Delhi District Court
Cc No.69/12 Jai Krishan Finlease (P) Ltd vs . Ashok Kapoor Page No. 1 Of Pages 23 on 4 May, 2013
CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 1 of Pages 23
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 69/12
Unique ID No. 02402R0228192012
PS. Farsh Bazar
M/s Jai Krishan Finlease (P) Ltd
through its Managing Director
Sh. Sanjeev Kumar,
S/o Sh. P.L. Manocha,
28/1, First Floor, Gali No. 17,
Vishwas Nagar, Delhi32 ......... Complainant.
Versus
Sh. Ashok Kapoor,
S/o Late Sh. Daulat Ram Kapoor,
R/o 2054, Sector28,
Faridabad (Haryana) ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 24.07.2012
Plea of Accused : Not guilty
Complaint filed on : 14.08.2012
Final Arguments heard & Concluded on : 09.04.2013
Date of decision of the case : 04.05.2013
Final order : Conviction
CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 2 of Pages 23
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Jai Krishan Finlease (P) Ltd through its Managing Director Sh. Sanjeev Kumar, against the accused Ashok Kapoor.
2. The facts in brief necessary for the disposal of the present case are that, the complainant is a company duly incorporated under the Indian Companies Act. The accused borrowed a loan of Rs.5,00,000/ from the complainant @ 2% per month for a period of thirty five months only. The sum of Rs.5,00,000/ was given by the complainant to the accused vide two account payee cheques bearing no. 630186 dated 23.06.2009 of Rs.3,00,000/ and bearing no. 630187 dated 26.06.2009 Rs.2,00,000/. At the time of taking the loan the accused executed two demand promissory notes and receipts one for the cheque bearing no. 630186 and another for cheque bearing no. 630187. The accused in discharge of the said loan liability of Rs.5,00,000/ alongwith interest issued a cheque bearing no. 510657 dated 25.05.2012 for the sum of Rs. 8,50,000/ drawn on Bank of Baroda, Cannaught Circus branch, Delhi to the complainant. After the expiry of agreed period, the complainant demanded repayment of aforesaid loan amount along with interest from the accused and the accused suggested the complainant to encash the aforesaid cheque bearing no. 510657 dated 25.05.2012 for CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 3 of Pages 23 the sum of Rs. 8,50,000/ but on presentation the said cheque was returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memo dated 22.06.2012. Thereafter a legal notice was sent to the accused on 26.06.2012 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 18.08.2012 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a notice U/s 251 Cr.P.C. Dated 10.10.2012 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited Minutes of Meeting dated 26.07.2012 as Ex. CW1/1, Certificate of Incorporation as Ex. CW1/2, Demand promissory notes dated 23.06.2009 & 26.06.2009 as Ex. CW1/3 & Ex. CW1/4 respectively, original cheque bearing No.510657 as Ex. CW1/5, the cheque returning memo is Ex. CW1/6, the legal notice of demand dated 26.06.2012 is exhibited as Ex. CW1/7, The original receipts of registered post are Ex. CW1/8 & Ex. CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 4 of Pages 23 CW1/9 & Receipt of courier are Ex. CW1/10 & Ex. CW1/11, returned AD as Ex. CW1/12, Reply sent by the accused to the legal notice of the complainant as Ex. CW1/13. Thereafter, the complainant evidence was closed at request.
5. After that on 21.12.2012 the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused stated that he had borrowed a loan of Rs. 5,00,000/ by way of two installments through account payee cheques on interest basis @ 2 % per month for the period of 35 months from the complainant company but he is not confirmed about the bearing numbers of those cheques. It is further submitted by him that the cheque in question and two demand promissory notes were given by him as formality at the request of Mr. Sanjeev Kumar in totally blank condition. It is further submitted by him that he had repaid the entire loan taken from the complainant company in second week of July, 2011 and on a few occasions he had requested Mr. Sanjeev Kumar to give the receipt of the installments paid by him but the complainant told him that there is no need of any receipt as the matter is between them. He believed in the words of the complainant as they had good relations. It is submitted by the accused that he had never asked the complainant to present the cheque for encashment. Even at the time of payment of last installment Mr. Sanjeev Kumar did not issued any receipt even on his request. He had CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 5 of Pages 23 requested him on number of times to return his blank signed promissory notes and cheque but he never returned the same and postponed the same on one pretext to another. Thereafter he sent a letter to the complainant company to issue a letter which state that now he is not liable to pay anything to the complainant company. He had also requested for return of his cheque and promissory notes by that letter dated 23.07.2011. It is further submitted by him that the complainant have misused his promissory notes and cheque to file this false case against him. He never asked him to present the cheque infact he had got the payment of that cheque stopped when the complainant did not returned the same. He had got the payment stopped much prior to their presentation. He had also apprised the complainant that he had got the payment of the cheque stopped. He had also filed a civil case for cancellation of his promissory notes and cheque against Jai Kishan Finlease before Ld. Civil Judge Sh. Saurabh Kulshrestha, Karkardooma Courts, that case is still pending. After filling of that case as counter blast the complainant has filed this case against him. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1 and reiterated his defence as stated in statement U/s 313 Cr. PC. He also exhibited letter sent by him to Mr. Sanjeev Manocha by way of speed post as Ex. DW1/1 and its original postal receipt as Ex. DW1/2, letter sent by the accused to his bank to stop the payment of his blank signed cheque given by him to the CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 6 of Pages 23 complainant company as Ex. DW1/3, rectified letter dated 29.08.2012 sent by the accused by way of speed post to his bank to stop the payment of his blank signed cheque given by him to the complainant company as Ex. DW1/4 and its original postal receipt as Ex. DW1/5, certified copy of Civil case filed by the accused for cancellation of cheque given by him to the complainant before he Court of Sh. Saurabh Kulshrastha, Civil Judge, Karkardooma Courts as Ex. DW1/6. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the 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, CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 7 of Pages 23 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.
8. Prior to dealing with ingredients of the section 138 of Negotiable Instruments Act, let the technical defence of the accused i.e. the loan in question was given by the complainant being a money lender but without having a money lending licence U/s 3 of Punjab Registration of Money Lending Act. Hence, case U/s 138 NI Act would not lie for a cheque issued allegedly to repay that loan, be decided first.
9. It is admitted fact that complainant company is in the business of money lending and the loan was given to the present accused under that business only. The Punjab Money Lending Act is extended to the Union territory of Delhi vide Notification No.149/39 dated 11.09.1940 and came into force on 01.03.1942 vide Notification No. F4(58)/41 General dated 11.02.1942. The website of Delhi Government (www.law.delhigovt.nic.in/act.html) also shows that this act is applicable to Delhi.
Recently in Virender Singh v. Deepak Bhatia dated CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 8 of Pages 23 08.04.2013 while considering the appeal in respect of 23 cases which were dismissed by the Ld. MM preliminary on the ground that the petitioner was in the business of advancing the loan; he did not possess any money lending licence and thus the complaint was barred Under Section 3 of Punjab Money Lenders Act, Hon'ble High Court of Delhi has held as under:
5. To analyse whether the complaints under Section 138 were barred under the provisions of the Act, it will be apposite to extract the provisions of Section 3 of the Act of 1938, which reads as under: "3. Suits and applications by moneylenders barred, unless money lender is registered and licensed. Notwithstanding anything contained in any other enactment for the time being in force, a suit by a moneylender for the recovery of a loan, or an application by a moneylender for the execution of a decree relating to a loan, shall after the commencement of this act, be dismissed, unless the moneylender (a) at the time of the institution of the suit or presentation of the application for execution; or
(b) at the time of decreeing the suit or deciding the application for execution
(i) is registered; and
(ii) holds a valid licence, in such form and manner as may be prescribed; or
(iii) holds a certificate from a Commissioner granted under section 11, specifying the loan in respect of which CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 9 of Pages 23 the suit is instituted, or the decree in respect of which the application for execution is presented; or
(iv) if he is not a registered and licensed moneylender, satisfies the Court that he has applied to the Collector to be registered and licensed and that such application is pending; provided that in such a case, the suit or application shall not be finally disposed of until the application of the moneylender for registration and grant of license pending before the Collector is finally disposed of."
6. Thus, Section 3 of the Act of 1938 starts with a non obstante clause and makes the filing of any Suit or any Application for recovery of loan or execution of a decree relating to a loan by a money lender to be not maintainable unless the money lender is registered under the Act and possessed a licence for the same.
7. The loan as defined in Section 2(8) of the Act of 1938 specifically excludes an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note.
The instant cases relate to an advance made by the Petitioner to the Respondent on the basis of the cheque which admittedly is a negotiable instrument. Thus, the bar of Section 3 of the Act of 1938 is not attracted to a loan given on the basis of a negotiable instrument, like a cheque. I am supported in this view by a judgment of the CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 10 of Pages 23 Supreme Court in Gajanan & Ors. v. Seth Brindaban, 1971(1) SCR 657. Thus, the learned MM fell into error in dismissing the complaints and acquitting the Respondent solely on the ground that the complaint was barred under the provisions of the Act of 1938. Even in the case in hand the loan was given by the complainant to the accused on the basis of the cheque in question along with promissory notes. In such situation when the loan was advanced on the basis of a cheque as well, hence, the bar of Punjab Registration of Money Lending Act would not apply. Let us now discuss the ingredient of Section 138 Negotiable Instrument Act to see whether accused is liable U/s 138 NI Act or not.
WHETHER THE CHEQUE WAS ISSUED OR NOT:
10. CW1 has stated in his examine in chief that cheque in question was issued by the accused. In his statement under section 313 Cr.P.C and 315 Cr. PC, it was accepted by the accused that the cheque in question bears his signature.
However it is submitted by the accused that the cheque in question was given in blank signed condition as security to the complainant and he has repaid the entire loan amount to the complainant in installments. Whether the cheque was given as security or whether the loan amount was paid or not are to be discussed in the next head. The legal position in respect to the blank signed cheques is as under:
CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 11 of Pages 23
11. In Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the name of payee 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.
12. It was further observed in the aforesaid judgment that 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. "
13. In Ravi Chopra v. State & another (2008 (2) LRC 118 del) it was held by the 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 implidely or expressly to the said cheque being filed by the payee at a subsequent point of time".
14. Similarly it was held by the Kerala High Court in lillykutty v. lawrence (2004 (1) JCC (NI) 14), that there is no rule in banking business that payee's name and the amount should be written by drawer himself. Further the burden is on the accused to establish that the date, amount and payee's name are written by somebody else without the knowledge and consent of the drawer. Further in Vijender Singh V. Eicher Motors Ltd. & Anr decided on 05.05.2011 it was held by High Court of Delhi that a person issuing a blank cheque is supposed to understand the consequences of doing so. He can not escape his liability only CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 12 of Pages 23 on the ground that blank cheques had been issued.
15. From the above stated cases it is clear that in a case where cheque is handed over without filling the name of the payee or other particulars, it is upon accused to prove by positive evidence that he/she did not give implied or express consent to the complainant to fill in the name of the payee and the other particulars. However in the present case no such cogent evidence have been adduced by the accused.
16. In view of the aforesaid discussion and the evidence on record it stands proved that the cheque in question was issued by the accused.
WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
17. It is submitted by the CW1 that the accused borrowed a loan of Rs.5,00,000/ from the complainant @ 2% per month for a period of thirty five months only. The sum of Rs.5,00,000/ was given by the complainant to the accused vide two account payee cheques bearing no. 630186 dated 23.06.2009 of Rs. 3,00,000/ and bearing no. 630187 dated 26.06.2009 Rs. 2,00,000/. At the time of taking the loan the accused executed two demand promissory notes and receipts one for the cheque bearing no. 630186 and another for cheque bearing no. 630187. The accused in discharge of the said loan liability of Rs. 5,00,000/ alongwith interest issued a cheque bearing no. 510657 dated 25.05.2012 for the sum of Rs. 8,50,000/ drawn CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 13 of Pages 23 on Bank of Baroda, Cannaught Circus branch, Delhi to the complainant.
18. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
19. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
20. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act.
21. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 14 of Pages 23 this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
22. Therefore after the establishment of the fact that the cheque was issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence. In the present matter the accused accepted that he took the loan of Rs.5,00,000/ from the complainant @ interest rate of 2% per month. However, it is further submitted by him that he duly repaid the loan by second week of July 2011 and thereafter had written a letter dated 23.07.2011 to the complainant to return his blank signed security cheque and promissory note despite that the complainant did not return his CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 15 of Pages 23 security cheque rather misused the same for filling the present case.
Various contentions of the complainant and the defences of the accused are discussed as under:
i) The accused has accepted the grant of loan of Rs.
5,00,000/ @ rate of interest 2% per month.
ii) Though it is submitted by the accused that he duly repaid the loan amount in installments but he failed to tell the exact amount of the installments. It is submitted by him that there was no fixed amount of the installments and he used to pay installments as per his convenience, which is unacceptable plea considering that complainant is a financial institution. Further, he failed to file on record any document to show that he used to make payment of the installments as it is submitted by him that no receipt was issued by the complainant to him. Further he could not show from which account he withdraw the money to pay the installments. Infact it is submitted by him that he has no idea about his annual income in the year 2009, 2010 or 2011. It is also submitted by him that he was income tax payee only prior to year 2009. thus he has not brought before the court any document to show his income during the period in which he allegedly repaid the loan. He could not give the complete record as to, in how many installment, of how much amount each was paid by him, on which date to pay back the loan. Further it is not explained as to why the complainant although a graduate and a businessman did not insisted on issuance of receipts and CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 16 of Pages 23 kept on paying the installments one after other. On the basis of all these circumstances taken together this Court considered the non existence of the fact of paying installments so probable that a prudent men ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Thus the fact of payment of installment has been disproved.
iii) It is claimed by the accused that after making payments of all the installments by second week of July 2011 he had written a letter dated 23.07.2011(Ex. DW1/1 sent by postal receipt Ex. DW1/2) to the complainant requesting return of his cheque and promissory notes. This letter does not inspire confidence due to the following reasons:
a) The accused could not tell the post office from where he had posted this letter to the complainant. Further the time of sending letter is 21:08. It is submitted by Ld. Counsel for the complainant that facilities of speed post are not available so late in the night.
b) In the reply of the legal notice Ex. CW1/13 sent by the accused the accused had not mentioned about the above stated letter dated 23.07.2011, which raises doubt because if the accused had sent such letter he must have referred to that letter in his reply to the legal notice.
c) The alleged letter is dated 23.07.2011 wherein the accused had requested the complainant to return his blank signed cheque and promissory notes within 03 days of receipt of the letter. However, even after sending alleged letter and CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 17 of Pages 23 admittedly not receiving back his cheque and promissory notes no action was taken by the accused and it was only on 19.04.2012 (eight months after the sending of alleged letter dated
23.07.2011) that an alleged intimation was sent by the accused to his banker to stop payment of certain cheques. Had the accused been a prudent person and had sent the letter dated 23.07.2011 with the apprehension that his cheque may be misused then he should have as a prudent person got the payment of the cheque stopped immediately but he did not do so and waited for another eight months.
d) The accused has not examined any person from the postal department to prove if the letter dated 23.07.2011 was actually sent by him to the complainant or not.
Thus the accused has failed to prove that he had sent any such letter dated 23.07.2011 to the complainant and the letter appears to be a fabricated document.
iv) Admittedly the cheque in question was dishonored due to the reason insufficiency of funds vide memo dated 22.06.2012 and the same was not dishonored due to the reason payment stopped by the drawer. Therefore the alleged intimation dated 19.04.2012 sent by the accused to his banker to stop payment of all the cheques except cheque bearing no. 522101 to 522120 does not inspire confidence as if any such intimation was given to the bank in due time then the banker would not have dishonored the cheque due to insufficiency of funds. Further a letter of correction in the above stated letter was also sent by the CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 18 of Pages 23 accused to his banker on 29.08.2012 (it is to be noted that admittedly the accused had received the legal notice from the complainant on 07.07.2012), in that correction letter it was written by the accused that the correct cheque book number was 592101 to 592120 instead of 522101 to 522120 as mentioned by him in the earlier letter dated 19.04.2012. All these circumstances shows that the letter dated 19.04.2012 is a fabricated one as the accused has not called any person from his bank to prove that this letter was actually received by the bank on 19.04.2012. further it is not explained that how after four months (i.e. only after receiving the legal notice) the accused realized that he had wrongly written the cheques numbers in his letter. Further when by 29.08.2012 accused had came to know by legal notice that his cheque has been dishonored by his banker due to the reason insufficiency of funds while he had given a blanket order to stop payment of all the cheques except bearing no. 522101 to 522120 (though thereafter the numbers were corrected as 592101 to 592120), then why he had not taken any action against the bank. All these circumstances are showing that the accused is playing smart and has manufactured false documents after receiving the legal notice from the complainant. Thus the vague letter dated 19.04.2012 is not at all reliable.
v) The Ld. Defence Counsel had raised a question to the complainant as to how he calculated the cheque amount at the time of granting the loan to which the complainant simply CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 19 of Pages 23 answered that the loan of Rs.5,00,00/ was for a period of 35 months @ 2% interest per month, thus per month interest comes to Rs.10,000/ which is multiplied by 35 months became Rs. 3,50,000/ and by adding Rs.5,00,000/ + Rs.3,50,000/ the cheque amount i.e. Rs.8,50,000/ was reached. It is further argued by Ld. Defence Counsel that the loan was to be paid within the period of 35 months by way of installments and was not supposed to be paid after 35 months. We have already discussed that no installment amount was fixed, the complainant could not give any record of payment of the installments rather accused try to hide his actual income during the period in which he allegedly repaid the loan in installments, hence, it can not be believed that the loan was to be repaid by way of installments within 35 months rather the version of the complainant appears to be true.
vi) It is claimed by Ld. Defence counsel that the complainant has filed the present case as a counter blast to a Civil case filed by the accused against the complainant. However from the perusal of file it is clear that the legal notice was served upon the accused on 07.07.2012 and in counter blast of the same he filed a Civil case on 10.09.2012 while the present complaint was already filed on 14.08.2012 (that is within the prescribed time after arising of the cause of action).
Thus from the above stated discussion following points have been crystallized that accused had taken a loan of Rs. 5,00,000/ @ 2% per annum. The loan was to be paid on CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 20 of Pages 23 completion of 35 months, thus interest comes to be Rs. 3,50,000/. The accused had not repaid the loan. He has failed to prove that he has sent any letter to the complainant for the return of his cheque. The accused has failed to prove that he had got the payment of the cheque stopped before time. Further the Civil case filed by the accused was only as counter blast to the receipt of legal notice from the complainant. Thus the accused has failed to rebut the statutory presumption arise in favour of the complainant as per Section 118 & 139 of NI Act. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favor of the complainant and the same can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. A fact is said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.
23. The counsel for the accused cited the decision of the Supreme court in his favour titled as Krishna Janardhan Bhat v. Dattataraya G. Hegde (2008) 4 SCC 54, however the ratio of this case that existence of legally recoverable debt is not a matter of presumption under section 139 of the NI Act, has been overruled by the Hon'ble Supreme Court itself in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench Judgement) where in it was held:
CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 21 of Pages 23 We are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.
24. Thus from the above stated discussion it is clear that the accused has failed to rebut the presumptions U/s 118 (b) and 139 of Negotiable Instruments Act.
25. Considering the entire evidence on record, it stands duly proved that the cheque in question which is CW1/5 was issued and drawn in discharge of legal liability of the accused and for consideration.
WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY AND WAS DISHONORED DUE TO THE REASON INSUFFICIENCY OF FUNDS:
26. Perusal of the record reveals that the cheque in question which is Ex. CW1/5 is dated 25.05.2012, was got dishonoured due to the reason insufficient funds vide cheque returning memo which is Ex. CW1/6 dated 22.06.2012 (proved as per Section 146 of NI Act which clearly shows that the cheque has been presented and dishonored within period of its validity i.e. within three months from the date of the cheque and was dishonored due the reason insufficiency of funds. The accused has not CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 22 of Pages 23 objected to or denied these facts nor he brought any evidence to prove otherwise.
SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
27. CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 26.06.2012 which is Ex. CW1/7 and it was sent to the accused on the same day (within 30 days of knowledge of dishonour of cheque) vide Registered Post and UPC which are Ex. CW1/8, Ex. CW1/9 & Ex. CW1/10. The the accused accepted the receipt of legal notice and has duly replied the same, reply is Ex.
CW1/13.
THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE:
28. CW1 has deposed in his examination in chief that despite service of legal notice of demand accused has failed to pay the cheque amount to the complainant within 15 days. Accused has submitted that he duly replied the legal notice and was not under liability to pay the cheque amount. Therefore this fact also stands proved.
29. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of Section 138 of Negotiable Instruments Act have CC No.69/12 JAI KRISHAN FINLEASE (P) LTD Vs. ASHOK KAPOOR page no. 23 of Pages 23 been duly proved on record. Accordingly, accused Sh. Ashok Kapoor, S/o Late Sh. Daulat Ram Kapoor, R/o 2054, Sector28, Faridabad (Haryana) stands convicted of the offence U/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the open court today i.e. 04.05.2013 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:04.05.2013 Containing 23 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:04.05.2013