Delhi District Court
M/S Citizen Cooperative Bank Ltd vs . on 10 November, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )04 DWARKA COURT, NEW DELHI
M/s Citizen Cooperative Bank Ltd.
Vs.
Raja Ram
C.C. No. 716/14
U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 05.09.2013
b) Name of Complainant M/s Citizen Cooperative Bank Ltd. through its authorized representative Sh. P.C. Joshi
c) Name and address of the Rajaram S/o Sh. Julamdhari R/o accused : N25, BS5, Lal Bagh, Azadpur, Delhi.
d) Offence complained of: U/s 138 N.I. Act e) Plea of accused: Pleaded not guilty f) Final order: Convicted g) Date of order: 10.11.2014 h) Date of institution of case: 25.09.3013 i) Date of decision of case: 10.11.2014
CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 1 of 6 2 Brief facts and reasons for decision of the case:
1. The present complaint is instituted by M/s Citizen Cooperative Bank Ltd. ("the complainant") against Rajaram ("the accused") alleging that accused had taken a personal loan of Rs.
50,000/ from the complainant. It is further alleged that in discharge of liability emanating from the above loan, the accused issued the cheque bearing no.826681 dated 26.05.2013 in sum of Rs.45,500/ drawn on Punjab National Bank (Ex.CW1/2). On presentation, the the said cheque was dishonoured for reasons and remarks 'Funds Insufficient' vide bank memo dated on 04.07.2013 (Ex.CW1/3). The complainant demanded the cheque amount via legal demand notice dated 26.07.2013 (Ex.CW1/4). The legal demand notice was dispatched on 27.07.2013 (postal receipts & Track reports are Ex.CW1/5 to Ex.CW1/10). It is alleged that the accused did not make the payment of cheque amount despite service of notice. Thus, the present complaint has been filed.
2. During the complainant evidence, Sh. P.C. Joshi was examined as sole witness. He filed his evidence by way of affidavit Ex.CW1/A. CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 2 of 6 3 The documents additionally relied upon by the complainant are; Board Resolution in favour of AR Ex.CW1/1, the loan application form and bond are Ex.CW1/11 & Ex.CW1/12 respectively. The complainant's witness was cross examined by ld. counsel for the accused.
3. During the statement u/s.313 CrPC, the accused though admitted the availing of loan from the complainant but denied the rest of the case. As per the accused, the impugned cheque was given for purpose of security alongwith 20 other cheques at the time of availing loan. Since the accused opted not to lead any defence evidence thus, the opportunity was closed.
4. At a later stage, ld. counsel for the accused moved an application u/s.311 CrPC for summoning Ashok Kumar as a witness. The application was allowed and Ashok Kumar was examined u/s. 311 CrPC. During his statement, he deposed that accused was his childhood friend. Accused had handed over some cheques to him to hand over the same to the complainant bank. Since the accused was CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 3 of 6 4 also liable to pay some amount to him, therefore he got encashed one of these cheques for sum of Rs.35,000/.
5. I have heard the arguments for the counsels appearing on behalf of both the parties.
6. The signatures upon the impugned cheque are admitted by the accused. Though rebuttable but the presumptions regarding date of issuance and legally enforceable liability are in favour of the complainant. The legal position is clear on the point that the accused can either establish his defence by producing its own witnesses / documents or by discrediting the complainant's witness.
7. The only defence pleaded by the accused is that the impugned cheque was issued for purpose of security alongwith 1820 other cheques. The story is patently false because if somebody is issuing security cheque then this purpose can be served by even a single cheque. Why the need of issuing 20 security cheques would arise. CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 4 of 6 5
8. As far as testimony of Ashok Kumar is concerned, neither he has deposed that the 1820 cheques handed over by the accused to him were security cheques nor he has stated that impugned cheque is one of them. Ashok Kumar admitted that accused owed some liability against him, therefore he got encashed a cheque for sum of Rs.35,000/ from those cheques. Firstly, this witness has admitted that he is childhood friend of the accused, thus the possibility cannot be ruled out that he is a procured witness and he may give concocted testimony in favour of the accused. Secondly, he has not placed any documents on record to show that he has encashed a cheque of Rs.35,000/ from the above 1820 cheques. Finally, even if he is believed, then it was an independent transaction between Ashok Kumar and the accused. In my considered opinion, it has no bearing on the present matter. This story narrated by the Ashok Kumar nowhere corroborates the security theory of the accused.
9. The dishonour of impugned cheque is not disputed and proved by bank memo Ex.CW1/3. The legal demand notice was sent CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 5 of 6 6 on the correct address of the accused. The correctness of address is not disputed because the accused has mentioned the same address in his bail bonds furnished before the court. Thus, the service of demand notice can be presumed under the mandate of section 27 of General Clauses Act.
10. Thus, all the ingredients of offence u/s.138 N.I. Act are proved against the accused. He stands convicted accordingly. Let the copy of this judgment be supplied to the accused. (Announced in the open court on 10.11.2014) This Judgment contains 6 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.716/14; M/s Citizen Cooperative Bank Ltd. Vs. Rajaram Page 6 of 6