Delhi District Court
Deepak Rathore vs Vishnu Chand Sharma on 21 December, 2018
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 6695/2016
Deepak Rathore
S/o Sh. Krishan
R/o E-28, Krishan Vihar,
Delhi ............Complainant
Versus
Vishnu Chand Sharma
C/o Kanta Sharma
H.No. B-319, Peepal Wali Gali,
Hari Nagar, Ghanta Ghar,
Delhi-110007
Also at : Ortho
Ward No. 4, 4th Floor,
DDU Hospital, Hari Nagar,
New Delhi .............Accused
JUDGMENT
(1) Name of the complainant, : Deepak Rathore
parentage and address S/o Sh. Krishan
R/o E-28, Krishan Vihar,
Delhi
(2) Name of accused, : Vishnu Chand Sharma
parentage and address C/o Kanta Sharma
H.No. B-319, Peepal Wali Gali,
Hari Nagar, Ghanta Ghar,
Delhi-110007
Also at : Ortho
Ward No. 4, 4th Floor,
DDU Hospital, Hari Nagar,
New Delhi
(3) Offence complained of or
proved : 138 N.I. Act
Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 1
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 15.03.2012
(6) Date of conclusion of arguments : 03.12.2018
(7) Date of Final Order : 21.12.2018
(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 approached the complainant and requested him to advance friendly loan of Rs.1,00,000/- for two months. The complainant advanced the said amount to the accused and he, in discharge of legal liability, issued a post dated cheque bearing no. 020184 dated 24.09.2011 for a sum of Rs.1,00,000/- drawn on Syndicate Bank, Tilak Nagar, New Delhi- 110018. On presentation, the aforesaid cheque got dishonoured vide returning memo dated 21.01.2012 for the reasons "funds insufficient". Thereafter, the complainant issued a legal notice dated 31.01.2012 through registered A.D., however, the accused neither sent any reply to the same nor paid any amount to the complainant. Thereafter, complainant filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record a cheque bearing no. 020184 dated 24.09.2011 for a sum of Rs.1,00,000/- drawn on Syndicate Bank, Tilak Nagar, New Delhi- 110018 as Ex. CW-1/1, cheque returning memo dated 21.01.2012 as Ex. CW-1/2, legal notice dated 31.01.2012 as Ex. CW-1/3, postal receipts as Ex. CW-1/4 & Ex. CW-1/5, A.D. Card as Ex. CW-1/6 & returned envelope as Ex. CW-1/7.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 19.07.2012 to which he pleaded not guilty and claimed trial. The Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 2 accused took the defence that he has not issued the cheque in question to the complainant. He alleged that he has misplaced his cheque book and he lodged a complaint in PS Hari Nagar regarding the same. He denied his liability towards the complainant. He denied receiving of legal notice. He also alleged that he does not even know the complainant.
5. Thereafter, the complainant has examined himself as CW-1. During cross-examination, the complainant stated that he knows the accused since January 2011. He also stated that in the month of July 2011, he gave Rs.1,00,000/- in cash to the accused. He also stated that he was earning Rs.5,00,000/- to Rs.6,00,000/- annually from his business of cake and jelly. He admitted that he has not filed income tax returns. He could not recall house number of the accused. He also stated that he has never gone to house of the accused. He was not aware of name of wife of the accused and number of children of the accused. He admitted that the notice Ex. CW-1/3 was received by Smt. Kanta Sharma who was the landlord of the accused. He also stated that he arranged loan amount from his friends namely Sh. Suresh Bhardwaj and Sh. Satish Singh Tomar. He denied the suggestion that the accused did not receive legal notice. He admitted that on 11.01.2012, the accused has lodged a complaint in PS Hari Nagar regarding his missing cheque book. He denied the suggestion that the accused has not taken Rs.1,00,000/- from him. He denied the suggestion that he has misused the cheque in question and it was never given to him by the accused.
CW-2 Sh. Satish Kumar Singh deposed that in the month of July 2011, he gave Rs.35,000/- in cash to the complainant. During cross-examination, he stated that there is no document to show that the said amount was given to the complainant. He also stated that the complainant has not returned the amount and he has not taken any legal action against the complainant.
6. On 09.01.2018, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him. The accused preferred to lead defence evidence. The accused as DW-1 deposed that he met the complainant for the first time in the court after filing of the case. He also stated that he has lodged a police complaint regarding his lost cheque book consisting of cheque in question. He placed on record copy of the complaint Mark DW/A. He also stated that he has not received legal notice Ex. CW-1/3. He also stated that he has not borrowed any amount from the complainant. He admitted his signatures on the cheque in question but denied having filled in contents therein. He also stated that he was never in need of money from any person as he has been working in DDU Hospital and earning around Rs.1,00,000/- per month. He denied his Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 3 liability towards the complainant and alleged that the complainant has filed a false case against him.
7. DW-2 Sh. Surender Kumar testified to the fact that he knows the accused for the last 15 years. He also stated that the accused was earning around Rs.40,000/- to Rs.50,000/- per month when he came in contact with him. He also alleged that he never heard of any person with the name of Deepak Rathore from the accused. He also stated he accompanied the accused to PS Hari Nagar where the complaint regarding lost cheque book was lodged. He also stated that he has borrowed money from the accused but the accused has not borrowed any amount from him. The opportunity to cross-examine the witness was not given to the complainant as on 13.11.2018, no one had appeared on behalf of complainant.
8. Thereafter, final arguments were addressed on behalf of accused.
9. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 4 the present case; firstly, in regard to the passing of consideration as contained in Section 118
(a) 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 of the N.I Act provides : "Presumptions 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, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "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".
12. For the offence under Section 138 of the 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 v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
14. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence.
Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 5
15. In the present case, the accused has admitted that the cheque in question bears his signatures. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,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."
16. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was not given in discharge of any liability is not sufficient to rebut the presumption of law.
17. The accused has taken the defence that the complainant is a stranger to him and he has not borrowed any amount from him. He also alleged that his cheque book comprising cheque in question was misplaced by him and on 11.01.2012, he lodged a police complaint Mark DW/A regarding the same. Sh. Surender (DW-2) corroborated the testimony of the accused. Though the complainant has not controverted the stand of the accused(DW-1) and his witness (DW-2) by cross-examining them, this court is of the considered view that in the absence of any cogent evidence, the testimony of DW-1 & DW-2 can not be accepted as gospel truth. The accused has placed on record copy of his complaint Mark DW/A regarding his lost cheque book. A bare perusal Mark DW/A would show that the accused has not mentioned the number of lost cheques in the complaint. He has also not stated anywhere number of cheque books issued by the bank at that time. The accused has not mentioned number of cheque leaves which were there in the cheque book when it was lost. He has also not given the details as to when and where the cheque book was misplaced by him. He has also not explained as to why he remained silent when the complainant has misused his lost cheque. It is pertinent to note that the reason for dishonour is funds insufficient and thus, it shows that there is no intimation to the bank to stop the payment of cheque in question. The accused has not given any explanation as to why he has not issued stop payment instructions to the bank. The complaint Mark DW/A is a vague complaint and thus, the defence of the accused that his cheque in question was lost does not inspire confidence of the court. Accused has cross-examined the complainant but nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unrebutted. No effective defence has been put forth by the accused.
Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 6
18. The accused has also taken the defence that he has not received the legal notice. During the trial, accused has never challenged the correctness of his address. He merely stated that it was not delivered to him. Personal delivery of notice is not a precondition for launching prosecution under Section 138 of the Act. In such cases, sending of notice at the correct address is sufficient. It is not necessary that the notice must be received by the drawer of the cheque. The accused challenged the fact of non receipt of notice, however, he did not bring any cogent evidence showing non delivery of the same. The legal notice having been dispatched by Registered Post, there arose a presumption of due service as per Section 27 of the General Clauses Act, 18971 and Section 114 of the Indian Evidence Act, 1872 2 and now it was incumbent on the accused to lead evidence to prove that the same was not served on him. However, no evidence has been led to rebut the presumption of deemed service. In such circumstances, the legal notice can be presumed to have been served.
Reliance can be placed upon D. Vinod Shivapa v. Nanda Belliappa, 2006 (6) SCC 456, wherein it was held that when a notice is sent by the registered post and is returned with the postal endorsement 'refused' or 'unclaimed' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is as question of fact to be decided on the basis of evidence. In the case of C.C. Alavi Haji v. Palapetty Muhammed & Anr. 2007 (2) JCC (NI) 225, it was held that any drawer who claims that he did not receive the notice sent by post, can, within fifteen days of receipt of summons from the Court for complaint filed under Section 138 of the Act, make payment of cheque amount and makes submission to this effect before the Court and accordingly, the complaint is liable to be rejected. Where no payment is made under the above circumstances, such person can not contend that there was no proper service of notice as required under Section 138 of the Act, by ignoring statutory presumption to the contrary under Section 27 of The General Clauses Act and Section 114 of The Evidence Act. In view of the said interpretation, deemed service is to be accepted by the Court unless it is rebutted by leading cogent evidence.
19. It was argued by Counsel for the accused that the complainant has failed to prove 1 Section 27 : Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
2 Section 114 : The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particulars case.
Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 7 sources of funds to advance loan of such a huge amount. It was also argued that the complainant has not placed on record any agreement or receipt to show that the sum of Rs.1,00,000/- was advanced to the accused. It was also argued that the complainant has not disclosed the loan given to the accused in his ITRs. It was also argued by him that the cheque in question pertains to September 2011, however, the complainant has presented the same in January 2012 and no explanation has been given by the complainant as to why he presented the cheque in question after three-four months and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. Failure to disclose the loan in the ITRs and non filing of documents are not fatal to the case of the complainant. For this, reliance be placed on one judgment Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that "para 24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.". Thus, there is no force in the submission of Counsel for the accused.
20. In view of the above, this court is of the considered opinion that the accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. The complainant has led cogent evidence to prove his case. Therefore, complainant has successfully proved his case beyond reasonable doubt.
21. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
22. Let the accused be heard on quantum of sentence.
23. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA RAJPOOTPRIYANKA Date:
RAJPOOT 2018.12.21
18:19:19
+0530
ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT)
TODAY i.e. 21st DECEMBER 2018 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Deepak Rathore v. Vishnu Chand Sharma CC No. 6695/2016 Page no. 8