Delhi District Court
Page No. 1 To 10 Rajesh Seth vs . Vinod Kumar on 16 January, 2014
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK1623/10
b. Date of the commission of the offence : 27/02/2010
c. Name of the complainant Rajesh Seth
d. Name of accused person and his parentage: Vinod Kumar,
and residence S/o Late Manohar Lal,
R/o 8/2, Geeta Colony, Delhi31.
e. Offence complained of : Dishonoring of cheques
for Insufficient funds.
f. Plea of the accused and his examination (if any): Not guilty
because cheques in question
were given to some Hemant
Vohra and no loan taken
from the complainant.
g. Final Order : Held guilty.
Convicted.
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h. Order reserved on : 17.12.2013.
i. Order pronounced on : 16.01.2014
Brief reasons for decision:
1. The brief facts of the complainant's case as extracted from
complaint: Complainant had given a friendly loan of Rs. 1,00,000/ in
October 2009 to the accused and in discharge of his said loan liability, accused
had issued two cheques bearing number 581856 & 581857 both dt. 01.01.2010
for an amount of Rs. 50,000/ each both drawn on Syndicate Bank, Geeta
Colony, Delhi51 (hereinafter referred to cheques in question) in favour of
complainant. It is further submitted by the complainant that aforesaid cheques in
question had been dishonoured with endorsement "funds insufficient" vide
cheques returning memos dt. 29.01.2010. It is also case of complainant that
accused did not pay cheques amount within the stipulated time despite service of
legal demand notice dt. 11.02.2010. Hence, aggrieved from the aforesaid
conduct of accused, complainant filed the present complaint case u/s 138 of NI
Act on 29.03.2010.
2. Notice of accusation u/s 251 Cr.P.C was served on accused on
03.03.2011 to which he pleaded not guilty and claimed trial. Plea of defence of
accused also recorded on 03.03.2011 itself. Complainant (CW1) examined and
cross examined extensively by counsel for accused on 03.05.2012 and
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17.10.2012. Accused (DW1) examined and cross examined u/s 315 Cr.P.C on
23.01.2013. Hemant Vohra (DW2) and Girish Malhotra (DW3) examined on
12.07.2013. Both counsel had made oral argument in details and counsel for
complainant had also filed written argument on record.
3. Plea of defence of accused: Accused admitted his signature
appearing on his cheques in question and filling of column of amount. However,
accused pleaded that he had handed over cheque in question to some Hemant
Vohra as security in respect of share transaction between him and Hemant
Vohar as business partner. Accused further pleaded that he did not fill the name
of complainant as appearing on cheque in question. (See plea of defence of
accused dt. 03.03.2011). However, in view of section 20 of NI Act, the holder of
cheques in question i.e. complainant has primafaice authority to complete any
inchoate cheques. Accused also pleaded that he can not say whether he
received any legal demand notice or not. On the other hand, complainant filed
copy of legal demand notice, postal and acknowledgment receipt. Moreover,
plea of non service of legal demand notice is not plausible legal defence for
accused. Reference may be made to judgment of Supreme Court of India made
in C. C. Alavi Haji Vs. P. Muhammed (2007) 6 SCC 555 and relevant para of the
same is reproduced as under:
17. "It is also to be borne in mind that the requirement of
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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 from the court
in respect of the complaint u/s 138 of NI Act, make
payment of the cheque amount and submit to the
court that he had made payment within 15 days of
receipt of summons, therefore, complaint is liable to
be rejected. Any 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. In our
view, any other interpretation of the proviso would defeat
the very object of the legislation. As observed in
Bhaskarans case (supra), if the giving of notice in the
context of Clause (b) of the proviso was the same as the
receipt of notice a trickster cheque drawer would get the
premium of avoid receiving the notice by adopting
different strategies and escape from legal consequences
of Section 138 of the Act."
Page No. 4 To 10 Rajesh Seth Vs. Vinod Kumar
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X X
18. "In the instant case, the averment made in the
complaint in this regard is: Though the complainant issued
lawyers notice intimating the dishonour of cheque and
demanded payment on 04.08.2001, the same was
returned on 10.08.2001 saying that the accused was out of
station. True, there was no averment to the effect that the
notice was sent at the correct address of the drawer of the
cheque by registered post acknowledgement due. But the
returned envelope was annexed to the complaint and it
thus, formed a part of the complaint which showed that the
notice was sent by registered post acknowledgement due
to the correct address and was returned with an
endorsement that the addressee was abroad. We are of
the view that on facts in hand the requirements of Section
138 of the Act had been sufficiently complied with and the
decision of the High Court does not call for interference." .
In view of aforesaid observation of Hon'ble Supreme Court of India
nonservice of legal demand notice is also of no great legal importance for
accused.
4. I have given thoughtful consideration to respective submissions of
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both counsels and made careful perusal of entire record of this case.
5. It would be appropriate to take note of some relevant legal provisions
governing proceedings of trial of offence u/s 138 of NI Act. Section 118 of the
Act provides for presumption as to drawing, transfer and acceptance of cheque
for consideration. Section 139 of the act further provides for presumption
regarding receiving of cheque in question by the holder of cheque (i.e.
Complainant in this case) in discharge of legally enforceable debt or liability.
Here, it would be relevant to quote the observation of the three judges bench of
Hon'ble Supreme Court of India made in Rangappa Vs. S. Mohan (2010) 11 SCC
441 as under:
"In light of these extracts, we are in agreement with the
respondentclaimant 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. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein."
6. Accused has to rebut aforesaid legal presumption regarding Page No. 6 To 10 Rajesh Seth Vs. Vinod Kumar 7 consideration and genuineness of cheque in question by leading cogent and reliable evidence and mere denial of existence of consideration in question would not be sufficient to create probable doubt over the case of complainant. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pharelal, (1993) 3 SCC 35 (Para.12) it has been held as herein below: The bare denial or the passing of the consideration apparently does not appear to be any defence.
Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non existence was so probable that a prudent man would, under the circumstances, of the case, act upon the plea that it did not exist."
7. Complainant (CW1) stated that he knew accused for last 57 years as he happens to be his neighbour and both were on visiting terms. CW1 also stated that he advanced loan in question in October 2009 in two installments of Rs. 50,000/ each given on consecutive dates. Complainant (CW1) admitted that he did not maintain any statement of account and he was not income tax payee Page No. 7 To 10 Rajesh Seth Vs. Vinod Kumar 8 in year 2009. However, complainant claimed that he used to earn on average Rs. 15,000/ to 20,000/ per month in year 2009 and during peak time he used to earn Rs. 35,000/ per month.
8. Accused (DW1) admitted that he knew complainant and complainant used to visit his office. Accused (DW1) further admitted that he signed and filled column of amount as appearing on cheque in question in words and digits and handed over the same to his partner Hemant Vohra. Accused (DW1) further admitted that he received legal demand notice. However, he did not reply to the same.
On the other hand, Hemant Vohra (DW2) testified that he knew both complainant and accused. DW2 further testified that accused had told him in NovemberDecember 2009 that he had taken almost Rs. 2 lacs from complainant as loan and he had given some cheques as security to the complainant.
Girish Malhotra (DW3) also testified that he knew complainant and accused and he never witnessed any transaction between complainant and accused.
9. From examination of his own defence witnesses DW2 and DW3, nothing has been extracted supporting alleged defence version of accused. Accused also failed to explain as to why he had not taken any written acknowledgment from Hemant Vohra regarding lost of cheques in question and Page No. 8 To 10 Rajesh Seth Vs. Vinod Kumar 9 why he had not taken any action against Hemant Vohra or complainant regarding alleged misuse of cheques in question. Accused further failed to explain as to why he did not ask his bank to stop payment regarding cheques in question and why he did not reply to legal demand notice of complainant, if he had any suitable explaination to the claim of complainant.
10. Ld. Counsel for accused contended that complainant did not mention the fact as to he had allegedly given two loans of Rs. 1,00,000/ each to the accused firstly in September 2009 and secondly in October 2009. Accordingly, Ld. Counsel for accused alleged that complainant has suppressed vital facts of transaction in question and he had also filed another case against same accused for dishonouring of another cheque in respect of another loan of Rs. 1,00,000/. On the other hand, Ld. Counsel for complainant explained that complainant had given two friendly loan of Rs. 1,00,000/ to accused one in September 2009 and second loan in October 2009. Ld. Counsel for complainant further explained that complainant had filed another case on basis of another cheque of accused in respect of another loan transaction of Rs. 1,00,000/. Here, court is of considered view that just non mentioning of another loan transaction with accused in complaint or legal demand notice does not mean transaction in question did not take place. Moreover, complainant had admittedly testified regarding said two separate loan transaction with accused in his testimony in another case. Ld. Counsel for complainant also contended that accused had Page No. 9 To 10 Rajesh Seth Vs. Vinod Kumar 10 acknowledged liability in question towards complainant as he got case referred to Mediation Cell for settlement.
11. Court is mindful of statutory legal presumption u/s 118 read with 139 of NI Act regarding consideration and genuineness of cheques in question came into play in favour of complainant as accused himself admitted his signature on the same. Accused had to rebut the said presumption by producing credible evidence or exposing fatal infirmity or improbability in the case of complainant. In upshot of aforesaid discussion the court is of considered opinion that accused failed to rebut legal presumption by leading cogent and reliable evidence. Thus, I return finding of guilt of accused u/s 138 of NI Act. Accordingly, let convict be heard on point of sentence separately.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 16th Day of January, 2014 MM, NI Act, (East)
KKD Courts, Delhi.
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