Delhi District Court
Deen Mohammed vs . Rehana on 22 January, 2019
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
DEEN MOHAMMED VS. REHANA
CC No. 461372/16
U/s 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 461372/16
(2) Name of the complainant : Sh. Deen Mohammad,
s/o Sartaj Mohammad,
R/o 61C, Kalu Sarai, N. Delhi-16.
(3) Name of the accused, : Smt. Rehana,
parentage & address w/o Sh. Ehsaan,
R/o H. No. A-33, Pul Pehladpur,
Suraj Kund Road,
New Delhi.
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Convicted
(7) Date of Institution : 23.06.2016
(8) Date on which reserved for
judgment : 14.01.2019
(9) Date of Judgment : 22.01.2019
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the complainant purchased a plot i.e. B-88, Kharak Riwara, Chandanhalla, Chattarpur, New Delhi(herein after called as property in question for the sake of convenience and brevity) from his aunt Mrs. Meena for a total consideration Rs. 5,50,000/- in the month of May, 2014 but when complainant went to take the Deen Mohammed Vs. Rehana CC No. 461372/16 Page 1 of 14 2 possession of the plot, Mrs. Meena refused to hand over the possession of the plot to complainant and even the police officials refused to lodge FIR against Mrs. Meena. After sometime, Mrs. Meena (mother of accused) as well as accused agreed to settle the matter and agreed to return an amount of Rs. 6.50 lacs and accused assured the complainant to pay the amount in November 2015 in case Mrs. Meena failed to make the payment and she will make the payment within five months in two installments to the complainant and accused will pay Rs. 3,00,000/- as first installment and Rs. 3,50,000/- as second installment to the complainant. On 05.02.2016, accused paid Rs. 2.40 lacs in cash as first installment to the complainant with assurance to make the remaining payment in next installment. Thereafter, as second installment, accused issued cheque bearing no. 005749 dated 05.04.16 for Rs. 3.50 lacs drawn on The Kangra Cooperative Bank Ltd., as part payment to the complainant which on presentation was dishonoured for reason "Funds Insufficient" vide memo dated 12.04.2016 and again the same reason vide memo dated 28.04.16. Thereafter, complaint sent a legal notice dated 11.05.16 by way of speed post upon the accused which was duly received by the accused and despite that payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the instant complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex. CW-1/1 was filed by the complainant. In his affidavit of evidence Ex.CW1/1, the complainant reiterated all the averments made in his complaint and relied on documents are original cheque in question Ex. CW-1/A, its return memos Ex. CW-
Deen Mohammed Vs. Rehana CC No. 461372/16 Page 2 of 14 3 1/B & Ex. CW-1/C, copies of legal notice Ex. CW-1/D, postal receipt Ex. CW-1/E and the tracking report Ex. CW-1/F. The complaint is Ex. CW-1/G. 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 25.06.2016.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 22.03.2017 to which the accused pleaded not guilty and claimed trial. Accused stated that complainant is her cousin brother. There was some financial transaction between her mother and complainant. Accused further stated that she has given the blank signed cheque to the complainant through her mother as surety for her mother and she has not handed over the cheque to the complainant and she had handed over the same to her mother as her mother had asked her to stand her surety. Accused stated that she has no legal liability to pay the cheque amount to the complainant. Her mother offered the complainant to return her cheque and to take cheque of her mother as security but the complainant refused the offer.
4. Thereafter, the oral request of accused u/s 145(2) N I Act to cross examine complainant and his witnesses was allowed vide order dated 22.03.2017 and the accused was given an opportunity to cross examine the complainant and his witnesses.
Complainant was duly cross examined by Sh. K.Z. Khan, Ld. Counsel for the accused. No other complainant witness was produced by the Deen Mohammed Vs. Rehana CC No. 461372/16 Page 3 of 14 4 complainant. Thereafter, CE was closed vide order dated 29.11.2017.
5. Thereafter, the plea of the accused was recorded U/s 313 CrPC r/w 281 CrPC on 11.01.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that she does not know about the transaction between complainant and Mrs. Meena I.e her mother. Accused denied that she alongwith her mother had entered into any agreement with the complainant to return an amount of Rs. 6.50 lacs whereby accused assured to pay the amount in November 2015 in case the mother of accused fails to make the payment. The accused further denied that she has paid any amount of Rs. 2.40 lacs on 05.05.16 as alleged in the complaint. Accused further stated that she has not issued the cheque to the complainant and she had given blank signed cheque to her mother. Accused further stated that she has not received the legal notice and she had given blank signed cheque to her mother and she does not know how the cheque came into the hands of complainant and she has no legal liability to pay the cheque amount to the complainant.
Accused further expressed her desire to lead defence evidence.
6. Thereafter, matter was listed for DE. Accused examined her mother Smt. Meena as DW-1 who was duly cross examined by Sh. Shankar, Ld. Counsel for the complainant. Accused further examined her husband as DW-2 but he was not cross examined by the counsel for complainant despite opportunities being given. Therefore, the right of the complainant to cross examine DW-2 Ehsaan was closed vide order dated 01.12.2018. Thereafter, DE Deen Mohammed Vs. Rehana CC No. 461372/16 Page 4 of 14 5 was closed vide order dated 01.12.2018 and matter was fixed for final arguments.
7. Further, considering the absence of complainant since 18.09.18, the right of the complainant to address final arguments was closed vide order dated 14.01.2019.
Sh. K.Z. Khan, Ld. Counsel for accused have addressed oral arguments. By way of oral arguments, ld. Counsel for accused has reiterated the defence stated by the accused during trial and it has been further argued that accused has never handed over cheque in question to the complainant but the cheque was handed over by the accused to her mother and therefore, the complainant is not bonafide holder of cheque. It has been further argued that the complainant has failed to disclose the details of alleged payment of Rs. 5.50 lacs made by complainant to Mrs. Meena i.e. mother of accused and complainant has even failed to disclose the details of alleged meeting before Panchayat wherein the matter was settled. It has been further argued that the testimony of DWs have remained unrebutted. The facts are that the actual dispute was between mother of the accused and complainant in which accused was made escape goat and now the complainant had settled the matter with the mother of accused, that is why the complainant is not coming forward to pursue the matter. Thus, the complainant has failed to prove his case while accused has proved her defence by producing DWs. The testimony of DWs has remained unrebutted. The accused is required to show only a probable defence and accused has been able to discharge her part of burden of proof while Deen Mohammed Vs. Rehana CC No. 461372/16 Page 5 of 14 6 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, the issuance of the cheque in question and its dishonour are not in dispute. The defence raised by the accused is two fold. Firstly, the non receipt of legal notice dated 11.05.2016 Ex.CW1/D, secondly, the cheque in question was not issued to the complainant but was handed over to the mother of accused.
Now, this Court shall deal with the defences of the accused one by one.
11A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he has never received the legal notice of demand dated 11.05.2016 Ex.CW1/D. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending of the legal notice of demand.
Deen Mohammed Vs. Rehana CC No. 461372/16 Page 6 of 14 7 A2. The complainant has deposed that the legal notice of demand dated 11.05.2016 Ex.CW1/D was sent to the accused on the correct address through registered post, the receipt of speed post is Ex.CW1/E. A3. 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. A4. 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".
A5. Further, accused has nowhere disputed the factum that the address on which the legal notice was sent, is not correct address of the accused. Rather, accused has furnished bail bond on 01.02.17 mentioning the same address on which legal notice has been sent. Thus, in view of the above Deen Mohammed Vs. Rehana CC No. 461372/16 Page 7 of 14 8 discussion, this court holds that the legal notice dated 11.05.2016 Ex.CW1/D was served on the accused.
11B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. As per complainant, he entered into an agreement to sell with mother of accused /maternal aunt of complainant with respect to property at Chhatarpur for total consideration of Rs. 5.50 lacs in May 2014 but later on Mrs. Meena refused to hand over the possession of the plot to complainant. Thereafter, the mother of accused and accused settled the matter and agreed to return amount of Rs. 6.50 lacs to the complainant in two installments with the assurance that in case Mrs. Meena fails to make the payment in November 2015, accused would make the payment. On 05.02.2016, accused paid Rs. 2.40 lacs in cash as first installment and thereafter, issued cheque in question as part payment which got dishonoured.
On the other hand, as per accused, she has not given cheque to the complainant and her cheque has been misused.
B2. 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 Deen Mohammed Vs. Rehana CC No. 461372/16 Page 8 of 14 9 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).
B3. In the present case, accused has taken contradictory defence during different stages of trial. In the defence to the notice u/s 251 Cr. PC, accused had taken defence that there was some financial transaction between her mother and complainant and she had given the blank signed cheque to the complainant through her mother as surety for her mother. She further stated that she had not handed over the cheque to the complainant but to her mother as her mother had asked her to stand as surety.
On the other hand, in the plea recorded u/s 313 r/w 281 Cr. PC, she stated that she does not know about the transactions between complainant and her mother and she had not issued cheque to the complainant and she had given blank signed cheque to her mother and she did not know how the cheque came into hands of complainant.
Clearly initially the accused admitted that she issued cheque to the complainant to stand as surety for her mother and later on accused denied the same.
B4. Further, the accused has taken defence that she has no transaction with the complainant but admittedly there were transactions between complainant and mother of accused and accused handed over the cheque to Deen Mohammed Vs. Rehana CC No. 461372/16 Page 9 of 14 10 stand as surety for her mother. It is settled principle that the liability u/s 138 NI Act has to be "legal liability" and not the personal or individual liability and a cheque may be issued to discharge the liability of other person and when cheque has been issued to discharge the liability of other person, then drawer cannot escape his or her liability on the ground that he or she originally had no liability to pay.
B5. Further, accused has examined her mother as DW-1 who deposed that she had taken one blank signed cheque from her daughter i.e. accused herein on the pretext to show the cheque to complainant herein and she handed over the cheque in question to the complainant without consent of accused due to inter se dispute between DW-1 and accused and her husband. She also deposed that accused had never assured the complainant for any payment nor accused or her husband ever made any payment to complainant.
The testimony of DW-1 is completely silent about the property transactions regarding which the complainant had made the averments during trial and regarding which the accused admitted at the stage of defence to the notice u/s 251 Cr. PC that there was some financial transactions between the complainant and DW-1. Further, during cross examination DW-1 admitted that the sell and purchase talks with respect to property in question took place between parties.
B6. Further, accused has examined her husband Sh. Ahsaan as DW-2 who deposed that he had filed one complaint Ex. DW-2/A against his brothers
-in-law i.e. the brothers of accused on 14.07.16 and he also relied upon the Deen Mohammed Vs. Rehana CC No. 461372/16 Page 10 of 14 11 compromise mark -A between complainant and Mrs. Meena / DW-1. The translated copy of documents as followed:-
"To, The DCP South East District, Sarita Vihar, New Delhi.
Subject:Application against 1. Naseem, 2. Yaseen s/o late Sh. Niyamat Ali, R/o H.No. E-36, B-171, Block 32-33, Ambedkar Camp, Trilokpuri, Delhi, request to lodge FIR and to initiate legal proceedings with respect to threats to kill the applicant and implicate the applicant in false cases.
Dear Sir, With due respect that I, Ahsaan s/o Sh. Munshi Khan, R/o H.No. A-33, Pul Pehladpur, New Delhi-14 is working as driver.
That the above mentioned Naseem, Yaseen and Mohseen are my brothers-in-law and my mother-in-law is Mrs. Meena.
That My mother-in-law, Yaseen and Naseem have jointly sold out a property to Deen Mohammad and Mukamuddin, r/o 61-C, Kalu Sarai, New Delhi for total sale consideration amount Rs. 5.50 lacs and thereafter on the complain of Deen Mohammad, my mother- in-law Meena gave in writting to the police that she would return Rs. 6.50 lacs to Deen Mohammad. My mother-in-law and my brothers-in- law namely Yaseen and Naseen have sold out above said property to some other person.
That during compromise in the police station, on the saying of my mother in law, I gave a security cheque of Rs. 3.50 lacs belonging to my wife to Deen Mohammad and said cheque was handed over by my mother in law to Deen Mohammad and this settlement took place on 11.10.2015 at PS Fatehpuri which was signed by me and the copy of settlement/faisla has been annexed with this application..........
....................That I paid Rs. 2.40 lacs to Deen Mohammad on 13.10.15 on the request of my mother in law and even that amount has not been returned to me by my mother-in-law Meena and my brothers-in-law Yaseen and Naseem till date and when I demanded the return of my money, they threatened me to kill me and to falsely implicate me in false cases....................
Applicant Ahsaan, s/o Sh. Munshi, R/o H.No. A-33, Pul Pehladpur, New Delhi-44, Mob. 9899884600"
Translated copy of the said settlement/faisla mark-A is as follows:-
"To, The SHO, Deen Mohammed Vs. Rehana CC No. 461372/16 Page 11 of 14 12 PS Fatehpur Beri.
With due respect it is submitted that I have sold the flat No. B-89, Khadag Rivara, New Delhi to one Mukamudin @ Kallu without consent of my sons Mohseen and Yaseen because we wished that our whole family would reside together. But later on my son Mohseen has not given the consent. Now I have mutually settled the matter with Deen Mohammad and Mukamuddin that the amount of Rs. 6.50 lacs taken from Deen Mohammad will be returned by me in two installments to Deen Mohammad, out of which first installment of Rs. 3 lacs will be returned on 05.11.2015 and remaining second installment of Rs. 3.50 lacs will be returned by January 2016. In lieu of this the payment taken by Deen Mohammad from Mukamuddin with respect to the same plot will be returned to Mukamuddin by January 2016. This settlement/ faisla has been arrived at mutually before people of panchayat /mauseen vayakti and we will abide the same with honesty. From today onward, we have no concern with the plot no. B-89 of mauseen.
Deen Mohd. Meena Begum w/o Niyamat Ali
9868034944 r/o E-36/B, 171, Trilokpuri, N.D.
Signatures
Mukamuddin
9818696875
(name written vertically on the left side of page as follows
1. Ahesaan 9899884601
2. Aziz Khan 9873788186
3. Sakur 9899813786)"
Thus, both the documents clearly prove the case of complainant and demolish the defence of accused entirely.
B7. As far as the defence of the accused regarding issuance of blank signed cheque as security is concerned, it is immaterial. The accused has admitted that she has signed the cheque in question.
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 almost of no Deen Mohammed Vs. Rehana CC No. 461372/16 Page 12 of 14 13 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".
In the case in hand, it has been admitted by the accused that the Deen Mohammed Vs. Rehana CC No. 461372/16 Page 13 of 14 14 cheque in question was issued by her. It is not the case of the accused that her signatures on the cheque in question are forged and fabricated. Thus, once the accused has admitted her signatures on the cheque in question, the fact that other details on the said cheques are not in her own handwriting become immaterial and not of much consequence. Moreover, no reason is coming forward why complainant would fill the amount of Rs. 3.50 lacs arbitrarily when he had opportunity to fill even the higher amount in the cheque and when admittedly, the amount of Rs. 40,000/- is still pending to be payable to the complainant as per documents Ex. DW-2/A.
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 Smt. Rehana, w/o Sh. Ehsaan, guilty for the offence punishable U/s 138 N I Act. Hence, she stands convicted.
13. Let the arguments on quantum of sentence be heard on 28.02.2019. Copy of judgment be given dasti to the convict. Digitally signed by
PRABH PRABH DEEP KAUR
Announced in the open court DEEP KAUR Date: 2019.01.22
15:14:00 +0530
on 22.01.2019 (PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 14 pages and each page bears my signature.
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Deen Mohammed Vs. Rehana CC No. 461372/16
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