Delhi District Court
Vide This Judgment I Shall Dispose Of The ... vs Unknown on 22 June, 2015
IN THE COURT OF MS. MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTHWEST, ROHINI, DELHI
Unique ID No. 02404R0094192012
CC No. 439/1/12
H.C.D. Maini
S/o Late Sh. S.C.D. Maini
R/o B1/23, Sector11,
Rohini, Delhi110085. ............Complainant
Versus
Vikram Tiwari
S/o Late Sh. K.M. Tiwari
R/o B8/5859, Ground Floor,
Sector11, Rohini,
New Delhi110085. .............Accused
JUDGMENT
(1) Name of the complainant, H.C.D. Maini
parentage & address S/o Late Sh. S.C.D. Maini
R/o B1/23, Sector11,
Rohini, Delhi110085
(2) Name of accused, Vikram Tiwari
parentage & address S/o Late Sh. K.M. Tiwari
R/o B8/5859, Ground Floor,
Sector11, Rohini,
New Delhi110085
(3) Offence complained of or
proved: 138 N.I. Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 04.04.2012
(6) Date of reserve of order: 20.05.2015
(7) Date of Final Order: 22.06.2015
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 1
(8) Final Order: Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That the accused was well known to the complainant and offered the complainant to invest the amount received as retirement benefits with him on higher rates of interest i.e. 56% per month. Accused represented that he had good clientage and circle of needy people from whom accused was charging interest at the rate of 810% per month and in this manner, a good amount could be earned by the complainant. The accused succeeded to pursue the complainant and complainant advanced a total sum of Rs. 13,84,500/ to the accused on various dates.
The loan of Rs. 1,30,000/ out of total sum of Rs. 13,84,500/ was advanced to the accused by the complainant for the period of six months. Sum of Rs. 1,00,000/ was given by way of cheque and sum of Rs. 30,000/ was given by way of cash. For this loan amount, loan agreement dated 16.05.2011 was executed by the accused and he agreed to pay interest at the rate of 5% per month, payable every month in advance. One post dated cheque bearing no. 108377 dated 16.12.2011 for amount of Rs. 1,30,000/ drawn on Oriental Bank of Commerce, Sector5, Rohini, was issued by the accused towards principle amount. The accused failed to pay the subsequent interest and the said cheque on presentation got dishonoured vide cheque returning memo dated 04.02.2012 with the reason "funds insufficient". Thereafter, complainant having no other resort, issued statutory demand notice dated 24.02.2012 through Speed post and registered AD within stipulated period. The said legal notice was duly received by the accused and reply to the same was also given by the accused through his counsel. Thereafter, complainant finally has filed the present complaint case with the H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 2 submission that accused be summoned, tried and punished according to law.
3. In his pre summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record statement of account of Axis Bank of the complainant is exhibited as Ex. CW1/1, true copy of cheque bearing no. 085034 dated 16.05.2011 for sum of Rs. 1,00,000/ drawn on Axix Bank, Rohini, New Delhi and photocopy of driving license of accused as Ex. CW1/2(colly), loan agreement as Ex. CW1/3, cheque bearing no. 108377 dated 16.12.2011 for amount of Rs. 1,30,000/ drawn on Oriental Bank of Commerce, Sector5, Rohini as Ex. CW1/4, cheque returning memo dated 04.02.2012 as Ex. CW1/5, legal demand notice dated 24.02.2012 as Ex. CW1/6, postal receipt as Ex. CW1/7, AD card as Ex. CW1/8 and reply of legal notice as Ex. CW1/9.
4. Accused was summoned for an offence punishable under Section 138 of Negotiable Instruments Act and notice under Section 251 Cr. P.C. for this offence was framed upon him on 18.12.2012 to which he pleaded not guilty and claimed trial. He stated that ten blank signed cheques were issued by him to the complainant as security for procuring loan of Rs. 20,00,000/ from Canara Bank and Muthoot Finance as complainant was retired as General Manager from Canara Bank and he was working as Manager with Muthoot Finance after his retirement. However, no loan was ever procured by the complainant for him. Accused also stated that he pledged his gold with Muthoot Finance twothree years ago and he gave his blank signed cheques to them also. The complainant, being Manager in Muthoot Finance, misused his blank cheques which were lying with Muthoot Finance. It is also stated by the accused that he received intimation that his two cheques were stolen from the possession of the Muthoot Finance. Written complaint was also filed by him regarding the same in police station Prashant Vihar, DCP concerned and Commissioner of Police.
5. In his post notice evidence, complainant examined three witnesses including himself as CW1. He adopted his presummoning evidence towards his H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 3 post notice evidence and during cross examination, he stated that during his tenure in Muthoot Finance, he met accused who used to take gold loan from Muthoot Finance. For giving loans, few forms were to be filled and sometimes cheques were also taken in favour of Muthoot Finance. The same procedure was also adopted for giving loan to the accused. The loan of Rs. 13,84,500/ was given by him in ten to eleven installments from March, 2011 to November, 2011. Loan agreements were also executed regarding the loan transaction. He did not give any notice to the accused in writing for claiming interest and before presentation of cheque in question in bank. He stated that at the time of handing over Ex. CW1/4 to him, it was completely filled up. He denied that Ex. CW1/3 was forged and fabricated document. He accepted that at para 1 in Ex. CW1/3, it is mentioned that entire loan amount of Rs. 1,30,000/ was paid to the accused in cash. He voluntarily stated that as cheque amount of Rs. 1,00,000/ was encashed by the accused on 16.05.2011 itself, the same was so mentioned.
CW2 Sh. Rahul Matlani from Axis Bank brought the statement of account Ex. CW2/1 and stated that the payment of cheque Ex. CW1/2 was given in cash to the accused.
CW3 Sh. Rakesh Kumar Singal, from Oriental Bank of Commerce brought the statement of account Ex. CW3/1 and stated that there was no balance in the account from which cheque Ex. CW1/4 was drawn.
6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to the accused to which he stated that he never took any loan from the complainant. The complainant was working as Manager in Muthoot Finance and told him that he could get the loan sanction from different banks at lower rate of interest and hence, he handed over some blank cheques including cheques in question to the complainant for commission/security purpose. The complainant did not get any loan sanction to him and misused the cheques in question. He denied for any liability towards the complainant.
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 47. Accused examined three witnesses including himself as DW1 in his defence evidence. He stated in his examination in chief that he met the complainant for the first time in February, 2011 as he was working as Manager in Muthoot Finance. The complainant offered him for better loan options from the banks on lower rate of interest. For arranging loans from different banks, the complainant asked him to complete certain documentary requirements and to give few blank signed papers, blank signed stamp papers and blank signed cheques and photocopies of ID proof. The complainant assured him to use blank signed cheques for the commission purpose only against the loan. The complainant never arranged any loan from him and he refused to return his blank signed documents and cheques. Cheque Ex. CW1/2 was given by the complainant to him to be encashed for the complainant on 16.05.2011 as he was busy in work. During crossexamination, he accepted his signatures on Ex. CW1/3 at point X, Y & Z, however, he is stated that the same were taken by the complainant on the blank papers. During evidence, accused placed documents Ex. DW1/1(colly) & Ex. DW1/2(colly) on record which are the certified copies of the complaint filed by nephew of the complainant and his friend against the accused.
DW2 Ms. Aarti Tiwari supported the version of the accused. DW3 Sh. K.G. Sharma, from Muthoot Finance stated that now a days Muthoot Finance does not take any blank cheque from the applicant at the time of sanctioning of loan.
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length. Written arguments were also submitted on behalf of both the parties.
9. Following submissions were made on behalf of the complainant: ● That loan was advanced by the complainant to the accused as accused was well known to the complainant.
● That the cheque in question was given towards the legally enforceable debt. Reliances placed upon by the complainant on Y. Sreelatha @ Roja v.
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 5Mukanchand Bothra.
● That cheques in question were returned dishonoured with the reason "insufficient funds" and hence accused commenced an offence under Section 138 NI Act.
● That all the ingredients of the offence under Section 138 NI Act are fulfilled by the complainant.
● That presumption under Section 118 & 139 lies in favour of the complainant. Reliances placed upon by the complainant on Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 ● That during trial accused has accepted that all the cheques in question were issued by him.
● That the accused has also accepted during trial that all the cheques in question were issued by him in his full senses.
● That signatures on the cheques in question are accepted by the accused. Reliances placed upon by the Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 S.C.C. 16 & Rangappa v. Sri Mohan A.I.R. 2010 SC 1898. ● That accused executed loan agreement with the complainant regarding loan taken by him.
● That all the payments were acknowledged by the accused. ● That sources of advancement of loan is established by the complainant as most of the payments were routed through bank Account. ● That during trial defence taken by the accused is that the cheques in question and stamp papers were signed by him in blank.
● That the accused is an educated person and no question arises that he gave blank cheques and blank signed stamp papers to the complainant. ● That all the cheques in question were issued by him for consideration.
10. Per contra, following submissions were made on behalf of the accused: ● That as per the complainant, there was commercial transaction between him and the accused.
● That as per the loan agreement, the loan was given by the complainant in H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 6 cash, however, as per the complaint, the loan was given by the complainant by way of cheque as well as by way of cash and hence, there is contradiction in contents of complaint and loan agreement.
● That the complainant has not mentioned as how interest on the loan was repaid by the accused.
● That the diary in which complainant stated to maintain the transaction between him and the accused, was not brought on record by the complainant.
● That the complainant took several blank signed papers and cheques on the pretext of arranging loan for the accused and same papers are misused by the complainant in Ex.CW1/3.
● That no written notice was given by the complainant to accused before presentation of cheque.
● That no question is asked from the accused as to how the blank signed cheques and papers were given by the accused.
● That wife of the complainant was witness of the document Ex.CW1/3 but she was not examined by the complainant.
● That accused has relied upon the following authorities:
1. Shajahan T.M. v. P.J. Abraham, Puthenpurayil House & Anr. 2012 (2) DCR 40 (Ker).
2. Vipul Kumar Gupta v. Vipin Gupta 2013 (2) BC 36B (CN).
3. Virender Singh v. Laxmi Narain & Anr. 2007CRi,L.J. 2262.
4. Nanda (Smt.) v. Nandkishor 2010 (1) DCR 618 (Bom).
5. Anil Kumar Haritwal & Anr. v. Alka Gupta & Anr. AIR 2004 SC 3978.
6. C. Antony v. K.G. Raghavan Nair 2003 (1) SCC 1.
Same are perused and taken into consideration.
11. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first: As present complaint is under Section 138 of Negotiable Instruments Act, there are three ingredients as follows held by the Hon'ble Supreme Court of India H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 7 in Krishna Janardhan Bhat (supra).
Three ingredients of Section 138 of the Act, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said Section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; 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.
Section 118(a) and Section 139 of the said act are read as under:
Section 118 Presumption as to Negotiable Instruments : Until the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;
Section 139. presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge in whole or in part, of any debt or other liability.
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 813. For the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal (supra).
14. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
15. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case, the accused has admitted his signatures on the cheque in question and on document Ex.CW1/3. Reference has been made to Judgment of Apex Court in Rangappa(Supra) that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
The defence taken by the accused is that he gave several cheques and blank signed papers and stamp papers to procure loan from the complainant but no loan was arranged by the complainant for him. Accused in the present case is an educated person. Hence, it is difficult to believe that he would have given several blank signed papers and cheques for securing loan. No police complaint is made and no intimation was given by the accused to the bank before filing of the present case for non returning of the cheques and blank signed papers by the H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 9 complainant. Police complaint made by the accused against the complainant is not proved by the accused. Accused has also failed to prove that his some cheques were stolen from Muthoot Finance. Accused accepted that he encashed the cheque Ex.CW1/2. He stated that the cash received by him for the said cheques was handed over by him to the complainant. No receipt and documentary proof is given by the accused regarding the same. Same defence is taken by the accused in other connected cases. It is difficult to believe that accused each and every time handed over the cash to the complainant and that too when complainant did not provide a single penny loan to him. Further, the complainant was manager in Muthoot finance and it is difficult to believe that complainant would have taken help of accused for getting cheques encashed. No criminal case is filed by the accused against the complainant for misusing his blank signed papers. Written Police complaint filed by accused regarding the stolen cheques from Muthoot Finance is also not proved by the accused.
DW3 Sh.K.G.Sharma stated that now a days no cheques are taken by Muthoot Finance for granting loan. This does not mean that Muthoot finance never took any cheque for providing loan. Hence it cannot be said that there is contradiction between statement of CW1 and DW3. Accused has not adduced any other evidence to prove that Muthoot finance never took any cheque for providing loan. In view of the above, it comes out that accused has failed to prove his defence. Complaints filed by nephew of the complainant and his friend against the accused are not relevant for deciding the present case. Further complaint case under Section 138 of the Act is not barred in case of loan advanced for earning interest. Reliance is placed upon Kajal v. Vikas Marwah as decided by Hon'ble High Court of Delhi on 27.03.2014. The defence taken by the accused seems to be afterthought.
16. In view of the above, this court is of the considered opinion that In the present case, accused has failed to rebutt the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has proved his case beyond H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 10 reasonable doubt.
17. As the complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
18. Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
TODAY i.e, 22nd JUNE, 2015 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 11
1
IN THE COURT OF MS. MEENU KAUSHIK, MM, NORTHWEST,
ROHINI COURTS, DELHI.
CC No. 439/1/12
H.C.D. Maini v. Vikram Tiwari
27.06.2015
ORDER ON SENTENCE
Present: Complainant in person.
Convict with Ld. counsel Sh. Gurmeet Singh Hans.
Arguments heard on the point on sentence. It is stated by the Ld. counsel for the convict that convict is the only breadwinner in his family and is having family consisting of two minor children, his wife and old age mother. It is further submitted that convict is presently earning only about Rs. 20,000/ per month and he is first time offender, therefore lenient view may be taken.
Per Contra, complainant has submitted that the matter pertains to the year 2012 and relates to loan transaction and the convict has defrauded him as cheque in question was dishonored. It is further submitted by the complainant that convict is man of means and he has handsome monthly income. He is wrongly submitting in the court that he is having monthly income of Rs. 20,000/ only.
I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2012 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2012 and cheque bouncing cases are on high rises and releasing the convict on probation would not have deterrent effect in the society.
Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs. 1,70,000/ (Rs. One Lakh Seventy Thousand Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 6 months.
H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 12
2
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been moved on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of 30 days from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 20,000/ with surety of like amount. Requisite bail bonds furnished. Same are accepted till 27.07.2015.
Copy of this order be given to the convict free of cost.
Announced in the open (Meenu Kaushik) court on 27.06.2015 MM (N/W)/Rohini Courts, Delhi. H.C.D. Maini v. Vikram Tiwari CC No. 439/1/12 13