Delhi District Court
Rajesh Kumar vs Rajendra Kumar on 18 January, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
RAJESH KUMAR VS RAJENDRA KUMAR
CC No. 474673/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 474673/2016
(2) Name of the complainant : Rajesh Kumar
S/o Late Sh Vishambar Dayal
R/o 1/20-21, Dakshinpuri Ext.,
New Delhi-110062
(3) Name of the accused, : Rajendra Kumar
parentage & address S/o Sh Ramesh
R/o 16/26, Dakshinpuri Ext.,
New Delhi-110062
Also at :
Employment No. 1384/132122
S.No. R-382, Lok Nayak
Hospital, Govt. of NCT of Delhi,
Jawahar Lal Nehru Marg, New
Delhi
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTION
(7) Date of Institution : 20/12/2012
(8) Date on which reserved for
judgment : 08/01/2018
(9) Date of Judgment : 18/01/2018
Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016
Page 1 of 12
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that complainant gave a friendly loan of Rs.1.50 lacs to the accused on 10/06/2012 with assurance of accused to repay the said loan in the month of July 2012. On 29/07/2012, accused in order to discharge his legally enforceable liability, issued cheque bearing no. 967991 dated 30/08/2012 for a sum of Rs1.50 lacs drawn on United Bank of India, branch Greater Kailash, New Delhi (hereinafter "the cheque in question") in favour of the complainant. The complainant presented the cheque in question with his banker on 30/08/2012 which was returned dishonoured with remarks "Funds Insufficient" vide cheque returning memo dated 01/09/2012. Thereafter, the cheque in question was again presented by the complainant, at the request of accused, which was again dishonoured for the same reason vide cheque returning memo dated 05/09/2012. Thereafter, on failure of accused to pay the said amount, a legal demand notice dated 14/09/2012 was sent to the accused through registered AD and courier which was deemed to be duly served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/P was filed by the complainant. In his affidavit of evidence ExCW1/P, the complainant reiterated all the averments made in his complaint and relied on Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 2 of 12 3 documents Ex.CW1/A to Ex.CW1/E, which are the original cheque in question, its return memo dated 05/09/2012, copy of legal notice and proofs of delivery.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 26/10/2012.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 15/09/2014 to which the accused pleaded not guilty and claimed trial. Accused further stated that he had paid the loan amount on the monthly installment of Rs5000/- since July 2011 and the cheque was taken by complainant as blank for security purpose and was mis-utilized by filling the amount and presented in the bank.
4. Thereafter, upon application of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 15/09/2014 and the accused was given an opportunity to cross examine the complainant and his witnesses.
Complainant was duly cross examined by the counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 01/08/2017.
5. Thereafter, the plea of the accused Rajendra Kumar u/s 313 r/w 281 CrPC was recorded vide order dated 04/09/2017, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that he had repaid the entire amount by way of monthly installments paid in cash as complainant was his neigbourer. He had given blank Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 3 of 12 4 signed cheque as security to the complainant and the particulars on the cheque have not been written by him which can be confirmed by naked eyes. He had taken loan on interest and he used to pay monthly installment of Rs.15,000/-. Accused further stated that he had issued blank signed cheque and he had no legal liability to pay the cheque amount to the complainant. Accused further stated that he did not receive the legal notice and under the pressure, he had even deposited Rs.40,000/ during Court proceedings.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined Geeta, mother of accused as DW-1 in his defence evidence. No other defence witness was examined by the accused. Thus, DE was closed vide order dated 27/11/2017 and matter was fixed for final arguments.
7. It has been argued on behalf of complainant that complainant had given friendly loan of Rs1.50 lacs to the accused and cheque was issued by the accused to repay the loan. The testimony of complainant has remained unrebutted but the accused has taken contradictory pleas at different stages of trial. Further, even DW-1 admitted that accused had taken loan of Rs1.50 lacs but neither the accused nor DW-1 have produced any record regarding repayment of loan. In the present case, the conduct of the accused is also to be noticed that the matter was settled in mediation and complainant even received payment of Rs40,000/- but thereafter, resiled from the settlement. The testimony of complainant has remained unrebutted and accused has taken contradictory defences at different stages of trial. Thus, the accused has failed Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 4 of 12 5 to prove his defence while the complainant has proved his case beyond reasonable doubts. Therefore, accused is liable to be convicted.
On the other hand, it has been argued on behalf of accused that as per complainant, he had given loan of Rs1.50 lacs to the accused but the accused has taken loan of Rs50,000/- only which was duly repaid to complainant and complainant has admitted the same during cross examination. Further, admittedly, no written agreement or receipt has been executed and it is highly improbable that complainant would not take even the receipt from the accused. It has been further argued that complainant has admitted during cross examination that blank signed cheque was given to the complainant and complainant has also admitted that he filled the particulars on the cheque except the signatures of the accused. This duly proves that the cheque was given to complainant only as security and despite receipt of payment, complainant has misused the blank signed cheque of accused. It has been further argued that the complainant has failed to mention the mode of payment of loan either in complaint or even in evidence whether the loan was given by way of cash or cheque. It has been further argued that as per complainant, he has given the loan to the accused on 10.06.2012 as stated in complaint and the cheque is dated 30.08.2012 but the complainant has not mentioned the duration for which loan was taken by accused. It has been further argued that during cross examination, complainant has admitted the entire defence of accused. Further, being Govt employee, accused has entered into mediation settlement and even paid Rs40,000/- to get rid of the litigation. The accused is Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 5 of 12 6 required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, receipt of legal notice and the legal liability of accused to pay the cheque amount to the complainant are in dispute.
11. Now, this court shall deal with the defences of accused one by one.
11A. FIRST DEFENCE AS TO NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 14/09/2012 ExCW1/C. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 14/09/2012 ExCW1/C was sent to the accused through registered AD as well as courier on 14/09/2012 on the address of accused, receipts of which are Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 6 of 12 7 ExCW1/D & E. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"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 the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A4. Further in the present case, accused has mentioned the same address on the bail bonds furnished on 09.01.2014 on which the complainant had sent the legal notice.
Therefore, in view of the above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 7 of 12 8 14/09/2012 ExCW-1/C was served on the accused.
11B. SECOND DEFENCE AS TO LEGAL LIABILITY B1. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
B2. It is the case of the complainant that he had given friendly loan of Rs1.50 lacs to the accused on 10.06.12 and cheque has been issued by the accused to discharge his liability.
On the other hand, as per accused, he had issued blank signed cheque as security and he had already repaid the entire amount. B3. In the present case, the accused has taken contradictory defences at different stages of trial. In the defence disclosed to the notice U/s 251 CrPC, accused has taken defence that "he had paid the loan amount on monthly installments of Rs5000/- since July 2011" and in the statement U/s 313 CrPC, Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 8 of 12 9 accused has stated that "he had taken loan on interest and he has paid the entire amount by way of monthly installment of Rs15000/-". Thus, the accused has admitted that he has taken loan from the complainant but he could not clarify the exact mode of repayment. Further, during cross examination, suggestion has been given to the complainant that "the accused has taken loan of Rs50,000/- on 29.07.2012 and same has been repaid in installments of Rs10,000/- each". Further, DW-1 has deposed that accused borrowed Rs1.50 lacs from complainant and he repaid the amount by way of monthly installments of Rs7500/-. Thus, there are 04 stages of trial and at each stage, the accused admitted one thing that he had taken loan from the complainant but he had taken inconsistent stand as to amount of monthly installments for repayment of loan.
B4. Further, the accused has examined his mother as DW-1 who has admitted that accused has borrowed Rs1.50 lacs from the complainant and as per DW-1, accused has repaid the loan by way of monthly installments of Rs7500/- in her presence. But during cross examination, she has deposed that :
"I do not know the year in which my son had taken Rs1.50 lacs from the complainant. I cannot tell the year by which my son has paid Rs7500/- to the complainant. I cannot tell the year whether it is paid in 2014, 2015, 2016. We had not taken any receipt of Rs7500/- paid to the complainant. Vol Complainant not issued the receipt. We had never paid Rs5000/-, Rs15,000/-. We have only paid Rs7500/- to the complainant".
Thus, the testimony of DW-1 is of no help to the accused as she has failed to corroborate the plea of accused and there is contradiction in the statement of accused and DW-1 itself regarding the loan amount as well as the Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 9 of 12 10 amount of monthly installment for repayment of loan. B5. Further, the accused has taken plea that he has given blank signed cheque as security to the complainant and complainant has admitted the same during cross examination. The relevant portion of cross examination of complainant is as follows :
"It is correct that on the day of grant of loan on 10.06.12, no cheque was handed over by the accused.................................It is correct that particulars on the cheque except signatures are in my handwriting. Vol I have filled the particulars on the cheque and thereafter, accused signed the cheque. It is wrong to suggest that accused had taken loan of Rs50,000/- from me on 29.07.12 and cheque in question was given as blank signed cheque as security on 29.07.12".
It is settled principle that the testimony of a witness has to be considered as a whole and only one line cannot be considered in isolation so as to consider the same as an admission against the said witness. From the testimony of complainant it is clear that complainant has deposed that the particulars on the cheque are written by him and thereafter, accused has signed the cheque and complainant has nowhere admitted that he has filled the particulars on the blank signed cheque of the accused. B6. Moreover, even for the sake of arguments, it is considered that complainant has obtained blank signed cheque, even then the accused cannot escape his liability because no law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 10 of 12 11 almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused had no legal liability on the date of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011 that :
"there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him".
B7. Further, the objections of accused as to financial capacity of complainant are merit-less because the accused has admitted that he had taken the loan from the complainant and even for the sake of arguments, the plea of Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 11 of 12 12 accused is considered, then during cross examination of complainant by way of suggestion, accused has only disputed the quantum of liability. But accused has failed to raise a reasonable doubt upon the veracity of complainant's testimony.
12. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused Rajendra Kumar s/o Sh Ramesh guilty for the punishable U/s 138 N I Act. Hence, he stands convicted.
13. Let the convict be heard on the quantum of sentence on 05/02/2018 at 02 PM.
Announced in the open court on 18/01/2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 12 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Rajesh Kumar vs Rajendra Kumar CC No. 474673/2016 Page 12 of 12