Delhi District Court
Shyam Lal vs . Surender Pruthi on 20 October, 2020
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
Criminal Complaint No.: 15971//2017
Shyam Lal ......... Complainant
Versus
Surender Pruthi ......... Accused
1. Name & address of the complainant : Shyam Lal
S/o Late Sh. Mangat Ram
R/o H.No. 43A, Old Roshan Pura,
Najafgarh, New Delhi110043.
2. Name & address of the accused : Surender Pruthi
S/o Sh. Kharati Lal
R/o H.No. 835/6, Som Bazar,
Najafgarh, New Delhi110043.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final order : Convicted
6. Date of Institution of case : 11.08.2017
7. Date of decision of the case : 20.10.2020
CC No. 15971/17 1/15
Shyam Lal Vs. Surender Pruthi
JUDGEMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant, Shyam Lal (hereinafter referred to as the 'complainant') against accused, Surender Pruthi (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case is that in the month of April 2017, the accused was in the dire need of money of Rs. 2,00,000/ and the accused requested to teh complainant to advance the loan in cash. The complainant being in family relations with the accused promised to arrange the money demanded by the accused. On 15 th April 2017, the complainant arranged Rs. 1,00,000/ and paid to the accused. The accused promised to pay the said amount in the month of May, 2017.
2.1. To discharge this liability, the accused tendered one cheque amounting to Rs. 1,00,000/ bearing no. 082026 dated 25.05.2017 drawn on Canara Bank, Najafgarh Branch, New Delhi110043 (hereinafter referred to as the 'cheque in question') in favour of the complainant company with the assurance that the same will be honoured. Upon presentation whereof, however, the same got dishonoured vide return memo dated 29.05.2017 with the remarks "Funds Insufficient". Thereafter complainant contacted the accused on phone and informed the accused regarding the dishonor of the cheque and accused sought time to arrange funds and assured the complainant to present the said cheque again. Thereafter complainant again deposited the said cheque in his bank, but again the same got dishonoured vide return memo dated 12.06.2017 with the remarks "Funds Insufficient". The complainant thereafter, sent a legal demand notice dated 29.06.2017 and 19.07.2017 to the accused calling upon him to repay the loan amount within fifteen days of the receipt thereof.
2.2. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 16.08.2017.
CC No. 15971/17 2/15Shyam Lal Vs. Surender Pruthi
3. Presummoning evidence: To prove his case prima facie, the complainant led the presummoning evidence under section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/A wherein the complainant avouched the same facts as are averred in the complaint.
4. Documentary evidence: To prove the above claims, the complainant has filed the Original Cheque in question as Ex. CW1/1, the cheque return memo in respect of the cheque in question, as Ex. CW1/2 and Ex. CW1/3. The legal demand notice sent to the accused by the complainant as Ex. CW1/4 and the postal receipts qua the same as Ex. CW1/5(colly.) and Ex. CW1/6 (colly.) and courier receipt as Ex. CW1/7.
5. Notice: Framed under section 251 Cr.P.C. against the accused pursuant to arguments being advanced on the point of consideration thereof by the court on 23.03.2018. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
6. Plea of the accused: The accused pleaded not guilty and claimed trial. He stated in his defence that he never issued the cheque in question in favour of complainant and he had misplaced the cheque which has been misused by the complainant. He further stated that he had filed a complaint in this regard on 14.11.2016, he did not know as to how the complainant procured the cheque. He stated that he never took any friendly loan from him. As such he owe no liability towards the complainant.
7. Evidence of the complainant: To prove his case, the complainant adopted his presummoning evidence as postsummoning evidence and got himself examined as CW1. He was subjected to crossexamination at length by the counsel for Accused and finally the cross examination of the complainant was closed on 28.09.2019 and the complainant closed his evidence the very same day.
CC No. 15971/17 3/15Shyam Lal Vs. Surender Pruthi
8. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 04.07.2019 wherein he stated that he does not know the complainant. He has not issued any cheque to the complainant and he had never approached the complainant for any loan whatsoever. He stated that his cheque book were lost regarding which he has already lodged complaint to the police. He further stated that he suspect that the complainant has got hold off his lost cheque book and the same was misused against him. He admitted that he has signed the cheque in question.
9. Defence Evidence: The accused got herself examined and her witnesses u/s 315 Cr.PC. The accsued got herself examined as DW1. The defence witnesses was duly crossexamined by the learned counsel for complainant. DE was closed by the accused on 20.02.2020. Thereafter, the matter was fixed for final arguments.
10. Final Arguments: Ld. Counsel for the complainant argued that a loan of Rs. 1,00,000/ was given to the accused. In discharge of his liability, accused has advanced the impugned cheque. Ld. counsel has argued that the version of accused is totally false and substantiated by any evidence to withstand prosecution story. He further submitted that, the defence has failed to revert the presumption raise u/s 118 r/w 139 NI Act. Accordingly, learned counsel prayed that the accused be convicted for the offence under section 138 NI Act.
11. Per contra, learned counsel for the accused, argued that the accused owes no legal liability towards the complainant as the impugned cheque was never issued by the accused to the complainant, rather it was misplaced by the accused. Ld. Counsel further submits that to further prove his point accused is annexed the police complaint and other relevent documents. Ld. Counsel for the accused submits that the offence u/s 138 NI Act is not created in the present complaint as the legal demand notice was never served to the accused. Accordingly, he submitted that the complaint being a false one, the accused is entitled to be acquitted.
CC No. 15971/17 4/15Shyam Lal Vs. Surender Pruthi
12. I have heard both the learned counsel, perused the material on record and considered the submissions advanced.
13. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
14. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and CC No. 15971/17 5/15 Shyam Lal Vs. Surender Pruthi
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
15. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
16. Having said that, it becomes imperative to mention section 139 of The Negotiable Instruments Act, 1881 which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
17. Having said that, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given.
CC No. 15971/17 6/15Shyam Lal Vs. Surender Pruthi
18. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. "
19. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
A. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability:
20. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has admitted his signature on the cheque in his examination in chief, in his statement U/S 313 of Cr.P.C and Notice of Accusation. However, he denied issuing the cheque in favour of complainant in lieu of CC No. 15971/17 7/15 Shyam Lal Vs. Surender Pruthi friendly loan taken by him from complainant. He also denied filling the particulars in cheque. While putting Notice of Accusation (NOA), the accused has come up with the defence that the accused has misplaced the cheque and for the same a complaint was filed by the accused in the year 2016 and thus, the cheque has been somehow procured by the complainant and thereby misused.
21. The factor that renders this defence version bizarre and suspicious is that the accused has brought forth not even an iota of evidence to pillar his defence. It is in this regard pertinent to mention that in his examination in chief as DW1, the accused has stated that he does not know the complainant and has seen the complainant first time in court. Further, the accused has stated, that on 14.11.2016 he had made a complaint regarding misplacing of Canara Bank and ICICI Bank Cheque book along with some confidential papers. The accused further deposed that, the cheque books lost contained blank signed cheques of the complainant and accused has doubt that the complainnat might have found the same and now misusing the same.
22. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides. In the present case, the onus to prove that the accused has not advanced the impugned cheque for the purpose alledged by the complainant, rested upon the accused. During the crossexamination of the accused (DW1), the accused deposed that he is the proprieter of M/S Aman Tyres and been doing business from past 32 years. Accused further deposed during crossexamination, that he maintains account in ICICI and Canara Bank but has stopped doing transactions from Canara Bank. Accused further deposed during crossexamination, that he got to know about the dishonour of cheque from his banker. Accused further deposed during cross examination, that he does not remember which cheque book series was lost by him. Accused further deposed during crossexamination, he used to keep 1012 blank signed cheques in office for business purpose. The accused has also admitted during crossexamination, that no other cheque from the lost cheque books has bounced apart from the cheque in question. Accused further deposed during crossexamination, he filed an online NCR when he got to CC No. 15971/17 8/15 Shyam Lal Vs. Surender Pruthi know about the missing cheque books. However, the accused admitted to have not filed any 'stop payment' mandate or 'cheque missing' complaint with the bank. Although the accused further deposed, during crossexamination, that a written complaint regarding misplacing the cheque book was given to the bank and an instruction was issued to both banks to confirm before clearing any cheques from the lost cheque books. But the accused failed to bring any such document suggesting the same and has even deposed during cross examination, that he does not remember the date when was complaint filed with the bank. The accused has also self stated that more than 40 cheques have been issued to him by the banker and that is the reason why accused does not remember the series or any details regarding the cheque books so lost containing the impugned cheque.
23. At this juncture, it becomes important to point out that, that to prove his defence, the accused has brought the copy of online NCR regarding misplacing the cheque books as Ex. DW1/2. Accused has also brought his bank account statement as Ex. DW1/1, but the same is of no relevance as neither questions have been asked by the complainant over the same, nor any reliance has been placed by the accused on the same. As regarding DW1/2, it appears to be a weak piece of evidence, not convincing enough to satisfy the appetite of probable defence.
24. Their is twofold reason for saying so, firstly, online NCR regarding Missing item, is not a subject matter of any enquiry or investigation. Any person is free to register an online NCR for missing item, but that by itself does not substitute filing a written complaint to the Police. No police action or cognizance is taken for the same. The person filing the online NCR will have to approach the nearest police station in case the loss of item is due to theft or other crime. Prudence of a reasonable man dictates that missing of blank signed cheque is not a small incident that mere filing an online NCR would suffice, especially when the person is a businessman regularly dealing in cheques and knowing the gravity of missing blank signed cheques. At the least, it is expected that in case online NCR has been filed for the missing cheques, then written complaint regarding stoppage of payment with respect to lost cheques, would certainly be filed with the banker on the basis of eNCR. In CC No. 15971/17 9/15 Shyam Lal Vs. Surender Pruthi the present case, the accused has only filed an eNCR regarding the cheques as missing and not even cared to inform his banker regarding the same. The failure to lodge/file any complaint causes dubiety to lurk around the story of the defence. An adverse inference can safely be drawn against the accused who has otherwise failed to adduce any credible evidence to show that he indeed did everything within his power and control, as a prudent person would do, to ensure that the cheque lost by him was not misused. Failure of the accused to prevent such alleged misuse, when he had the knowledge that the same has been lost by the complainant renders the defence evidence weak.
25. Secondly, perusal of the eNCR reveals that a very sweeping statement has been made by the accused in the eNCR. The accused has complained that: 'I have misplaced my Canara Bank and ICICI bank Cheque book and some other confidential paper are also along with it'. There is absolutely no mention of cheque number, cheque book series number or cheque book issued year. In absence of such essential data, it will be utter disregard to the logic and common sense, to deduce that the complaint was made qua the cheque in question. Throughout the course of trial, even the accused did not whisper anything to prove that the complaint was made qua the impugned cheque.
26. Further, the accused also crossexamined the complainant. It will be pertinent to point out that accused has failed to point out any infirmities in the crossexamination of the complainant. The same are not close to rebutting the presumption as to loan being not legally recoverable or that the impugned cheque was never issued for the liability alleged by the complainant. It will be utter disregard to the established principles of evidence, if this court accepts the suggestions of the accused during the crossexamination of the complainant, devoid of any documentary evidence to concretize the proof. The story of accused, in the absence of any credible evidence, cannot be taken as a gospel truth.
27. Reliance can profitably be placed on the judgment pronounced by the Hon'ble Parent High Court in V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held CC No. 15971/17 10/15 Shyam Lal Vs. Surender Pruthi that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 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 Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
28. Now that the defences taken by the accused stand beseeched, let us examine the potentiality of the prosecution story. The complainant's story is that he granted a friendly loan of Rs. 1,00,000/ to the accused and the latter issued a PDC dated 25.05.2017 of ₹ 1,00,000/ to repay the said loan. The cheque returned unpaid for 'insufficient fund' on 29.05.2017. Again on the request of accused the cheque was presented for encashment on 12.06.2017, which again got dishonoured for the same reason. When approached by complainant, the accused kept on avoiding the complainant. The record complainant has brought to substantiate his point are the impugned cheque dated as Ex. CW1/1, the two cheque return memos' dated 29.05.2017 & 12.06.2017 as Ex. CW1/2 & Ex. CW1/3 respectively, the legal demand notice with respect to cheque Ex. CW1/4, and postal receipt with delivery report as Ex. CW1/5, Ex. CW1/6 & Ex. CW1/7 respectively.
29. The accused did not bring any evidence to impeach the credibility of the said document, rather accused admitted on the point of having signed the Cheque voluntarily. Further, the fact that accused, in his defence, has not been able to sufficiently prove the factum of the impugned cheque as missing/stolen, raises the presumption of Section 138 CC No. 15971/17 11/15 Shyam Lal Vs. Surender Pruthi read with Section 118 of the NI act.
30. The burden lied heavily on the accused to have probablised the factum of repayment of the loan. It is not the case of the accused that the complainant obtained his signatures under duress or by exerting undue influence. Additionally, the accused has averred that he has signed the impugned cheque but not filled the particulars. The fact that it was a blank signed cheque to the complainant and the particulars were not filled by accused does not dilute the liability of the accused as the legal position on inchoate instruments is well settled. Section 20 of the NI Act provides that if a person signs and delivers a paper stamped in accordance with the loan and either wholly blank or have written thereon an incomplete negotiable instrument, such person thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. In Ravi Chopra v. State and others [2008 (102) DRJ 147], the Hon'ble High Court of Delhi has been held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date.
31. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant and lastly, that the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of section 138 NI Act stands assembled.
B. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
32. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/1 dated 25.05.2017 and the return memo Ex CW1/2 & CW1/3 is dated 29.05.2017 & 12.06.2017, thus, being presented within prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
CC No. 15971/17 12/15Shyam Lal Vs. Surender Pruthi C. That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank:
33. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonour of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. Further, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled.
D. The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid
34. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the legal notice Ex. CW1/4 vide postal receipt alongwith tracking report EX. CW1/5 & CW1/6. Though the accused has denied this fact but he has not led any evidence to establish the same. The accused has stated in his final arguments that the legal demand notice was never received by the accused, and thus no offence of Section 138 NI act was created. The accused has further stated that address given by the accused in notice of accusation, statement under Section 313 CrPC is also different. However, perusal of record reveals that summons issued by this court were served by the process server on the address given on legal demand notice. Further, counsel foe accused even appeared upon service of the summons, but thereafter the accused did not appear, taking cognizance of which this court issued NBWs against the accused. Thus, the receipt of legal notice to accused and service of summons on the address given on legal demand notice is sufficient to fulfil the criteria as required for the offence under section 138 NI Act.
CC No. 15971/17 13/15Shyam Lal Vs. Surender Pruthi
35. Thus, the fourth condition, to entail liability under section 138 of the Negotiable Instruments Act, 1881, is fulfilled.
E. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice:
36. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within fifteen days on the pretext that he owes no liability towards the complainant and accused has also admitted this fact during his cross examination and during his examination under Section 313 of CrPC. Thus, the last limb of what will entail the liability against the accused is also structured.
37. Ratio: Since in the instant case, the accused has failed to lead any convincing evidence to aid him in discharge of his onus, the presumption of law operates in favour of existence of debt or liability. I am of the opinion that the defence set up by the accused is neither definitive nor consistent with his innocence. It was the sole burden and duty of accused to prove absence of liability by raising a ''probable'' defence. However, he has failed to discharge his onus. Except for making bare averments, accused has not led any cogent evidence which could be termed as a probable defence. It is pertinent to note that though accused has taken multiple defences, but as discussed above, none of them have raised a probable defence in his favor.
38. Having considered the entire evidence, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of the Act. Accordingly, accused Surender Pruthi is found guilty of offence u/s 138 NI Act.
CC No. 15971/17 14/15Shyam Lal Vs. Surender Pruthi
39. Let he be heard on point of sentencing today.
40. Let the copy of this judgment be given to the convict free of cost.
41. A copy of the order be sent to District Courts website.
ANIMESH Digitally
ANIMESH
signed by
BHASKAR BHASKAR MANI
TRIPATHI
MANI Date: 2020.10.20
TRIPATHI 16:21:44 +0530
Announced in the open court on Animesh Bhaskar Mani Tripathi
20.10.2020 MMNI Act 02, SW/Delhi
CC No. 15971/17 15/15
Shyam Lal Vs. Surender Pruthi