Delhi District Court
Ranbir Singh vs . Ranu Bala Giri & Others on 5 February, 2013
Ranbir Singh Vs. Ranu Bala Giri & others
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE, NORTH, DELHI
CC No. 1168A/10
Sh. Ranbir Singh
S/o Sobha Singh
Residence of G-172, IInd Floor,
G-Block, Hari Nagar,
Delhi.
....................Complainant
vs.
1. Renu Bala Giri
W/o Sh. Nath Giri
2. Sh. Gaurav Giri,
S/o Sh. Nath Giri
IInd Floor, Janak Puri,
New Delhi-110058.
............................Accused
The offence complained of or proved : u/s 138 NI Act
The plea of the accused persons : not guilty
Final order :
Date of institution of complaint : 23.05.2006
Date on which reserved for judgment : 21.11.2012
Date of pronouncement of judgment : 05.01.2013
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Ranbir Singh Vs. Ranu Bala Giri & others
JUDGMENT:
1. Vide this judgment this court shall dispose off the present complaint u/s 138 Negotiable Instruments Act 1881 filed by the complainant against the accused.
2. Brief facts stated in the complaint is a peace loving and law abiding person and is residing with his family members. The accused no. 2 was in friendly terms with the complainant for the last so many years. On 25.02.2006, both accused approached the complainant for a friendly loan of Rs.70,000/- stating that they were in dire need of money for their personal work. Since the complainant was in good friendly terms with the accused no. 2, he advanced a friendly loan of Rs. 70,000/- to the accused and at the time of taking loan the accused promised to return the same within one month. In order to discharge the above said liberty, the accused issued a post-dated cheque no. 174301 dt. 25.03.2006 for Rs. 70,000/- drawn on Dena Bank, Hari Nagar, New Delhi from the bank account no. 13184, in favour of the complainant and assured the complainant that the same will be honored as and when presented in the bank. Copy of the said cheque is ExCW1/1. Page 2 of 19
Ranbir Singh Vs. Ranu Bala Giri & others On the assurance of the accused, the complainant presented the said cheque in his bank for clearance i.e State Bank of Patiala, Shiv Nagar, New Delhi but the same was received dishonored with the remarks " Account Closed" as mentioned in the memo dated 30.03.2006. Copy of the said cheque return memo is ExCW1/2. The complainant approached the accused and apprised him about the dishonoring of the said cheque and demanded the cheque amount but the accused failed to make the same. Thereafter, under the compelling circumstances, the complainant was left with no other option and served a legal notice dated 20.04.2006 through registered post and UPC receipts dated 20.04.2006 to the accused u/s 138 NI ACT as amended upto date whereby the complainant requested the accused to pay the dishonored cheque amount within 15 days from the date of receipt of the above said notice which was served upon the accused as per the registered post and UPC. But despite the receipt of the notice, the accused failed to make the payment till the date of filing of the present complaint. Copy of the legal notice, two postal receipts and two UPC receipts are ExCW1/3 to ExCW1/5 respectively. On failure of the accused to make the payment within the stipulated period, the present complaint was filed.
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Ranbir Singh Vs. Ranu Bala Giri & others
3. After hearing the arguments on summoning, sufficient grounds were made out against the accused u/s 138 NI Act and process was issued against him. On his appearance, the accused was admitted to bail.
4. Notice U/s 251 Cr.P.C was served upon the accused vide order dt. 11.12.2006 to which the accused pleaded not guilty and claimed the trial.
5. Complainant examined himself in his evidence and he adopted his pre summoning affidavit as the post summoning affidavit, which is ExCW1/A where he reiterated the same facts and also examined Sh. Vinod Taneja as CW2 During the cross examination of CW1 he deposed that.............. it is correct that the accused had not talked to his lawyer on phone on 13.12.2010. The accused is an orthopedist. He had talks with the accused from his mobile phone 9212022618 on his mobile phone. At this stage, witness took out his mobile phone to give the mobile number of the accused which was feeded in the mobile of the complainant i.e. 9810042942. It is wrong to suggest that he had never talked to the accused telephonically. It is wrong to suggest that he had never had any connection with the accused whatsoever. It was at about 6:00 to 7:00 P.M. in the evening when Page 4 of 19 Ranbir Singh Vs. Ranu Bala Giri & others he paid the amount of Rs. 5,00,000/- to the accused on 20.11.2010. He had not withdrawn the said amount from any of the bank accounts maintained by him. He was a cable operator doing business in the name of M/s Raja Cables at Vijay Nagar. At about 7 to 8 years back, he suffered a pain in his leg at which he visited the accused and thereafter, they got acquainted as friends. Thereafter, he had never got any treatment for the said pain in his leg. Voluntarily stated, he is keeping well. Voluntarily stated, that his brother in law was also treated by the accused. It is wrong to suggest that neither he nor his brother in law or any family member ever took any treatment from the accused. He could not produce any document to establish any treatment taken from the accused either by him or any of his family members/relatives. He had visited the clinic of the accused at Kamla Nagar about 7 to 8 years back to take the said treatment for his leg pain. He did not know any Ramesh Dhingra. It is wrong to suggest that he is prosecuting the present complaint as proxy complainant for said Mr. Ramesh Dhingra or that the cheque, obtained by Ramesh Dhingra signed in blank from the accused, was handed over to him by Ramesh Dhingra. He filed his income tax return regularly. He had already filed his income tax return for the financial year 01.04.2010 to 31.03.2011. The said income tax return does not reflect the present amount of Rs. 5,00,000/- . The said Page 5 of 19 Ranbir Singh Vs. Ranu Bala Giri & others ITR also does not reflect any source from where he had acquired the said amount of Rs. 5,00,000/-. It is wrong to suggest that the accused does not owe him any amount or that the present case was falsely instituted by him against the accused at the behest of Ramesh Dhingra of Hudson Lanes, Delhi. It is further wrong to suggest that he had agreed to file the present false case in return of monetary consideration promised to him by said Ramesh Dhingra on recovery. It is further wrong to suggest that he had no source of such huge amount of Rs. 5,00,000/- within his means on the said date or at that of relevant time. It is further wrong to suggest that he had fraudulently concealed his connection with said Ramesh Dhingra. It is wrong to suggest that he is deposing falsely. He can not say as to who had filled up the entire writing on the cheque Ex. CW1/1 except the signatures. Voluntarily stated, employee of the accused came into his office and handed over him the cheque in question which was already filled up but he did not know in whose handwriting. It is wrong to suggest that the cheque was never handed over to him by any of the employee of the accused or that the said cheque was obtained by him from said Ramesh Dhingra.
6. All the incriminating evidence had been put to the accused to which he Page 6 of 19 Ranbir Singh Vs. Ranu Bala Giri & others replied in his statement u/s 313 Cr.P.C that she never obtained any loan from the complainant. She further said that she lost the cheuqe in question along with whole cheque book and regarding which she also sent an intimation to the bank for closing the bank account and it was closed after a week. She also denied having received the legal demand notice. She further stated that she even did not know the complainant. She has also stated that she wanted to lead defence evidence.
7. Accused examined herself in his defence evidence as DW1 and Sh. Gaurav Gossain as DW2. She stated that she did not know the complainant Sh. Ranbir Singh, of this case and had never taken any loan from the complainant. The cheque in question only bears my signatures and rest of the writing thereon is not of mine. She further stated that she had to take a car on finance for which she had to give certain cheques to the financier and she had signed few cheques in he cheque book which she lost on 15.03.2005. She immediately informed to her banker through a letter dt. 11.01.2013 Ex CW2/D1 and also requested her banker to close the account and accordingly her account was closed. She had never received any legal notice from the complainant prior to filing of the present case. The case of the complainant against her is false and she was not legally indebted towards the Page 7 of 19 Ranbir Singh Vs. Ranu Bala Giri & others complainant in any manner whatsoever............
During his cross examination she has stated that he paid back the loan amount of Rs.5 Lacs to Mr. Ramesh Dhingra but he refused to return the present cheque to him. He is an Income Tax Payee and regularly filed income tax return with the concerned department. He had shown the transaction relating to Sh. Ramesh Dhingra in his income tax return. He had never served any notice or letter upon Mr. Ramesh Dhingra. Voluntarily stated that since they were negotiating and he was busy in his daughter's marriage and since two installments were still due towards Mr. Ramesh Dhingra. Right now there was no case u/s 138 NI Act is pending against him in any court at that time. He is not aware whether any case u/s 138 NI Act is pending against his wife in any court. He had received the summon of another case which was filed against him u/s 138 NI Act. He received only one summon of another case. The record maintained by him in his clinic always remained with him and the same are not deposited anywhere with any Government Authorities. He had not filed any criminal complaint against the present complainant or Ramesh Dhingra till date. He had not submitted any record pertaining to the employee in his clinic. Since he had only one employee so there was no need to file any detail of the employee with the concerned department. He Page 8 of 19 Ranbir Singh Vs. Ranu Bala Giri & others did not keep the copy of the prescription slip with them. Voluntarily stated, the name of the patients and amount received was maintained in register. It is wrong to suggest that he had never given the present cheque to the Sh. Ramesh Dhingra as a security of repayment of loan amount. It is wrong to suggest that he knew the complainant personally and further wrong to suggest that he had personal relation with the complainant. It is wrong to suggest that he had taken the loan of Rs.5 Lacs from the complainant on 20.11.2010. It is wrong to suggest that he had sent the present cheque through one of his employee to the complainant. Voluntarily stated, he never sent any cheque to the complainant through any person. It is wrong to suggest that he had not replied to legal notice since he obtained the loan from the complainant. It is wrong to suggest that he had taken contradictory stands in his statement u/s 313 Cr.P.C and his examination in chief that day before the court. It is wrong to suggest that he had a male employee in his office during the relevant period. It is wrong to suggest that he is deposing falsely or liable to pay any amount. It is wrong to suggest that he had never given blank signed cheque to Ramesh Dhingra. It was wrong to suggest that he is deposing falsely.
8. I have gone through the evidence, written submissions and heard the Page 9 of 19 Ranbir Singh Vs. Ranu Bala Giri & others final arguments advanced by both the parties at length. Ld. Counsel for the accused has relied on the following case laws namely : M/s Kumar Exports v. M/s Sharma Carpets 2011 ACD 427 (SC), John Fernandes v. Noorjahan Khan Anr. 2011 ACD 370 (BOM), K. Rajamanickam v. P. Arumugam 2011 ACD 291 (MAD), Amzad Pasha v. H. N. Lakshmana 2011 ACD 365 (KANT), Sanjay Mishra vs Kanishka Kapoor @ Nikki & Anr. 2009 (2) DCR 244 and Ld. counsel for the complainant has filed written submissions citing some case laws and I have perused the same also.
9. The case laws material for the present facts and circumstances are discussed below.
In case entitled as "Rangappa vs Sri Mohan" [(2010), 11, Supreme Court Cases 441] where the Hon'ble Supreme Court of India, held that the bare denial of the passing of the consideration apparently does not appear to be any defence. To disprove the presumptions, the defendant has to bring on record such facts and circumstances, upon consideration on which the Court may either believe that the consideration does not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that Page 10 of 19 Ranbir Singh Vs. Ranu Bala Giri & others it does not exist and it was held that there is an initial presumption, which favours the complainant in the sense that the presumption mandated by Sec. 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. Since the accused did admit that the signatures on the cheques was his, the statutory presumption comes into play and same has not been rebutted even with regard to the material submitted by the complainant.
10. In the judgment "Hiten P. Dalal vs. Bratindra Nath Banerjee" AIR 2001 (SC) 3897 it was held that presumption under NI Act is a presumption of law as distinguished from a presumption under a 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 presumptions of innocence because by the later all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Obligation on the prosecution may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of non-existence of a presumed fact.
11. In the judgment entitled "Pradeep Aggarwal & Ors vs Y. K. Goel", Page 11 of 19 Ranbir Singh Vs. Ranu Bala Giri & others Cr. M. C. 66/2009 (Hon'ble High Court of Delhi), where it was held that complaints u/s 138 NI Act is a summary trial and accused should first disclose his defence and merely saying "He is innocent" or "He plead not guilty" will not be sufficient and onus is on the accused to show that no offence could have been deemed to be committed by him for some specific reasons and defences.
It was further held that u/s 138 NI Act, there is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent.
12. In the judgment "Mosaraf Hossain Khan vs Bhagheeraha Engg. Ltd." AIR 2006 S. C. 128(2006), it was held that the object of the provision of section 138 NI Act is that for proper and smooth functioning of business transaction in particular, use of cheques as negotiable instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. Dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Page 12 of 19
Ranbir Singh Vs. Ranu Bala Giri & others
13. In the judgment "K.N. Beena Vs. Muniyappan, AIR 2001 SC 2895, where it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not done.
14. From the material on record, it is well established that signatures on the cheque in question is of the accused. This fact has been admitted by the accused, in his statement under section- 313 Cr.P.C, examination-in-chief and cross examination. Accused in his statement under section- 313 Cr.P.C also admitted having received the legal demand notice.
The defence of the accused mainly has been that he took the loan from Mr. Ramesh Dhingra. He had issued the cheque in question to Mr. Ramesh Dhingra and he had repaid the loan to Mr. Ramesh Dhingra. The accused has also stated that he does not know the complainant and the complainant has misused the cheque in question given by him to Mr. Ramesh Dhingra. He has also stated that there were many common friends of him and the complainant who were aware about this fact. However, the accused has not examined the said Mr. Ramesh Dhingra or any other Page 13 of 19 Ranbir Singh Vs. Ranu Bala Giri & others common friend in his defence to prove his case or to falsify the case of the complainant. It is pertinent to mention here that accused has not filed any complaint to the police or any complaint in any court of law regarding the alleged misuse of cheque by complainant. In the cross-examination of the accused, he has also submitted that he did not file any complaint against Mr. Ramesh Dhingra as they were negotiating as he was busy in his daughter's marriage and two installments were still due towards Mr. Ramesh Dhingra. He further deposed that he did not file any criminal complaint against the complainant or Mr. Ramesh Dhingra till date. Hence, the defence raised by the accused does not appear to be probable in view of the aforesaid facts and circumstances. The accused has not even bothered to reply to legal notice issued by the complainant and on this count also an adverse view is liable to drawn against accused. The burden to prove that the cheque in question was not issued for debt or liability was on the accused, which he failed to prove in the present case.
15. I have highest regard for the case laws cited on behalf of the accused, namely M/s Kumar Exports v. M/s Sharma Carpets 2011 ACD 427 (SC), John Fernandes v. Noorjahan Khan Anr. 2011 ACD 370 (BOM), K. Rajamanickam v. P. Page 14 of 19 Ranbir Singh Vs. Ranu Bala Giri & others Arumugam 2011 ACD 291 (MAD), Amzad Pasha v. H. N. Lakshmana 2011 ACD 365 (KANT), Sanjay Mishra vs Kanishka Kapoor @ Nikki & Anr. 2009 (2) DCR
244. However, the same have been pronounced in different context and is of no help to the accused.
16. Hence, the accused has miserably failed in substantiating his defence and showing that there is no liability of the accused towards the complainant. The complainant successfully proved all the essential requirements of sec 138 of the Act i.e. :
a) The cheque for an amount is issue by the accused to the complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability by the accused.
c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque. Page 15 of 19
Ranbir Singh Vs. Ranu Bala Giri & others
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
17. Under the aforesaid discussion, accused Sh. Ravi Gupta is found guilty for offence U/s 138 NI Act and he is consequently convicted for the offence u/s 138 of Negotiable Instruments Act.
Announced in open court (Deepika Singh)
today i.e. on 10.12.2012 MM-01, NI Act, North, Delhi
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Ranbir Singh Vs. Ranu Bala Giri & others
IN THE COURT OF MS. DEEPIKA SINGH, METROPOLITIAN
MAGISTRATE-01, N.I. ACT, NORTH, DELHI
CC No. 1168A/10
Sh. Ranbir Singh
S/o Sobha Singh
Residence of G-172, IInd Floor,
G-Block, Hari Nagar,
Delhi.
....................Complainant
vs.
1. Ms. Renu Bala Giri
W/o Sh. Nath Giri
2. Sh. Gaurav Giri,
S/o Sh. Nath Giri
IInd Floor, Janak Puri,
New Delhi-110058.
............................Convicts
ORDER ON SENTENCE :
05.02.2013
Present : Complainant in person.
Both the convicts in person along with Ld. Counsel Sh. Suresh Sharma.
Arguments heard on sentencing.
Ld. counsel for the convicts has argued that convict Ms. Renu Page 17 of 19 Ranbir Singh Vs. Ranu Bala Giri & others Bala's husband has undergone kidney transplant operation. Her husband is confined to bed for past four year, and she has the responsibility of maintaining the family. Convict Gaurav is doing a private job and earning very less and is also contributing to support his family. Both the convicts have been bonafide throughout in their conduct before the court, hence lenient view should be taken towards them.
Since the cases of dishonoring of the cheques are on high rise in the society, therefore, court is not inclined to take lenient view and release the convicts under Probation of Offenders Act as it would not be having any deterrent effect.
Almost seven years have elapsed since the cheque was dishonored and the same has yet not been repaid to the complainant.
Keeping in view this conduct of the convicts, no leniency ought to be granted to them. The object of Section 138 N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. It may also be noticed that when this offence was inserted in the statute in 1988, it provided for imprisonment upto one year which was revised to two years following the amendment to the Act in 2002, which makes it quite evident that the legislative intent to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation.
After hearing the arguments, court is of the considered opinion Page 18 of 19 Ranbir Singh Vs. Ranu Bala Giri & others that convicts Ms. Renu Bala and Mr. Gaurav Giri are sentenced to simple imprisonment for three months each and they are further liable to pay a compensation of Rs. 1,00,000/-(Rs. One lac only) to the complainant within two months from today i.e.05.02.2013 failing which, they will be liable to further simple imprisonment of two months each.
At this stage, Ld. Counsel for the convicts have filed an application for suspension of sentence, so that he can file an appropriate appeal before the appropriate court. Hence convicts are admitted to bail for 30 days on furnishing bail bond in the sum of Rs.25,000/- along with one surety of like amount.
Bail bonds furnished. Accepted.
Convicts are admitted to bail till the expiry of 30 days.
Come up before this court on 08.03.2013. Copy of the judgment and order on sentence is given free of cost to the convicts.
Announced in open court (Deepika Singh)
today i.e. on 05.02.2013 MM-01 NI Act / North / Delhi
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