Delhi District Court
Mamta Sarkar vs Srikant Biswas (S.K. Biswas) on 6 October, 2015
IN THE COURT OF SH. ASHOK KUMAR, MM07,
SOUTH EAST, SAKET COURTS, NEW DELHI
CC No. 141/2/14
U/S 138 NI Act
Mamta Sarkar,
W/o Sh. Santosh,
R/o A352, Bhoomiheen Camp,
Near DDA Flat Kalkaji Extension,
New Delhi110019. .......................Complainant
Versus
Srikant Biswas (S.K. Biswas),
S/o Sh.Sannasi Biswas,
R/o House No. A135, Ekta Vihar,
Jaitpur Extension Badarpur,
New Delhi110044. .............................. Accused
Offence Complaint off or proved. : Section 138 of Negotiable
Instrument Act.
Plea of accused : Pleaded not guilty
Date of Institution : 03.05.2008
Date of Reserving order : 24.09.2015
Final order : Convicted
Date of pronouncement : 06.10.2015
JUDGMENT
FACTS OF THE CASE 1 The facts of the case as per the complaint are that in discharge of his liability the accused has issued two cheques bearing No. 037033 dated 30.09.2007 for a sum of Rs, 70,000/ and cheque bearing No. 037036 dated 22.01.2008 for Rs. 10,000/ both drawn on PNB Bank, VSC, Alaknanda, New Delhi 19. The CC No. 141/2/14 Page 1 of 17 said cheque on being presented by the complainant to her bank were got dishonoured vide bank memo dated 13.03.2008 for the ground " Stopped Payment" and the accused failed to make the payment of said cheques amount despite service of notice dated 30.03.2008.
TRIAL PROCEEDINGS 2 Thereafter, the complainant filed the complaint under Sec. 138 NI Act after the accused failed to make the payment within 15 days of the receipt of legal notice. On the said facts, the accused was summoned and notice under Sec. 138 NI Act was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for evidence and CE was closed on 12.04.2012 and case was fixed for statement of accused. Statement of accused was recorded u/s 313 Cr.P.C and matter was fixed for DE on 15.09.2012. In his defence the accused has examined Savitri Biswas as DW1, Sapan Sarkar as DW2, ASI Raj Singh as DW3 and himself as DW4. Thereafter, final arguments heard. The following documents were relied by the complainant in his evidence :
3 Complainant proved the following documents in his presummoning evidence : i Copy of the undertaking/receipt is Ex. CW1/A and Cheuqes in question given by accused to complainant are Ex. CW1/B, and Ex. CW1/C respectively.
ii Bank returning memos Ex. CW1/D and CW1/E.
iii Legal notice is Ex. CW1/F.
iv The Courier, UPC receipts and proof of delivery are Ex. CW1/G
CC No. 141/2/14 Page 2 of 17
to CW1/I.
v. The affidavit of evidence of complainant is Ex. CW1/1.
4 Before adverting to the facts of the case and decision thereon it would be pertinent to quote the relevant law in the present case.
138 NI Act: Dishonour of of cheque for insufficiency, etc. of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [ a terms which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid' CC No. 141/2/14 Page 3 of 17 and.
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section, " debt or other liability" means a legally enforceable debt or other liability.
139 NI Act: 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.
Sec. 146 of NI Act provides that the court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon 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.
Sec. 43 of NI Act interalia provides that a negotiable instrument drawn, accepted, etc. without consideration or for a consideration which fails creates no obligation of payment between the parties to the transaction.
The ingredients to prove the commission of offence under Sec. 138 NI Act have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: CC No. 141/2/14 Page 4 of 17
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of 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;
(v) 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt ofar the said notice"
On burden of proof in cases under NI Act From reading of below quoted paragraphs No. 4 to 9 and 20 of Hon'ble CC No. 141/2/14 Page 5 of 17 Supreme Court in Vijay Vs Laxman 2013 (1) RCR Cr 1028, the following legal ratio emerges with regard to burden of proof in matters under NI Act.
i. The prosecution has to prove beyond reasonable doubt that cheque was issued by the accused duly signed by him but this burden is lightened by presumption under Sec. 118 and 139 NI Act. Hence, the complainant has only to make an averment that cheque was issued by accused to complainant for lawful consideration.
ii. Thereafter, the burden shifts on the accused to show that the cheque was not issued in lieu of legally enforceable debt or liability but was issued by way of security or any other reason on account of some business transaction or was obtained unlawfully.
iii. However, accused can rebut this presumption or discharge his burden by showing a probable defence or preponderance of probability raising genuine doubt that no legally enforceable debt or liability exists.
iv. Accused can discharge this burden either from circumstances appearing in the case or the evidence adduced by the complainant or accused in his defence.
v. On reading of definition of word proved or disproved in Sec. 3 of Evidence Act with Sec. 139 NI Act court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. CC No. 141/2/14 Page 6 of 17
Above said law is quoted in paragraphs No. 4 to 9 and 20 of Hon'ble Supreme Court in Vijay Vs Laxman and another 2013 (1) RCR Cr 1028.
Above said observations were also made by Hon'ble Supreme Court in Kamala S Vs Vidhyadharan MJ 2007 (3) RCR (Cr) 865 and M/s. Kumar Exports Vs M/s Sharma Carpets 2008 (16) SCALE 372 Paras 9 to 12.
Hence, the accused by a preponderance of probability has to prove the following :
1 That the cheque was issued as security or for any business transaction and there is no legally enforceable debt or liability because the said security is no more enforceable or the debt or liability has been paid.
2 That the cheque was taken unlawfully and wrongfully.
3 That the debt or liability does not remain legally enforceable due to any other reason.
On service of legal notice in cases under NI Act In this respect it has been provided in the case titled as C.C. Alavi Haji Vs Palapetty Muhammed and Anothers (2007) 6 SCC 555 that the entire purpose of service of legal notice to the accused under Sec. 138 NI Act is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of legal notice and thereby free himself from the penal consequences. It conceives cases where a wellintentioned drawer may not have made necessary arrangements for reasons beyond his control to honour the cheque drawn by him and hence this opportunity has been provided. Hence, this provision is meant to protect honest drawers whose cheque may have been dishonoured for the fault of others or who CC No. 141/2/14 Page 7 of 17 may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. Hence, any honest 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 under Sec. 138 NI Act, make payment of the cheuqe amount and submit to the court that he has made payment within 15 days of receipt of summons (by receiving a copy of the plaint with the summons) and, therefore, the complaint is liable to be rejected. Where a legal notice is sent under registered cover with proper address and stamp and sent along with the summons and complaint, then if it is contended that legal notice was not received only with a view to cheat the complainant, and such offer of payment was not made within 15 days of receipt of summons, then such dishonest drawer can not contend improper service of the notice by virtue of applicability of presumption under Sec. 27 GC Act and 114 Evidence Act.
5 Now it will be discussed whether all the ingredients for commission of offence u/s 138 NI Act have been proved by the prosecution or not. At the cost of repetition the ingredients to constitute the offence u/s 138 NI Act are 5.1 The first ingredient of the offence stands proved as original cheques are placed on record as Ex. CW1/B and CW1/C and issuance of same is admitted by the accused though under the alleged compulsion of the complainant. The accused during the cross examination of the complainant, his own explanation u/s 313 Cr.P.C and defence evidence led by him proceeds on the ground that he has signed the cheques and it is settled law that a signed cheque by the account holder CC No. 141/2/14 Page 8 of 17 is a complete instrument and the rest of the portions of the cheque can be filled by the complainant. Only defence of the accused is that though he signed the cheques in question and gave the same to the complainant but the same were executed under coercion and only as a surety for one Lalit and he himself did not take any loan from the complainant and hence he does not owe any liability. Hence it is clear that that the accused has signed the cheque in question. 5.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheques are admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands presumed in favour of the complainant. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898. Not only the presumption but the complainant has also brought on record Ex. CW1/A which is an undertaking in writing in the presence of two witnesses that the accused owes the amount of Rs. 70000/ returnable on 30.09.2007 to be paid to the complainant.
Now it is the accused who has to rebut the presumption by creating a preponderance of a reasonable probability either from the contradictions in the complainant's evidence or from his own defence evidence that there is no legally recoverable debt or liability against the accused pertaining to the cheque in question.
The complainant has deposed by way of the affidavit Ex. CW1/1 that the two cheques in question have been issued by the accused for the payment of the principal amount of Rs. 70000/ taken as friendly loan from the complainant CC No. 141/2/14 Page 9 of 17 and for the payment of Rs. 10000/ as interest when the friendly loan could not be repaid by the accused on the due date of 30.09.2007. This stand has been taken consistently by the complainant in the complainant evidence, during cross examination and the defence evidence conducted by the accused. Further as already stated the complainant has relied upon Ex. CW1/A which is the undertaking written and signed by the accused promising to repay the loan by 30.09.2007. When this loan could not be paid back by the accused by the due date of 30.09.2007 then cheque Ex. CW1/B was issued by the accused and when even after a lapse of threefour months the loan amount could not be paid, then another cheque Ex. CW1/C was issued in January, 2008 as interest accrued. Thereafter when both the principal amount and interest were not paid, legal notice was issued and when payment was not made within the statutory period, present complaint was filed.
When the defence of the accused is perused in form of his defence plea to the notice framed, cross examination of the complainant, his explanation to the prosecution evidence put forth to confront him u/s 313 Cr.P.C and thereafter his own defence evidence, it is felt that the same is full of contradictions which instead of rebutting the onus of presumption u/s 139 NI Act arising in favour of the complainant, strengthens the case of the complainant. The contradictions arising in the defence of the accused have the effect of strengthening the case of the complainant. These contradictions are as follows:
(i) The accused states in the defence plea to the notice framed u/s 251 Cr.P.C that the undertaking dated 21.09.2007 Ex. CW1/A was taken from him CC No. 141/2/14 Page 10 of 17 by force with the help of some unsocial elements including Santosh Sharma and Pappu who have signed the said undertaking as witnesses while in the defence evidence of DW1 wife of the accused as well as DW4 accused himself it is stated that the neighbour Santosh Sharma and other neighbours saved her husband. It is further stated by DW4 in his cross examination dated 13.10.2014 that whatever happened on the day of incident i.e. 21.09.2007 happened under the supervision of Santosh Sharma. Hence, on one hand Santosh Sharma is stated to be unsocial element who helped in the coercive action of the complainant while in the defence evidence it is stated that Santosh Sharma being a good neighbour helped to save he accused from the complainant and her accomplices. Also when it is admitted that whatever happened on 21.09.2007 was under the supervision of Santosh Sharma, then how can the accused be made to write the undertaking under compulsion as Santosh Sharma appeared to be on the side of the accused in saving him.
(ii) Further it is stated that the cheque Ex. CW1/B in amount of Rs. 70000/ was taken by the complainant by force and cheque Ex. CW1/C in the amount of Rs. 10000/ was towards installment. It is further stated that the due amount was only Rs. 20000/ which has been paid back to the accused by way of cheque and the present cheques were issued as surety for one Lalit who had taken money from the complainant. Said defence has been taken in the notice of accusation served to the accused. However, in the explanation u/s 313 Cr.P.C, it has been stated by the accused that the actual amount of loan given to accused was only Rs. 30000/ which swelled to Rs. 70000/ as the complainant also added interest. Thereafter the complainant demanded further interest and so cheque of CC No. 141/2/14 Page 11 of 17 Rs. 10000/ Ex. CW1/C was taken from him. It has nowhere has been stated by the accused as to why he has been compelled to be surety of this Lalit who has taken a mysterious aura as neither he has been produced as a witness by the accused nor it is stated as to what relations he shares with the accused. Also it is unexplained as to why these details i.e. loan amount was Rs. 30000/ but the complainant demanded Rs. 80000/ in total by way of two cheques in question was not pleaded when notice of accusation was served to the accused. Also the accused does not explain why he did not take the plea in the notice of accusation that Ex. CW1/C cheque was also taken from him by force.
(iii) Further the accused states in the notice of accusation that the cheques were dishonoured on instruction of stop payment when the complainant threatened to kill the accused at his residence. It is again something mysterious that the accused who could issue cheques under threat of the complainant and her accomplices could muster courage to issue such instruction when in the first instance he issued the cheque under threat.
(iv) DW1 wife of accused states in evidence dated 1.7.2013 that whole of the cheque book was taken by the complainant during quarrel on day of incident but it is very strange that the complainant who is hellbent to take the money from the accused was honest enough to take only two leaflets of cheques from the cheque book.
(v) When in cross examination dated 09.10.2013 of DW4 it was suggested to the accused whether he can show the details regarding date, amount and payee of the cheque from the folio/index maintained, the accused answered in CC No. 141/2/14 Page 12 of 17 the affirmative but on 13.10.2014 he avoided to provide the details of the various cheques issued.
(vi) In the notice of accusation it is stated that cheque Ex. CW1/C was taken as an installment but in the explanation u/s 313 Cr.P.C as well as the cross examination of DW4 accused dated 13.10.2014, the complainant while taking back his statement that such cheque was issued towards installment now states that it was towards interest of the loan.
(vii) It is also very strange that the complainant who is a lady with no previous background of doubtful antecedents can apply pressure on the accused to issue two cheques in question especially considering the above mentioned contradictions.
(viii) Ld. Defence counsel stated that there is a contradiction in the case of the complainant that there was a loan of Rs. 70000/ which was given to the accused because while in cross examination dated 22.07.2011 on one hand he denies payment of Rs. 20000/ from the accused but again in the next line he states that the accused has paid Rs. 20000/ vide cheque No. 37034 on 24.10.2007. Hence it is clear that loan was only of Rs. 20000/ but the cheques in question were taken of an enhanced amount. This plea is without any force because the complainant has given the explanation in the successive lines of cross examination that this payment of Rs. 20000/ was concerning some other loan taken by accused seven to eight months before. Even otherwise this defence is self destructive because the accused has already taken the plea that he was only as a surety for the loan for one Lalit not for Rs. 20000/ but Rs. 30000/. Hence, on this point no contradiction CC No. 141/2/14 Page 13 of 17 could be brought by the defence.
(ix) Further Ld. Defence counsel states that in cross examination dated 16.09.2009 the complainant states that she went alongwith her father to house of the accused to grant the loan of Rs. 70000/ but in the affidavit by way of evidence the complainant states that the accused approached her for the loan. However, in my view considering too many contradictions in the defence of the accused which infact strengthened the case of the complainant which is already strong because of the presumption u/s 139 NI Act which stand unrebutted, the said contradiction only a minor contradiction which is not fatal to the complainant case. Hence on one hand the accused has not been able to show that he did not take any loan from the complainant or that he repaid the amount and on the other hand the presumption in favour of the complainant that the cheques were issued by the accused to him for a legal consideration stands unrebutted. Hence, I give the finding in favour of the complainant that he received the cheques from the accused for a valid consideration.
5.3 The third ingredient of the offence is that cheque must be presented to the bank within a period of six months from the date mentioned on it. The cheques are Ex. CW1/B and CW1/C were returned back unpaid on 13.03.2008 and the cheques are dated 30.9.2007 and 22.01.2008. So it is evident that it was presented for payment within the statutory period of six months.
5.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheque were returned unpaid for the reason " Stopped Payment ". The original bank returnmemos Ex CW1/D to Ex. CW1/E placed on record proves CC No. 141/2/14 Page 14 of 17 dishonour of cheques by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/D to CW1/E went uncontroverted. 5.5 The fifth ingredient of the offence is that the demand notice must be issued to the accused within 30 days of the intimation of dishonour of cheque and same be served upon the accused. Accused has denied the receipt of legal notice Ex. CW1/G. The address mentioned in the pre & post summoning affidavit (both are same) and in the complaint on the basis of which summons were issued to the accused and he had appeared is not disputed by the accused. In view of Judgment of CC. Alavi Haji (Supra) this point can not be raised any more by the accused. If the accused had not received the legal notice, then he could have offered the payment within 15 days from the receipt of the summons in view of my aforesaid findings in the second ingredient that cheque was issued in discharge of legal liability.
5.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. During the evidence, the accused has clearly admitted that because he does not owe anything to the complainant hence he did not make the payment of cheque amount. DECISION
6. In view of the aforesaid the accused is convicted for the offence under Sec. 138 NI Act and he be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 06.10.2015 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 141/2/14 Page 15 of 17
IN THE COURT OF SH. ASHOK KUMAR, MM07,
SOUTH EAST, SAKET COURTS, NEW DELHI
CC No. 141/2/14
U/S 138 NI Act
Mamta Sarkar,
Versus
Srikant Biswas (S.K. Biswas),
06.10.2015
ORDER ON POINT OF SENTENCE
Present : Complainant in person.
Convict in person with counsel Sh. Ashok Kotnala.
Vide separate judgement, the accused is convicted for commission of offence under Sec. 138 NI Act for nonpayment of two cheques amounting to Rs. 80000/ in total vide separate judgement of even date.
It is stated by the convict that he is jobless at present. However, the complainant contradicts this version and states that the convict is a doctor in alternative treatment and this is also supported by the counsel for convict. The convict has a family consisting of wife and one child. It is stated that a lenient view may be taken against the convict while imposing the sentence and convict be not sentenced to imprisonment.
In view of the fact that the matter is pending since year 2008 and is more than 7 years old and keeping in view the fact that the cases under Sec. 138 NI Act are unduly clogging the dockets of the courts leading to docket explosion and CC No. 141/2/14 Page 16 of 17 extraction of judicial time which could have been given to other cases and on the other hand due to the dishonest issuance of cheque, the same is eroding of credibility of such instruments, this court does not deem it necessary to extend the benefit of Probation of Offender Act to the accused. Such dishonest conduct leads not only to docket explosion which needs to be tackled with a heavy hand but also has resulted in harassment of the complainant holding up the valuable money belonging to him.
In view of the facts and circumstances, the convict is directed to suffer simple imprisonment of 9 months and fine of Rs 1,60,000/ (which is the double of the cheques amount) and in default of payment of the same, the convict shall suffer simple imprisonment for further 3 months for offence punishable u/s 138 NI Act. Hence, if the fine is not paid then the total period of simple imprisonment is one year. Since the complainant has suffered lot of harassment and has had to launch and sustain prosecution for a long period by denial of legally recoverable amount due to her, hence all of such fine be paid as recompense to her. Copy of judgement and order on sentence be given to the convict.
Announced in the open (ASHOK KUMAR)
Court on 06.10.2015 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 141/2/14 Page 17 of 17