Delhi District Court
Pawan Kumar vs Karpuri Thakur on 22 November, 2018
IN THE COURT OF MS. PARIDHI GUPTA
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
New CC No.: 12590/2017
Pawan Kumar versus Karpuri Thakur
Under Section: 138, The Negotiable Instruments Act, 1881
1. Name & address of the complainant : Pawan Kumar,
S/o Sh. Vijay Bhan,
R/o Flat no. 299,
DDA Flats,
Phase I, Pocket I,
Sector 23, Dwarka,
New Delhi.
2. Name & address of the accused : Karpuri Thakur,
S/o Sh. Makeshwar
Thakur,
R/o RZA 111,
BlockA1,
Dabri Extension, East,
Main Nasirpur Road,
New Delhi.
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final order : Convicted.
6. Date of such order : 22.11.2018.
New CC No.: 12590/2017
Pawan Kumar versus Karpuri Thakur 17/17
7. Date of Institution of case : 29.06.2017.
8. Date of decision of the case : 22.11.2018.
JUDGEMENT
1. Vide this judgement, I shall dispose of the aforementioned complaint case filed by the complainant, Pawan Kumar (hereinafter referred to as the 'complainant') against accused, Karpuri Thakur (hereinafter referred to as the 'accused').
2. Factual Matrix: The complainant's case, bereft of unnecessary details, is that the accused approached the complainant for advancement of a friendly loan of Rs. 2,00,000/ in the last week of September 2016. Considering the relations, the complainant advanced the said loan to the accused in cash on 23.10.2016. The accused promised to repay the said loan within six months.
3. To discharge the liability, the accused tendered one cheque on 23.05.2017 amounting to Rs. 2,00,000/ bearing number 025976 drawn on ICICI Bank, D70, Dabri Palam Road, Mahavir Enclave, New Delhi 110045 (hereinafter referred to as the 'cheque in question') in favour of the complainant with the assurance that the same will be honoured. Upon presentation whereof, however, the same got dishonoured and was returned to the complainant vide return memo dated 26.05.2017 with the remarks "Funds Insufficient". The complainant thereafter, sent a legal demand notice dated 03.06.2017 to the accused calling upon him to repay the loan amount within fifteen days of the New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 receipt thereof. The complainant has claimed that the said legal notice was duly served at the correct address of the accused through speed post.
4. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 29.06.2017.
5. The complainant has averred that the complaint is within the period of limitation as is prescribed under section 138 read with section 142 of The Negotiable Instruments Act, 1881 and the same falls within the territorial limits of this Court; thus, being tenable at law.
6. Prayed for: As relief, the complainant has sought that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881 and that the he be adequately compensated.
7. Presummoning evidence: To prove his case prima facie, the complainant led the presummoning evidence under section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/1 wherein the complainant avouched the same facts as are averred in the complaint.
8. Documentary evidence: To pillar and reinforce the above claims, the complainant has filed the original cheque in question which is Ex. CW1/A while the cheque return memo in respect of the cheque in question is Ex. CW 1/B. The legal demand notice sent to the accused by the complainant is Ex. CW New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 1/C and the postal receipts qua the same are Ex. CW1/D (colly). Lastly, the internet generated tracking reports are Ex. CW1/E and Ex. CW1/F.
9. Summoning of accused and chain of subsequent events: The court was summoned the accused after hearing the arguments at the stage of pre summoning vide order dated 30.06.2017 and the accused entered appearance in the present case on 28.02.2018. He was admitted to bail vide the same order.
10. Notice under section 251 Cr.P.C. was framed against the accused pursuant to arguments being advanced on the point of consideration thereof by the court on 28.02.2018. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
11. Plea of the accused: The accused pleaded not guilty and claimed trial. He stated in his defence that his friend namely, Basu Yadav had taken as loan of Rs. 50,000/ from the complainant in the year 2016 and that he stood as a guarantor for his friend. He alleged that the complainant is engaged in the business of money lending and that he has misused the impugned cheque which was given merely as a security. The accused denied his liability in respect thereto. He admitted his signatures on the impugned cheque but denied filling the particulars therein. Lastly, he stated that he is not aware about the legal notice.
12. Journey of trial: The accused failed to crossexamine the complainant and also failed to lead any evidence in his evidence despite grant of sufficient time and opportunities. His respective rights were compellingly closed New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 by the court vide separate orders.
13. Final Arguments: Final arguments were advanced only on behalf of the complainant. Learned counsel for the complainant, Mr. S.K. Singh, argued that the complainant granted a friendly loan to the accused and the repayment of the loan of Rs. 2,00,000/ has not been proved by the accused. Learned counsel further contended that the version of the accused has not been substantiated by any evidence to stand up for and bolster the same. He further argued that the plea of defence of the accused is far from the touchstone of preponderance of probabilities. The complaint, being within limitation, has been successfully proved by the complainant against the accused beyond reasonable doubt. Accordingly, learned counsel prayed that the accused be convicted for the offence under section 138 NI Act.
14. I have heard learned counsel; pursued the material on record and considered the submissions advanced.
15. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
16. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
1. A person must have drawn a cheque on an New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
17. It becomes imperative to mention section 139 of The Negotiable Instruments Act, 1881 which carves out a presumption in favour of the drawee New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was 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.
18. That said, what follows from the above is that the web of proof in a trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given.
19. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
20. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
21. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has denied the issuance of the cheque in question in favour of the complainant towards any legal liability and has asserted that the same was given merely as a security when a friend of the accused availed a loan of Rs. 50,000/ from the complainant in the year 2016.
New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17
22. The factor that renders this defence version bizarre and suspicious is that the accused has brought forth not even an iota of evidence to pillar his defence. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides. In the present case, the onus to prove that the complainant did not grant a friendly loan of Rs. 2,00,000/ to the accused and rather gave a loan of only Rs. 50,000/ to the friend of the accused rested on the accused. The accused has failed to bring forth any evidence to substantiate the said claim throughout the journey of trial. There is no evidence to even mildly suggest, much less prove, that the loan was not granted to the accused but was granted to his friend, namely, Basu Yadav. The story of the accused, in the absence of any credible evidence, cannot be taken as a gospel truth.
23. Further, even if presumably the cheque was given by the accused in his capacity as a guarantor, he cannot escape his liability. The liability of a surety is spelled out under section 128 of The Indian Contract Act, 1872 which provides that such liability shall be coextensive with that of the principal debtor unless otherwise provided. The expression 'coextensive' means that his liability commences from the very point where the liability of the principal debtor starts. Thus, what follows is that the surety may be proceeded against without first proceeding against the principal debtor. Also, the creditor can proceed against the principal debtor alone and vice versa.
24. Reliance can safely be placed on the judgment passed by the Hon'ble Apex Court in ICDS Ltd. Vs. Beena Shabeer and Anr. (2002) 6 SCC New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 426 wherein the Hon'ble court held the guarantor liable to be prosecuted under section 138 Negotiable Instruments Act, 1881 and held as under:
"The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the law makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. "Any cheque" and "other liability" are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra interpretation would defeat the intent of the legislature."
25. As far as the defence that the cheque was given merely as security is concerned, it is a settled tenet of law that security cheques do not fall out of the purview of section 138 NI Act. Moreover, the accused has failed to show as to how the impugned cheque was given merely as security and that he owes no liability in respect thereto.
26. For the sake of argument if one were to assume that the cheque in question was in fact, given as security to the complainant, as alleged by the New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 accused, then two pertinent questions may take birth out of reasonability one, why did the accused not send a written notice to the complainant to demand the cheque back from him. Merely stating that the cheque was given as security shall not suffice either to obscure the story put forth by the prosecution or to cause the probabilities to lie in one's favour.
27. The second question that would surface from the womb of reasonability is that why did the accused not file any complaint either with his bank or with the police in order to ensure that the cheque was not misused?! The failure to lodge/file any complaint further causes dubiety to lurk around the story of the defence. An adverse inference can safely be drawn against the accused who has otherwise failed to adduce any affirmative evidence to show that he indeed did everything within his power and control, as a prudent man would do, to ensure that the cheque tendered by him, allegedly as security, was not misused. Failure of the accused to prevent such alleged misuse materially ejects plausibility out of the defence version.
28. Reliance can profitably be placed on the judgment pronounced by the Hon'ble Parent High Court in V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which 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 cheque. 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 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
29. Now that the defences taken by the accused stand beseeched, let us examine the potentiality of the prosecution story. The complainant's unpretentious story is that he granted a friendly loan of Rs. 2,00,000/ to the accused and the accused issued the impugned cheque in his favour to repay the said loan. The accused has admitted his signatures on the impugned cheque, the New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 factum that a loan was taken from the complainant and lastly, the fact that he issued the impugned cheque in his favour.
30. The above mentioned admissions of fact by the accused coupled with the fact that he did not reply to the legal demand notice reek of culpability on the part of the accused. None of the defences taken by him was substantiated by pillar of any kind of evidence oral or documentary. In light of reverse onus of proof theory, the case of the complainant, unimpeachably stands proved.
31. The financial capacity of the complainant, the nonexamination of any corroborative witness, nonfiling of ITR, omission to mention the dates are inconsequential as the accused failed to lead any evidence to cause the onus of proof to shift on the complainant. The initial onus to rebut the statutory presumptions was not discharged by the accused.
32. The above view is endorsed in the judgment of the Hon'ble Delhi High Court in a case titled as Sanjay Arora v. Monika Singh Crl. A. 98/2017 wherein it has been held that:
"Mere admission of the complainant that he was earning only Rs. 12,000/ per month from his small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 the respondent to prove the facts that she had pleaded in answer to the notice under section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under section 139 Negotiable Instruments Act in the case at hand has not been rebutted. "
33. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant on which the technical offence under section 138 NI Act rests and lastly, that the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of section 138 NI Act stands assembled.
34. As for the second condition qua the presentation of the cheque within three months, the same is satisfied upon the perusal of the cheque in question, Ex. CW1/A dated 23.05.2017 and the return memo Ex CW1/B which is dated 26.05.2017, thus, being presented within prescribed period of limitation of three months. The defence did not to adduce any evidence whatsoever to contradict the same.
35. The third condition pertains to the return of the cheque as unpaid owing to it being dishonoured. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case the cheque is returned New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. At the cost of repetition, the defence has failed to rebut the said presumption as well. Hence, the condition is fulfilled.
36. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the same, Ex. CW1/C, to the accused. There is a crisp admission of the accused that the accused did not know about the notice. He has not denied the receipt thereof even mildly thus, implying the satisfaction of the fourth condition in light of statutory presumptions of law under section 27 of the General Clauses Act read with section 114 of The Indian Evidence Act, 1872.
37. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within fifteen days on the pretext that he owes no liability towards the complainant. However, he has miserably failed to prove the said assertion. Thus, the last limb of what will entail the liability against the accused is also structured.
38. Ratio: Finally, having considered the totality of the facts and circumstances of the case, the presumption spelled under section 139, the law enunciated under section 138 and the judgments cited above, the offence under section 138 of The Negotiable Instruments Act, 1881 is made out against the accused, Karpuri Thakur. The weight of the evidence adduced by the complainant to prove his case against the accused is sufficient enough to impute New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17 criminality on him. The complainant has discharged his burden to prove his case against the accused beyond all reasonable doubt. The accused is accordingly, convicted of the said offence.
39. Let the copy of this judgment be given to the convict free of cost.
Announced in the open court today i.e. 22.11.2018 Paridhi Gupta MM/N.I.Act02/South West Dwarka, Delhi Digitally signed by PARIDHI PARIDHI GUPTA GUPTA Date:
2018.11.22 17:16:49 +0530 New CC No.: 12590/2017 Pawan Kumar versus Karpuri Thakur 17/17