Delhi District Court
Sh. Manish Sharma vs Sh. Kapil Srivastava on 15 July, 2024
IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE FIRST
CLASS, N.I. ACT-02, CENTRAL, TIS HAZARI COURTS, DELHI
CC No. 537519/2016
CNR No. DLCT020097112016
MANISH SHARMA Vs. KAPIL SRIVASTAVA
U/s 138 N. I. Act
PS KOTWALI
JUDGMENT
Sl. No. of the case 537519/2016 Date of institution of the case 23.06.2016 Name of Complainant Manish Sharma S/o Late Poonam Chand Sharma
R/o 4350, Gali Bhairon, Nai Sarak, Delhi- 110006 Name of Accused, parentage Kapil Srivastava Proprietor M/s Abhisaar Medicos and address C/o 5919, Jogiwara, Ballimaran, Delhi- 110006 Also At: 2858, Gali Ghasi Ram, Hauz Qazi, Delhi-
110006
Offence complained of Section 138 Negotiable Instruments Act
Plea of accused Accused pleaded not guilty
Final order Accused Kapil Srivastava is acquitted
Date of pronouncement 15.07.2024
1. The present complaint has been filed by the complainant against the accused for dishonour of 02 cheques bearing No. 140552 dated 20.05.2016 for Rs. 49,500/- drawn on Oriental Bank of Commerce, Branch Chawri Bazar, New Delhi in favour of the complainant which was returned unpaid due to the reason, "Funds Insufficient" vide cheque returning memo dated 23.05.2016 u/s 138 Negotiable Instruments Act, 1881 and No. 140553 dated 20.05.2016 for Rs. 49,500/- drawn on Digitally Page 1 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:07:14 +0530 Oriental Bank of Commerce, Branch Chawri Bazar, New Delhi in favour of the complainant which was returned unpaid due to the reason, "Funds Insufficient" vide cheque returning memo dated 23.05.2016 u/s 138 Negotiable Instruments Act, 1881
2. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that the Accused and the complainant have good relations with each other. Accused took a sum of Rs. 99,000/- from complainant as loan on 01.04.2016 and at the time of taking the loan the accused had issued two cheques bearing No. 140552 and 140553 both dated 20.05.2016 drawn on Oriental bank of Commerce, Branch Chawri Bazar, Delhi-110006 from his account bearing no. 00151131002897.
Complainant presented both the cheques in his bank i.e. United Bank of India, Branch Chandni Chowk, Delhi on 20.05.2016 but both the cheques were returned from the bank with the remarks "Funds Insufficient" vide cheque return memos dated 23.05.2016. Complainant informed the accused about the outcome of the cheques issued by the accused and demanded his amount, but the accused has not paid any heed to the genuine request of the complainant. Complainant issued a legal demand notice dated 26.05.2016 through his Advocate Rajesh Kumar, through Speed Post. The notice was duly served upon the Accused as per Internet Tracking Report of India Post. Despite receipt of the notice, the accused neither made the payment of the said cheques nor replied the same. Accused issued the aforesaid cheques in order to discharge his legally enforceable liability to repay the loan amount. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the complainant, praying for the accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The complainant has averred that the present NEHA Page 2 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava GOEL Digitally signed by NEHA GOEL Date: 2024.07.15 16:07:21 +0530 complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 14.10.2016 wherein the complainant has affirmed the facts stated in the instant complaint.
4. Documentary Evidence: To prove the case, the complainant has relied upon the following documents:
S. Description of documents Exhibit No. No. 1 Original cheque bearing no. 140552 dated 20.05.2016 for Ex. CW1/1
an amount of Rs. 49,500 /-, drawn on Oriental Bank of Commerce, Branch Chawri Bazar, New Delhi (Cheque in question) 2 Original cheque bearing no. 140553 dated 20.05.2016 for Ex. CW1/2 an amount of Rs. 49,500 /-, drawn on Oriental Bank of Commerce, Branch Chawri Bazar, New Delhi (Cheque in question) 3 Two receipts of United Bank of India Ex.
CW1/1A
and Ex.
CW1/1B
4 02 Original Return Memos dated 23.05.2016 Ex. CW1/3
and Ex.
CW1/4
5 Original Courier slips dated 26.05.2016 and original Ex. CW1/5
postal receipts dated 26.05.2016. colly
6 Office copy of legal demand notice dated 26.05.2016 Ex. CW1/5
Page 3 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava Digitally
signed by
NEHA
NEHA GOEL
GOEL Date:
2024.07.15
16:07:58
+0530
colly
7 Tracking Reports Ex. CW1/6
5. Summoning of the Accused: On finding of a prima-facie case against the accused, accused was summoned on 14.10.2016. Accused appeared on 16.04.2018.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the accused on 12.02.2020 to which he pleaded not guilty and claimed trial. The plea of defence of the accused was recorded where the accused had stated that "I admit my signature on the cheque in question. I have filled rest of the particulars of the cheque except the name and date on the cheque. I have not received any legal notice from the complainant. I know the complainant as he is friend of my father and resides near my shop. I have not taken any loan from the complainant. I have issued the cheque around the month of March-April 2016 for the purpose of purchasing the pacemaker for one of my customers as I own a medical shop but complainant has not furnished me the pacemakers and has misused the cheque. I have asked the complainant for return of my cheque in the year 2016 itself but the complainant has not returned the cheque. I do not have any liability. My cheque has been misused".
7. Evidence of the Complainant: Matter was put up for CE. CW1 was examined, cross examined and discharged on 08.03.2022. CE was closed on 08.03.2022 as complainant did not wish to lead any further CE. Matter was put up for recording statement of accused u/s 281/313 CrPC.
8. Statement of the Accused: Statement of the accused was recorded u/s 281/313 Cr.P.C. on 01.06.2022 wherein all the incriminating circumstances appearing in evidence against the accused were put to him and he was asked to explain the same. He stated that " I am innocent. The Digitally Page 4 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:08:05 +0530 complainant used to be my friend and used to visit my medical store. He proposed to supply to me pace maker for the purpose of commercial sale at a reduced rate. Against the supply of pace maker(s), I issued two security cheques to the complainant without mentioning the name of the payee therein. However, the complainant did not supply the pace maker as had been agreed between us. Thereafter, he misused my security cheques by filling his own name. The present complaint is a false case filed against me and I had never taken any loan from the complainant. I do not wish to say anything else." Matter was put up for DE. It is at this stage matter was received by undersigned having taken over the Court by my Ld. Predecessor.
9. Defence Evidence: An application u/s 315 CrPC was moved by accused on 12.12.2023. DW1 (Accused) was examined, cross examined and discharged on 12.12.2023. DE was closed vide separate statement of accused on 01.05.2024 as accused did not wish to lead any DE. Matter was put up for final arguments.
10. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused and perused the record.
11. Appreciation of evidence: The legal requirements of Section 138 Negotiable Instruments Act, 1881 are cumulative in nature, i.e. only when all of the following ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act.
a. The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability.
NEHA GOEL Page 5 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava Digitally signed by NEHA GOEL Date: 2024.07.15 16:08:11 +0530 b. The second ingredient of Section 138 Negotiable Instrument Act, 1881 is that the 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. Second ingredient stands satisfied on a perusal of the 02 original cheques bearing No. 140552 dated 20.05.2016 for Rs. 49,500/- drawn on Oriental Bank of Commerce, Chawri Bazar Branch, Delhi and No. 140553 dated 20.05.2016 for Rs. 49,500/- drawn on Oriental Bank of Commerce, Chawri Bazar Branch, Delhi in favour of the complainant which were returned unpaid due to the reason, "Funds Insufficient" vide cheque returning memos dated 23.05.2016. The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.
c. The third ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque 1 or that it exceeds the amount arranged to be paid from that account by agreement made with that bank. Third ingredient stands satisfied as S. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The cheque return memo on record state that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". The defence has led no evidence to 1 Expression "amount of money ...... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of NEHA that genus as held in M/s Laxmi Dyechem Vs. State of Gujarat and Others (2012 SCC OnLine SC 970). GOEL Digitally signed Page 6 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava by NEHA GOEL Date: 2024.07.15 16:08:16 +0530 controvert the same and hence, this ingredient is fulfilled as against the accused.
d. The fourth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. As regards the fourth ingredient, the complainant has stated that he has sent the legal demand notice dated 26.05.2016 to accused. The original postal receipt dated 26.05.2016 and tracking report in respect of the same are already on record. Accused has stated in notice u/s 251 CrPC that he has not received legal demand notice. Address mentioned on the notice is same as what has been provided by accused in bail bond. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555] - "8. ... It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service".
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons Page 7 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:08:23 +0530 from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. ...". (emphasis supplied).
12. In the evidence affidavit of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, original postal receipt dated 26.05.2016 has been tendered in evidence on behalf of the complainant. Further, no evidence whatsoever was led from the side of the accused to rebut the presumption of service. Therefore, the said ingredient stands fulfilled as against the accused.
13. The fifth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Fifth ingredient stands satisfied as accused has not paid the amount due under the cheque in question within the statutory period on the ground that he does not owe any liability towards the complainant, Hence, this ingredient stands fulfilled as against the accused.
14. Section 139 of the Negotiable Instruments Act 1881 provides that the court shall presume, that the holder of a cheque received the cheque for NEHA Page 8 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava GOEL Digitally signed by NEHA GOEL Date: 2024.07.15 16:08:29 +0530 the discharge, wholly or in part of any debt or other liability. Reliance is placed on Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16.
15. Section 118 of the Negotiable Instruments Act 1881 provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or 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.
16. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory.
Presumption mandated by Section 139 of the Negotiable Instruments Act, 1881 include the existence of a legally enforceable debt or liability. The presumptions u/s 139 of the Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instrument Act 1881 mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume" used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary. When an Accused has to rebut the presumption under Section 139 Negotiable Instruments Act, 1881, the standard of proof for doing so is that of "preponderance of probabilities". The Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own. Reliance is placed on Rangappa v. Sri Mohan, (2010) 11 SCC 441. Similar has been held in Kalamani Tex Vs. P. Balasubramanian, (2021) 5 SCC 283.
17. First condition pertains to the issuance of the cheque itself. It is pertinent to note that accused has stated in notice u/s 251 CrPC that cheques in question bear his signature. Further, the cheques have been drawn on the Digitally Page 9 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:08:36 +0530 account of accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with s.118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally recoverable debt or other liability against accused. Reliance is placed on Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC
35. The accused has cross examined CW1 and appeared as DW1 to rebut the presumptions raised against him.
18. In nutshell, case of the complainant is that he has given a loan of Rs.
99,000/- to accused on 01.04.2016. Cheques in question were issued at the time of taking loan. Both cheques got dishonored and accused has failed to return back the loan amount.
19. Per contra, case of accused as culled out from notice u/s 251 CrPC/statement u/s 281/313 CrPC/examination in chief u/s 315 CrPC is that accused owns a medical shop, complainant proposed to supply to him pace maker for the purpose of commercial sale at a reduced rate and accused wanted to purchase pacemaker for one of his customers and for that reason cheques in question were issued around the month of March- April 2016 without filling the name and date on the cheques in question. He has not taken any loan from the complainant and complainant failed to provide the pacemakers and misused the cheques.
20. It is the case of accused that no loan has been taken from the complainant. Accused has tried to prove his case by multi-pronged arguments made on his behalf by his Counsel. Ld. Counsel for accused has argued that it is unbelievable that accused would issue two cheques for same amount for return of single loan of Rs. 99,000/- on same day as he could have issued one cheque for whole amount also if indeed the alleged loan was taken by accused from the complainant. It has been further argued that complainant has not filed any written documentation qua the loan in question and the witness in front of whom the loan was Digitally Page 10 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:08:43 +0530 allegedly given, namely Shiv Kumar Sharma, as has been deposed by the complainant in his cross-examination, has not been produced as a witness. It has been further argued that the handwriting and ink on the cheques in question is different and it was decided between complainant and accused that the name of payee is to be kept blank as the name of the vendor from whom the pacemakers were supposed to be procured by complainant was supposed to be filled up in the name of payee and accused had only filled amount in words and figures on the cheques in question. It has been further argued that accused has purchased pacemakers for Ravi Kumar Gupta from complainant as complainant had told him that he will arrange the pacemakers.
21. Per contra, Ld. Counsel for complainant has argued that the story of accused cannot be believed as accused has failed to produce Ravi Kumar Gupta as witness and accused has himself deposed in cross examination that complainant is not associated with any medical work. It has been further argued that no complaint has been filed by accused against complainant for misuse of cheques in question.
22. There is force in the submissions made by Ld. Counsel for accused as complainant has deposed in his cross examination that accused had a medical store in Balli Maran and complainant used to sit there occasionally. Even if complainant was not associated with medical work but as deposed by accused in cross examination that uncle of complainant who was present in the Court on date of cross examination of accused was into some medical work. Therefore, it is plausible that complainant could have agreed with accused to procure pacemakers for him. Furthermore, complainant has failed to produce any document to show that friendly loan was given by him to accused. He deposed in his cross examination that no document was executed between him and accused qua the loan in question and one Shiv Kumar Sharma was present at the NEHA Page 11 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava GOEL Digitally signed by NEHA GOEL Date: 2024.07.15 16:08:50 +0530 time of taking loan by the accused but this fact was not mentioned in the complaint. Furthermore, Shiv Kumar Sharma has not been produced as a witness by the complainant. Perusal of record reveals that opportunity was sought from the Court to make Ravi Kumar Gupta appear as DW2 and it was submitted on NDOH that DE be closed as his appearance could not be secured. Ld. Counsel for accused submitted that Ravi Kumar Gupta had refused to appear as a witness owing to his old age. Therefore, it cannot be said that no efforts were made by accused to make Ravi Kumar Gupta depose as a witness. Also, it is not necessary that counter complaint needs to be filed everytime by accused to show his bonafides as accused can always choose to just defend the case filed against him on merits.
23. The upshot of the above discussion is that the said ingredient stands unfulfilled as against the accused. The accused has managed to rebut the presumption raised against him by showing that the case of the complainant itself, is improbable, when looked at from the standard of a reasonable man and has, therefore, established his defence on preponderance of probabilities in view of the above discussion.
24. Decision: As all the ingredients of the offence are not cumulatively satisfied against the accused, the accused Kapil Srivastava is hereby acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
ANNOUNCED IN OPEN COURT ON 15.07.2024. Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.07.15 16:08:58 +0530 (NEHA GOEL) JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-02, (CENTRAL) TIS HAZARI COURTS/ DELHI Page 12 of 12 CC No. 537519/2016 Manish Sharma Vs. Kapil Srivastava