not applicable to the case in hand because that judgment pertains to cheque which was presented after the repossession of the vehicle when already the subsisting contract stood abrogated because of the act of the party and in the present case the cheques have already been presented much before the vehicle of the accused was repossessed i.e. in March 2010. It is also important to mention here that repossession and selling of the vehicle after two defaults (which is the version of accused) or after three defaults (which is the version of the complainant) will not make any difference in the case in hand because the cheques have already been presented much before the vehicle was repossessed.
The accused while being crossexamined as DW1 stated that he made the payment of installments pertaining to January, February, April and May 2009 by way of cash and the receipt pertaining to the payments made were not filed by him because the Case No. : 21414/09 Page No. 19 of 19 same were in the vehicle itself when the same was repossessed. The accused also deposed that he made the payment of Rs. 90,000/ in September 2009 and also of Rs. 31,000/ in February 2010/ (pertaining to the cheque against which complaint case was filed against him). But he stated that he cannot produce the receipts of the same because the same were lying in the vehicle when the same was repossessed. The accused even throughout the trial has taken a stand that it is the complainant who owes him and not vice versa because the complainant has sold out his vehicle and has even filed cases against him to harass him.
Perusal of the testimony of DW1 shows that a suggestion was put to the accused by the counsel for the complainant that value of the vehicle, when it was sold was only Rs. 5,50,000/ and not Rs. 8,00,000/ as alleged by the accused to which he denied as being correct. This therefore, points towards the fact that the vehicle of the accused was sold out for Rs. 5,50,000/ but in the considered view of the court resale amount being Rs. 5,50,000/ or Rs. 8,00,000/ will also not make any difference on the liability of the accused for the cheques in question because the same pertains to an earlier period (January & February 2009) then the date of re selling i.e. in June 2010.
In view of the above said discussion it is clear that the Case No. : 21414/09 Page No. 20 of 19 accused has not been able to prove the case against him and has failed to rebut the presumptions U/s 118 and 139 of Negotiable Instruments Act by producing any cogent evidence.
It is important to mention here the judgment of Hon'ble Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee 2001 Crl. L.J 4647 while dealing with Sections 138 and 139 of Negotiable Instruments Act held that :
"whenever a cheque was issued to the complainant for a specific amount, there is a presumption that it is towards discharge of legally enforceable debt. In the event of dispute, the burden is on the accused to prove that there is no subsisting liability as on the date of issuing of cheque and the proof must be sufficient to rebut the presumption and mere explanation is not sufficient. So there is obligation on the part of the Court to raise the presumptions under Section 118 and 139 of the Negotiable Instruments Act in every case where the factual basis for raising of the presumption had been established."
Therefore in the light of the above said judgment the evidence to be produced by the accused or defence taken by the accused should be sufficient in the eyes of law to rebut the presumptions against the accused and in the case in hand accused has failed to rebut the presumption U/s 118(a), (b) & Section 139 of Negotiable Instruments Act.
Case No. : 21414/09 Page No. 21 of 19
(f) The drawer of the cheque has failed to make the payment within 15 days of the receipt of legal demand notice. The accused has nowhere in his testimony has been able to show that he made the payment of the cheques involved in question. He only stated that he paid Rs. 90,000/ in September 2009 to the complainant but he cannot produce the receipts of the same because they were lying in the vehicle when it was repossessed. Therefore accused has failed to prove that he made such payment to the complainant. He also admitted that he made the payment of Rs. 31,000/ which was even acknowledged by the A.R. in his crossexamination, but as admitted by both the parties it was pertaining to the cheque in another complaint case. Therefore, it is proved that accused had not made any payment to the complainant after receiving the legal demand notice from the complainant.
In view of the aforesaid discussion the offence U/s 138 Negotiable Instruments Act stands proved against the accused. The accused Gurjeet Singh stands convicted for the above said offence.
Let the convict 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. 12/01/12 (NITI PHUTELA)
MM:DWARKA
Case No. : 21414/09 Page No. 22 of 19