Delhi District Court
Brijpal vs Bhardwaj Logistics Through Its on 31 August, 2022
IN THE COURT OF MS. NIDHI BALA, METROPOLITAN MAGISTRATE,
NI ACT DIGITAL COURT, NORTH EAST DISTRICT,
KARKARDOMA COURT, DELHI
IN RE:
BRIJPAL VERSUS BHARDWAJ LOGISTICS THROUGH ITS
PROPRIETOR CHANDERBHAN
1. Complaint Case no. : 60/2021
2. Date of Institution of case : 01.02.2021
3. Name of the complainant : Brijpal
S/o. Sh. Tika Giri
R/o. F-413, Gali No. 7
Ganga Vihar, Delhi -110094
4. Name of Accused person, : M/s. Bhadraj Lositistcs
Through its proprietor
Sh. Chanderbhan
R/o. Flat No. B-804, 8th Floor, Oxy
Home, Bhopura, Uttar Pradesh- 201301
Also at
Shivtaj Enterprises
2/64, Geeta Colony,
Delhi - 110031
5. Offence complained of : Section 138 NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order : Convicted
8. Date of judgment : 31.08.2022
Digitally
signed by
NIDHI NIDHI BALA
Date:
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16:56:00
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JUDGMENT
1. Vide this judgment I am going to decide the present complaint case for an offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
2. FACTUAL BACKGROUND:-
2.1 Complainant is running business of manufacturing of sanitary goods and hardware parts at C-91, Main Gamri Road, Bhajanpura, Delhi-110053 and he is known to accused Chandrabhan, sole proprietor of Bhardwaj Logistics for more than 25 years as once they were working together in a unit producing small gas cylinders and they both are the resident of Ganga Vihar, Delhi-110094. In the month of December 2017, accused approached the complainant as he was in the need of money for his legal requirement and he demanded Rs.1,50,000/-(One lac Fifty thousand) from the complainant on 20.12.2017. Considering the request of accused and acting on his assurance that he shall return the money, complainant transferred the amount of Rs.1,50,000/- in the account of accused from the account of his wife through NEFT on the same day.
2.2 After the passage of some time, accused settled his due accounts with the complainant and he issued a cheque bearing number 236393 dated 04.12.2020 of Rs.1,50,000/-(One Lac Fifty Thousand) drawn on Indian Bank, Vikas Cine Mall, Naveen Shahdara, Delhi-110032 in favour of the complainant (hereinafter "the cheque in question") in discharge of his liability and assured the complainant that the said cheque shall be encashed on its presentation. After the assuarance of the accused, Digitally signed NIDHI by NIDHI BALA Date: 2022.08.31 BALA 16:56:06 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 2 of 16 complainant presented the cheque in question in his bank account being maintained at DCB Bank, Yamuna Vihar Branch, Delhi (within the jurisdiction of this court).
However, the said cheque in question was returned as unpaid/dishonored for the reason "FUNDS INSUFFICIENT" vide cheque return memo dated 05.12.2020. Thereafter complainant apprised the accused about dishonour of cheque in question and asked him to pay his money but accused did not pay any heed.
2.3 On 11.12.2020, Complainant sent a legal demand notice to accused through his counsel and called upon him to make the payment of the cheque amount in question within 15 days of receipt of legal notice but accused failed to make the payment of the cheque amount despite service of notice and therefore, the present complaint is filed by the Complainant against the accused for the offence under Section 138 of the NI Act.
3. On being satisfied of the prima facie ingredients of Section 138 NI Act, cognizance was taken and summons were issued against the accused and he entered his appearance alongwith his counsel on 31.03.2021 and he was admitted to bail and matter was referred to mediation on the same day and the same was settled vide mediation order dated 02.07.2021. However, after that accused neither complied with the terms of mediation settlement nor appeared before the court and coersive action had to be taken for his appearance before the court and since the accused was not inclined to comply with the terms of settlement, the matter was decided to be proceeded further on merits. On 28.01.2022 notice under Section 251 Cr.PC was framed and served upon the accused to which he pleaded not guilty and claimed trial. Accused admitted certain facts pursuant to which his statement was recorded under Section 294 Cr.P.C wherein he admitted his signature,however, denied filling up the other contents such as name, date and amount upon the cheque in question and also Digitally signed by NIDHI NIDHI BALA Date:
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admitted the fact of the dishonour of the cheque in question. Accused further admitted the fact of receiving the legal demand notice sent by complainant but denied its contents. While putting forth his plea of defence, accused denied liability of cheque amount towards the complainant, however, admitted the loan of Rs.1,50,000/- having been taken from the complaianant. The plea of accused is being reproduced hereinafter for ready reference:
"I had taken friendly loan from the complainant only of Rs.1,50,000/- and for that purpose I had given four blank signed cheques to complainant as security bearing no. 236392, 236393, 236384 and 236383 and the cheque in question is one of them. I had not taken the abovesaid loan on interest. However, complainant started demanding interest from me on the above said amount and the interest amount was huge. Complainant has misused my security cheques. I do not owe the liability of cheque amount towards the complainant. I do not want to say anything else."
4. The accused was then granted liberty to move an application under Sec. 145(2) of NI Act to cross examine the complainant mentioning his defence in detail and consequently the same was moved and was allowed.
5. EVIDENCE OF COMPLAINANT:-
5.1. In Complainant's evidence, the complainant (CW-1) tendered his evidence in the form of affidavit (as the solitary witness) and relied upon the following documents:
i) Ex. CW-1/A : Evidence of complainant by way of affidavit.
Digitally signed by NIDHI NIDHI BALA Date:
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ii) Ex. CW-1/2: Original Cheque bearing no.236393 dated 04.12.2020
of Rs.1,50,000/-(One Lac Fifty thousand) drawn on Indian Bank, Vikas Cine Mall, Naveen Shahdara(Admitted by accused during his statement recorded under Sec.294 Cr.P.C,1973)
iii) Ex. CW-1/3: Original Cheque Return Memo dtd. 05.12.2020.
(Admitted by accused during his statement recorded under sec.294 Cr.P.C,1973).
iv) Ex. CW-1/4: Copy of passbook of the account of complainant's wife showing the tranfer of alleged loan in the account of accused.
v) Ex. CW-1/5(Colly): Statutory Legal demand notice dtd. 11.12.2020 sent by Complainant to accused(The fact of receiving the legal demand notice sent by complainant is admitted by accused during his statement recorded under sec.294 Cr.P.C,1973).
vi) Ex. CW-1/6 and Ex.CW-1/7: Postal receipt and Internet generated tracking report respectively.(The fact of receiving the legal demand notice sent by complainant is admitted by accused during his statement recorded under sec.294 Cr.P.C,1973)
6. EVIDENCE OF ACCUSED:-
6.1. In Defence evidence, the accused got himself examined as DW-1 but did not rely on any document and only gave his oral testimony.
7. During the cross-examination of complainant, his testimony remained intact and he denied the only suggestion of Ld. Counsel for the accused that the cheque in question was given to him by accused signed in blank for his share money of Rs.2,00,000/- in the committee being run by complainant wherein accused was the Digitally signed NIDHI by NIDHI BALA Date:
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member. There is no other suggestion given by Ld. Counsel for accused to the complainant as the defence of accused.
8. During his testimony recorded as DW-1, accused stated that he had given the cheque in question signed in blank to complainant only as security purpose for some business transaction and he had cleared all his dues and complainant has misused his security cheque. However, as per the plea of defence of accused recorded at the time of framing the notice, accused did not take any such defence rather he admitted the fact of taking alleged loan from the complainant and only said that he gave the blank signed cheques to complainant as security and cheque in question is one of them. And during his testimony recorded as DW-1, he stated that he had some business transaction with the conplainant for which he gave blank signed cheques to complainant. Hence accused has taken three different stands/defence.
9. The accused was then examined under Section 313 Cr.PC wherein all the incriminating evidence were put to the accused and he admitted the fact of demanding alleged loan from the complainant. However, accused further stated that he had given cheque in question signed in blank to the complainant for some business done together without disclosing the details of the business. Accused has further admitted the fact of knowing the complainant.
10. Final arguments have been heard at length on behalf of Complainant as well as accused. Complete record has been perused carefully.
11. ARGUMENTS ON BEHALF OF COMPLAINANT:-
11.1. During the course of arguments, Ld. Counsel for complainant reiterated the contents of the complaint and the evidence affidavit of the complainant and further Digitally signed NIDHI by NIDHI BALA Date: 2022.08.31 BALA 16:56:23 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 6 of 16 argued that there is a typographical error in the evidence affidavit of complainant Ex.CW-1/A w.r.t the date of giving loan in question which is 20.12.2017 and due to typographical error, the same got mentioned as 20.04.2017 and complainant has clearly stated in his cross examination that he gave the alleged loan on 20.12.2017.
Further the amount in question has been transferred to accused through account of the wife of the complainant and her bank account statement is filed as Ex.CW-1/4. Ld. Counsel further argued that accused has admitted his signatures upon the cheque in question and has vaguely denied the liability towards the complainant. Ld. Counsel for the complainant has further argued that accused has admitted his aquaintance with the complainant. Ld. Counsel for the complainant has further argued that once the accused has admitted his signatures upon the cheque in question, the legal presumptions of Section 118(a) and section 139 of NI Act arises in favour of the complainant and accused has failed to rebutt the said presumption of law by leading any cogent evidence. Ld. Counsel for the complainant has further argued that once the presumption has arisen in favour of the complainant then the burden of proof shifts to the accused to prove otherwise and the burden of complainant stands discharged. It is further submitted by the Ld. Counsel for the complainant that the complainant has been able to prove all the ingredients of the offence under Section 138 of the NI Act against the accused. Ld. Counsel for the complainant has further argued that accused does not have any defence hence has taken three different defences during trial at different stages. Ld. Counsel further argued that accused has falsely denied his liability in order to mislead the court and to avoid his legal liability towards the complainant.The Complainant has thus prayed for conviction of the accused for the offence u/s 138 of NI Act.
12. ARGUMENTS ON BEHALF OF ACCUSED:-
Digitally signedNIDHI by NIDHI BALA Date: BALA 2022.08.31 16:56:31 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 7 of 16
12.1 Per contra, Ld. Counsel for the accused argued that complainant was running a committee and accused was the member of that committee for the share money of Rs.2,00,000/- and accused had given four blank signed cheques to the complainant only as security for that share money. Ld. Counsel further argued that accused had returned the entire share money to complainant and complainant has misused the security cheques of accused.
13. Now the foremost provision of law to settle the entire dispute between the parties is Sec. 138 of NI Act and the same is quoted hereunder for the ready reference:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
Digitally
signed by
NIDHI
NIDHI BALA
BALA Date:
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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
13.1. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
Iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.Digitally signed
NIDHI by NIDHI BALA Date: 2022.08.31 BALA 16:56:44 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 9 of 16
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) Within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
14. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act. In this case, it is not disputed by the accused that the cheque in question bears his signatures and belongs to him of a bank account being maintained by him though he denied the fact of filling up the cheque in question. The said proposition has been duly observed by Hon'ble Supreme Court in the case of Bir Singh versus Mukesh Kumar, (2019) 4 SCC 197. The relevant paras are being reproduced hereinafter for ready reference:-
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes Digitally signed NIDHI byDate:NIDHI BALA BALA 2022.08.31 16:56:50 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 10 of 16 it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
In the present case accused has duly admitted his signatures upon the cheque in question though denied the fact that he issued the cheque in favour of the complainant for discharge of any existing liability, however he failed to establish this fact by any cogent evidence or any plausible explainantion thereby attracting the presumption of section 139 of NI Act in favour of the complainant. Further, during his plea of defence, accused admitted the loan in question having been taken from the complainant and further stated that he gave four blank signed cheques to complainant including the cheque in question. On the other hand, during the cross examination of the complainant, accused took the defence that he gave the cheques to complainant as security for his share money in the committee being run by the complainant wherein he was a member. And contrary to these two defences accused took another defence during his testimony recorded as DW-1 that he gave the cheque in question with other blank signed cheques to complainant for some business purpose and the same statement he gave at the time of his statement recorded under section 313 Cr.P.C. However, accused he failed to disclose the details of that business and it seems that Digitally signed by NIDHI NIDHI BALA Date:
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accused has taken a vague plea of defence since the three contardictory pleas of defence were taken by accused during the course of trial in the case on hand.
14.1. Keeping in view the aforesaid observation of Hon'ble Apex Court, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled. Accused has further admitted fact of dishonour of the cheque in question as well as fact of receiving the legal demand notice. Hence, the essential ingredients iii), iv), v) and vi) also stand proved.
15. Now coming to the last and the remaining core ingredient of section 138 of NI Act and the real issue of controversy herein i.e. whether the cheque in question was issued in discharge of any debt or liability, whole or in part. Section 139 of the NI Act is germane to this and according to Section 139 of NI Act, which mandates that unless the contrary is proved, it is to be presumed 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.
15.1. Needless to mention herein that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. The Hon'ble Supreme Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441 has held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant. It is also a well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law Digitally signed by NIDHI NIDHI BALA Date:
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on the basis of material available on record. It is further well settled that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts.
15.2. Now in the present case, since the accused has admitted his signatures on cheque in question, there arises an initial presumption in terms of Section 118 (a) and 139 of the NI Act not only regarding existence of legally enforceable liability in favour of the complainant but also regarding issuance of cheque in question by the accused in favour of complainant in discharge of his aforesaid liability since accused has failed to prove the fact that he did not issue the cheque in question in favour of the complainant to discharge any existing liability. It is trite to mention herein that the said presumption is rebuttable in nature and whether or not the accused has been able to rebut the said presumption is a question of fact which needs to be decided after appreciation of entire evidence led on behalf of both the parties in the light of guiding principles laid down by the Hon'ble Supreme Court as mentioned herein above and depends upon the facts and circumstances of each case.
15.3. The primary issue in the case in hand is to determine whether the accused has succeeded in discharging his burden, that whether he has successfully raised a probable defence in order to create a reasonable doubt in the case of complainant to discard the presumption of law in favour of complainant.
15.4. The accused has chosen to depose as a witness, now it is to be seen in the light of cross-examination of the complainant and the deposition of accused as to whether he is successful in dislodging the case of the complainant by bringing on record such facts/material/circumstances which could result the testimony/evidence of Digitally signed NIDHI by NIDHI BALA Date:
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complainant into disbelief. In the present case,the accused has tried to rebut the presumptions u/s. 118(a) and 139 NI Act only on the ground that he had given the cheque in question to Complainant as "security" and not to discharge any existing liability.
16. Grounds for defence relied on by the accused shall be discussed together. During the cross examination done by Ld. Counsel for accused, he only gave the suggestion that accused had given the cheque in question with other blank signed cheques for his share money of Rs, 2,00,000/- in the committee being run by the complainant wherein he was the member. However, accused has miserably failed to prove the said defence since he himself did not testify so in the court at the time of his examination as DW-1. Another ground of defence of accused is that he had given the cheque in question as security for some business purpose, however, accused again miserably failed to prove this fact either throgh cross exmining the Complainant or by leading any cogent evidence. During his plea of defence recorded at the time of framing notice, accused rather admitted the fact of taking alleged loan from the complainant. The three pleas of defence taken by accused during the trial are self contradictory.
17. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence Digitally signed NIDHI by NIDHI BALA Date: 2022.08.31 BALA 16:57:10 +0530 CC NO. 60/2021 Brijpal Vs. M/s. Bhardwaj Logistics through its prop. Chanderbhan Page 14 of 16 which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
18. In the present case in hand, keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per section 118(a)and section 139 of NI Act clearly comes to the rescue of complainant and his burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged and the accused has miserably failed to dischrge his reverse onus. In the light of the foregoing discussions, this court is of the opinion that the accused has not led any cogent evidence to rebut presumptions under Sec. 118 and 139 of NI Act. There is nothing coming out in the cross examination of the complainant which would probablise the defence raised by the accused or falsify the case of the complainant.
19. In the above view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability. This Court has considered opinion that in the facts and circumstances of the present case, the complainant has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused is, thus, held guilty and stands convicted for the said offence.
Digitally
signed by
NIDHI NIDHI BALA
Date:
BALA 2022.08.31
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20. As far as mediation settlement between the complainant and accused is concerned, it is not binding on the parties since their statement was not recorded in the court as per judgement of Hon'ble High Court of Delhi in "Dayawati Vs. Yogesh Kumar Gosain, 2017 SCC Online Delhi 11032" and not accepted by this court as the accused never complied with the terms of the mediation settlement.
Digitally signedNIDHI by NIDHI BALA Date: 2022.08.31 BALA 16:57:18 +0530 Announced in Open Court (NIDHI BALA today on 31.08.2022 MM (NI ACT) DIGITAL COURT, NORTH EAST,KARKARDOOMA
Certified that this judgment contains 16 pages and each page bears my signatures.
Digitally signed NIDHI by NIDHI BALA
Date:
BALA 2022.08.31
16:57:22
+0530
(NIDHI BALA)
MM (NI ACT) DIGITAL COURT
NORTH EAST,KARKARDOOMA/31.8.2022
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