Delhi District Court
Asha Rani Harjai vs . Bhupinder Kaur Cc No. 6831/2017 Page ... on 29 June, 2018
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CC No. 6831/17
Asha Rani Harjai
W/o Sh. Harish Kumar Harjai
R/o WZ 139/10, 1st Floor,
Gali No. 12, New Mahavir Nagar,
New Delhi-18
............Complainant
Versus
Bhupinder Kaur
W/o Sh. Ravinder Pal Singh
R/o WZ C/15A, 2nd Floor,
Gali No. 9, New Mahavir Nagar,
New Delhi-18 .............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 13.04.2017
(4) Date of conclusion of arguments: 21.05.2018
(5) Date of Final Order : 29.06.2018
(6) Final Order : Convicted
Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 1 of 11
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that she and the accused had close family relations being neighbours. It is alleged that in June, 2016, complainant advanced friendly loan of amount of Rs. 8,00,000/- in cash to the accused for a period of six months. The loan amount was arranged by complainant by taking loan against her gold from Muthoot Finance, amount obtained from LIC Policy and from her savings. However, despite expiry of six months, accused failed to return the amount, and on repeated demands of complainant, the accused issued three cheques to the complainant including the two cheques in question, drawn on Kangra Cooperative Bank Ltd., C-2, Community Centre, Pankha Road, Janakpuri. The cheques in question i.e. cheque no. 574868 for a sum of Rs.1,00,000/- and cheque No. 574869 for a sum of Rs.2,00,000/- were presented by the complainant in his account maintained at State Bank of India, Vikaspuri, Delhi, which were both returned with the remarks "Drawers signatures differs" vide bank return memos dated 14.02.2017. The third cheque i.e. cheque No. 574897 for a sum of Rs.3,00,000/- was also presented by the complainant in her bank, however, was returned by the bank as the signature's ink was spread. Thereafter, complainant served a legal notice dated 06.03.2017 upon the accused through her counsel demanding the said amount. Reply dated 18.03.2017 to the legal notice was sent by the accused whereby she denied liability of Rs.8,00,000/- towards the complainant and stated that she had taken only a loan of Rs.3,00,000/- from the complainant which had already been repaid. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In her pre-summoning evidence, complainant examined herself on affidavit Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 2 of 11 Ex. CW-1/A. She reiterated the contents of complaint and placed on record, original cheques bearing no. 574868 and 574869, both dated 06.02.2017 drawn on Kangra Cooperative Bank Ltd., C-2, Community Centre, Pankha Road, Janakpuri as Ex. CW-1/1 and Ex.CW1/3 respectively, cheque returning memos dated 14.02.2017 as Ex. CW-1/2 and Ex.CW1/4 respectively, loan acceptance letter from Muthoot Finance as Ex.CW1/5 (OSR), legal demand notice dated 06.03.2017 as Ex. CW-1/6, reply dated 18.03.2017 to legal demand notice as Ex.CW1/7.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 05.07.2017 to which She pleaded not guilty and claimed trial. She stated that she had taken a loan of Rs.3,00,000/- from the complainant. Out of the same, she paid Rs.1,20,000/- in cash and a necklace of Rs.50,000/- to the complainant. She stated that she is ready and willing to pay remaining amount of Rs.1,30,000/- to the complainant. She admitted her signatures on the cheques in question, but stated that the other contents were not in her handwriting. She accepted receipt of legal notice.
5. The accused moved an application to cross-examine the complainant. Complainant as CW-1 was duly cross examined by the accused. A document i.e. a diary page was also exhibited in cross examination of complainant as Ex.CW1/D1 (OSR). No other witness was produced by the complainant and she closed her evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to her to which accused reiterated the reply given by her in the notice U/s 251 Cr.P.C. She further stated that both the cheques in question were given as blank signed cheques for security purpose to the complainant at the time of taking loan and the same has been misused by the complainant. She was not aware of any loan taken by the complainant from Muthoot Finance Ltd. Accused preferred not to lead any defence evidence.
Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 3 of 11
6. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. The testimony of CW-1 is corroborated by the loan acceptance letter issued by Muthoot Finance Ltd. which show the sources of funds for present loan. It was argued that accused admitted her signatures on the cheque in her plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in her statement U/s 313 Cr.P.C. It is stated that in her reply to legal demand notice, accused stated that she had repaid entire loan amount of Rs.3,00,000/-. However, in reply to notice U/s 251 Cr.P.C and in her statement U/s 313 Cr.P.C. She state that amount of Rs.1,30,000/- was pending towards the complainant. There is contradiction in both versions. No receipt or documents for alleged necklace of Rs.50,000/- has been produced by accused. The amount of Rs.1,20,000/- received by the complainant from accused is in lieu of interest of the loan taken from Muthoot Finance for the purpose of accused There is no explanation that if cheques were given as security cheques, why none were demanded back upon payment of Rs.1,70,000/- out of total alleged loan amount of Rs.3,00,000/-. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
7. Per contra, Ld Counsel on behalf of the accused reiterated the submissions made by the accused in her statements before the court i.e. accused had taken a loan of Rs.3,00,000/- from the complainant. Out of the same, she paid Rs.1,20,000/- in cash and a necklace of Rs.50,000/- to the complainant. Accused is ready and willing to pay remaining amount of Rs.1,30,000/- to the complainant. It was argued that repayment of Rs.1,20,000/- is adequately reflected in diary page Ex.CW1/D1 which is also admitted by the complainant. He also argued that complainant in her cross examination stated that she had given the loan to the accused in May, 2016. However, the loan from Muthoot Finance has been Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 4 of 11 accepted in June, 2016. It was argued that same is the material contradiction which casts doubts for testimony of complainant. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove her case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
8. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 5 of 11 Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"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".
11. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. In the present case, accused has admitted her signatures on the cheques in question, in the notice U/s 251 Cr.P.C and in her statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 6 of 11 presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
13. In the present case, the complainant by way of an affidavit led her own evidence testifying that cheques was issued to her in part discharge of the total liability of Rs. 8,00,000. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record. Complainant also placed on record copy of loan acceptance letter from Muthoot Finance as Ex.CW1/5 (OSR) showing loan of Rs. 5.25 lacs i.e. amount arranged from Muthoot Finance for giving loan to accused. The defence taken by the accused is that she had taken a loan of Rs. 3,00,000/- only from the complainant, out of which she repaid Rs.1,20,000/- in cash and gave a necklace of Rs. 50,000/- to complainant. She admitted that amount of Rs. 1,30,000/- remains pending towards complainant. It is stated that the cheques were given as blank signed cheques for security purpose at time of taking loan from complainant. However, it is also pertinent to advert to reply to the legal notice Ex.CW-1/7 wherein accused took a contrary stand and stated that she had repaid the entire loan amount of Rs. 3,00,000/- taken from the complainant and the cheques in question were misused.
14. In support of her defence version taken at trial, the accused produced a Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 7 of 11 diary page in cross examination of complainant as Ex.CW1/D1 (OSR) which reflected several dated entries of different amounts totaling to Rs. 1,20,000./-. The complainant was cross-examined on the same and admitted that she had received an amount of Rs.1,20,000/- from the accused. However she stated that the same pertained to interest of Muthoot Gold Loan, which the accused paid to her. The relevant extract of the cross-examination dated 16.10.2017 is as under:
".....At this point, witness is shown one diary page and same is Ex CW 1/D1.(OSR) and asked the following question:
Q: Does the document bears your signature at point A? A: Yes. The same is my signature. Vol. The amount written in said diary pertains to the interest of Muthoot Gold Loan, given by the accused to me. Q. Did you received the amount of Rs. 1.2 Lakhs ? A: Yes. The amount of Rs. 1.2 Lakhs was received in total by our family as interest of Muthoot Gold Loan."
It is pertinent to note that the diary page Ex.CW1/D1 (OSR) is a record maintained and produced by the accused. Though the complainant offered her explanation regarding the amount received from accused, being for interest, the accused did not put any suggestion to the complainant in her cross-examination to deny the same. Nor did the accused enter the witness box or produce any evidence of her own to prove the contents of said document that the amount of Rs. 1,20,000/- was paid in lieu of the principal amount of the loan and not for interest. Bare perusal of this document produced by accused does not show any mention or endorsement regarding the purpose for which it has been received.
15. Furthermore the diary entries as per Ex.CW1/D1 (OSR), show the last payment was made to complainant on 31.12.2016. However the date of the cheques in question are 06.02.2017 i.e. subsequent to the date of last payment. Therefore it is difficult to postulate that the liability covered by the cheques in question was discharged vide prior payments as contained in diary entries. Here also it is relevant to consider the defence of the accused that the cheques in question were given as blank signed cheques for security purpose at time of giving loan to complainant and later misused by complainant. However perusal of record reveals that the accused did not put any suggestion to complainant in her Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 8 of 11 cross-examination that cheques in question were security cheques. The accused did not lead any evidence in defence. The decision of Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crml. Appeal No. 1136/2010, date of decision 21.09.2010, can be referred to here, wherein it was held:
"It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof."
The law laid down in above judgment is squarely applicable in present case. In present case also, the accused has not led any evidence in support of her version of security cheque. A simple bald averment of security cheque in notice under section 251 Cr.P.C and statement under section 313 Cr.P.C., in absence of any material to substantiate the same, either through cross- examination of complainant or defence evidence, is not sufficient to dislodge the statutory presumptions. Moreover, if cheques were given as security cheques by accused and she made part repayment of the loan amount, there is no explanation as to why she did not ask for return of any of her cheques from the complainant. Also, if the cheques were misused, there is no explanation that when the cheques got dishonored, why accused did not file any complaint or take any legal recourse against the complainant. Hence the plea of security cheque is not credible.
16. Even otherwise, if for the sake of argument, it is considered that the Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 9 of 11 accused gave blank signed cheques to the complainant, once accused has admitted her signatures on the cheques she cannot escape his liability on the ground that the same has not been filled in by her, or that signatures on cheque and the contents are filled in different writings and inks. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
17. Moreover the accused has failed to substantiate her version regarding giving a necklace of Rs. 50,000/- to the complainant as repayment and did not lead any evidence in defence or produce any document to establish the same. Therefore this part of defence of repayment, taken by accused, is also not credible.
18. It is also the contention of the Ld. Counsel for accused that there is material contradiction in evidence of complainant, as in her cross examination, she stated that she had given the loan to the accused in May, 2016. However, the loan from Muthoot Finance has been accepted in June, 2016. However this contention does not find substance with the court as both in the complaint and examination-in-chief, the loan is stated to be given by complainant to accused in Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 10 of 11 June 2016, and the statement made by complainant in her cross-examination that loan was given in May 2016 appears only to be a minor contradiction attributable to lapse in memory due to passage of time and otherwise not relevant. Even otherwise, complainant was never confronted with this contradiction to explain the same, nor was any suggestion put to complainant in cross-examination regarding the same.
19. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The accused did not deny the factum of taking loan from the complainant, however she could did not produce any evidence to cast reasonable doubt on version of complainant, regarding the quantum of the loan. The accused also took contrary stands regarding repayment of loan, in reply to legal notice and at the trial, and failed to show repayment of the loan amount at trial. The complaint disclosed the existence of a legally enforceable debt or liability and the accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any defence evidence. There is sufficient material on record to conclude that complainant has successfully proved her case beyond reasonable doubt.
20. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
21. Let the convict be heard on quantum of sentence.
22. Copy of Judgment be supplied to the convict free of cost.
MRIDUL Digitally signed by
MRIDUL GUPTA
GUPTA Date: 2018.06.29
16:42:27 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 29th June 2018 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Asha Rani Harjai Vs. Bhupinder Kaur CC No. 6831/2017 Page no. 11 of 11