Delhi District Court
7. Further, In Jaipal Singh Rana vs . Swaraj Pal 149 (2008) Dlt 682, It Was ... on 20 December, 2012
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -08, ROOM NO.212
DWARKA, DELHI
INDIABULLS FINANCIAL SERVICES LTD.
Versus
AMIT MENS WEAR AND OTHERS
CC No.885/1/11
PS: Connaught Place
U/s-138, NI Act
1. Serial No. of the case : 02405R0194592011
2. Date of commission of offence : 30.04.2011
3. Name of the complainant : Indiabulls Financial Services Ltd
(Through its Authorized Representative)
Registered Office at F-60, Second floor,
Malhotra Building, Connought Place, New
Delhi -110 001
4. Name of the accused, and his : 1.Amit Mens Wear, X-353, Lane no.08,
Mohalla Ram Nagar,Gandhi Nagar New
Delhi-110 031
2. Santosh Aggarwal (partner) C-491, C
Block, New Delhi 110 092
3. Pawan Kumar Aggarwal (Partner /
Authorized Signatory), House no.491, C
Block, Yojna Vihar, New Delhi-110 092
5. Date of Reserving Judgment : 12.12.2012
6. Date when judgment was : 20.12.2012
pronounced
7. Offence Complained of : Section 138, NI Act
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquittal
10. Date of Order : 20.12.2012
Complaint case no.885/1/11
Indiabulls Financial..v. Amit Mens Wear 1
-:: JU DGMENT ::-
Brief Statement of reasons for the decision of the case
1. It is the case of the complainant that the accused has committed an offence under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act). The complainant has alleged that the accused 2 is the partner / Authorized Signatory of accused no.01 and accused had applied a business loan from the complainant and complainant has sanctioned a business loan of Rs.20,17,760/- to the accused vide loan no. LIFSBDL 000 39928. In part payment of the due amount, the accused issued a cheque bearing no.170469 dated 01.03.2011 for Rs.59,801/- drawn on Oriental Bank of Commerce 7, Mohilla Colony, Gandhi Nagar, Delhi. The said cheque was presented by the complainant and the same was returned dishonoured with the remarks 'Insufficient Funds' vide returning memo dated 30.04.2011.. Thereafter, it is the case of the complainant that it served upon the accused a legal notice dated 12.05.2011 but despite service of the same, the accused failed to make the payment. Hence, the present complaint under Section 138 NI Act was filed.
2. Pre-summoning was led by the complainant and the cognizance was taken against the accused vide order dated 09.08.2011. Accused put in his appearance and was granted bail on 09.02.2012. Thereafter, on the basis of prima facie material on record, notice under Section 251, CrPC was served upon the accused on 03.03.3012 to which he pleaded not guilty and claimed trial. The accused was permitted to cross examine the CWs. CE was closed vide order dated 16.04.2012.
3. Statement of Accused under Section 313 CrPC was recorded on 30.04.2012. The accused was permitted to lead evidence in his defence and he got examined DW1 Shri Chaman Lal Assistant Post master. DE was closed vide order dated 05.11.2012. Arguments have been advanced by the Ld. Counsels for the complainant and the accused. Thereafter, the matter was reserved for Orders.
Complaint case no.885/1/11 Indiabulls Financial..v. Amit Mens Wear 2
4. In the present matter, the complainant has alleged the commission of offence under Section 138 NI Act by the accused alleging that in lieu of the part payment of the loan taken by the accused from the complainant, the accused had issued cheque Ex.CW1/C in favour of complainant. Secondly, the complainant alleges that when the said cheque was presented by the complainant in its bank, same was dishonoured with the remarks 'Funds Insufficient' vide returning memo dated Ex.CW1/D and despite service of legal notice, the accused did not make the payment and hence the offence is made out.
5. The Ld. Counsel for the accused has argued that though he does not dispute the signatures of the accused on the cheque Ex.CW1/C, the cheque had given the same to the complainant at the time of taking loan as a security as a pre-condition for availing the loan. He submits that the details have been filled by the complainant itself and hence he is not liable for the alleged offence. In this regard, the Ld. Counsel for the accused has relied upon case titled as Santhi v. Mary Sherly 2012 (1) DCR 385 wherein it has been held by the Hon'ble Kerela High Court that:
"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leaf is very often referred to as a blank "cheque", but, strictly speaking, it is not a "cheque", as defined under the Act. It can be treated only as a "cheque leaf containing admitted signature of accused. The admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. The argument that accused admitted "execution" of the cheque in the reply notice etc., cannot therefore, be accepted."
6. Hence, it is argued by the Ld. Counsel for the accused that in view of the same, even though the accused has admitted that the signatures on the cheque Ex.CW1/C are his, yet it does not imply that the cheque was drawn by him in the favour of the complainant. However, at this stage, it is pertinent to refer to Section 20 of the NI Act which contains provision regarding 'inchoate instrument'. Section 20 is as under:
Complaint case no.885/1/11 Indiabulls Financial..v. Amit Mens Wear 3 "Inchoate stamped Instruments - Where one person signs and delivers to another papers stamped in accordance with the law relating to negotiable instruments then in force in (India), and either wholly blank of having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount co red by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, in any holder in due course of such amount; provide that no person other than a holder in due course shall recovered from the person delivering the instruments anything in excess of the amount intended by him to be paid hereunder."
7. Further, in Jaipal Singh Rana vs. Swaraj Pal 149 (2008) DLT 682, it was held by Hon'ble High Court of Delhi that:
''................ by putting the amount and the name of payee, there is no material alteration on the cheque under Section 87 of Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date........''.
8. Also, in the case of Ravi Chopra v. State 2008 (2) LRC 118 (Del), it was held by Hon'ble High Court that:
"....................it is possible for drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filed by the payee at a subsequent point of time''.
9.In the case of D. Atchyutha Reddy v. State of A.P. Through Public Prosecutor, 2010 (2) RCR 880 (AP), it was held that the cheque could be filled up by anybody if it is signed by the account holder of the cheque. It was further held that body of the cheque need not necessarily be written by the accused and it can be in the handwriting of anybody else or typed on a machine, so long as the accused does not dispute the genuineness of the signatures on the cheque.
10. Therefore, in the light of Section 20, NI Act and the above discussed case law, even if Complaint case no.885/1/11 Indiabulls Financial..v. Amit Mens Wear 4 the averment of the accused that at the time of signing and handing over the cheque, the same was blank is taken to be correct, a presumption is drawn against the accused that he had given the blank cheque to the complainant with an implied authority to fill in the blanks at a later time and present the cheque for encashment. Now, the onus shifts upon the accused to show that such an implied authority was not there or that the cheque was misused by the complainant. However, this onus has not been discharged by the accused. He has not led any evidence to prove this averment. Hence, in view of the same, the court is of the opinion that the complainant has successfully proved that the cheque Ex.CW1/C was issued by the accused in the favour of the complainant.
11. Then, the Ld. Counsel for the accused has argued that in the present case, the complaint has been allegedly filed through the authorized representative of the complainant. However, the alleged authority letter has not been proved sufficiently as the complainant has failed to prove the Resolution allegedly passed in the favour of the complainant. In this regard, Ld. Counsel for the accused has relied upon cases titled as Anna Saheb Chougule Urban Cooperative Bank Limited v. Narayan Pandurang 2009 (1) DCR 615 (Bom.) and Kalim M. Khan v. S. O. Maharashtra (2009) 1 DCR 78 (Bom.). Admittedly, the resolution has not been proved and hence it cannot be said that the complaint has been duly instituted and prosecuted.
12. Ld. Counsel for the accused has also submitted that in the present matter, the complainant has failed to raise the presumption under Section 139 and 146 NI Act in his favour in as much as the factum of the dishonor of cheque has not been sufficiently proved. Ld. Counsel for the accused has referred to returning memo Ex.CW1/D whereby the date of presentment of the cheque is stated to be 29.04.2011. Thereafter, Ld. counsel for the accused referred to statement of account filed and proved as Ex.CW1/K by the complainant. It is stated by Ld. counsel for the accused that the statement as filed by the complainant shows all the payments made by the accused in favour of complainant including the presentment of cheques of the EMIs. He submits that on perusal of the same, it is shown that the cheque Ex.CW1/C was firstly presented by the complainant on 01.03.2011 and on 03.03.2011, it was dishonoured and Complaint case no.885/1/11 Indiabulls Financial..v. Amit Mens Wear 5 same was presented again on 14.03.2011 and on the same day, it was dishonored again. Thereafter, the cheque was presented for the third time on 03.05.2011 and it got returned on the same day. It is stated by Ld. counsel for the accused that in the statement Ex.CW1/K, there is no entry for presentment of the cheque on 29.04.2011 as alleged vide returning memo Ex.CW1/D. In view of the same, Ld. counsel for the accused submits that either the returning memo Ex.CW1/D is false or statement Ex.CW1/K is false. Both cannot be correct and hence reliance placed on both the documents by the complainant is unacceptable.
13.The returning memo Ex.CW1/D is a simple print out bearing no stamp or seal of the bank of the complainant, nor the same is certified to be correct as per Bankers Books of Evidence Act. Section 146 NI Act states that the bank's slip shall be prima facie evidence of the fact of dishonour of cheque, if it bears the official mark of the bank. Here, the memo Ex.CW1/D does not bear the official mark. Hence, the presumption under Section 146 NI Act is not raised in the complainant's favour. Further, as pointed out by the Ld. counsel for the accused, the complainant also did not summon any of the official of the concerned bank to prove the said returning memo. In view of the same, the court is of the opinion that the complainant has failed to discharge the primary onus placed upon it by virtue of Section 138 NI Act. Hence, no offence is made out against the accused. The accused is acquitted of the present case. Bail bonds furnished are accepted for a period of six months for the purpose of Section 436A CrPC.
File be consigned to record room.
ANNOUNCED IN THE OPEN (RUCHIKA SINGLA)
COURT ON 20.12.2012 METROPOLITAN MAGISTRATE-08
DWARKA COURTS, DELHI
Complaint case no.885/1/11
Indiabulls Financial..v. Amit Mens Wear 6