Delhi District Court
Complainant vs . on 9 October, 2012
Kamlesh Kumari v. Satya Bhan Sharma
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01, SOUTH-EAST,
SAKET COURTS, NEW DELHI
Ms. Kamlesh Kumari
W/o Sh. B.N. Sharma,
R/o A-3, MCD Flats, S.N. Puri,
New Delhi.
. . . Complainant
Vs.
Satya Bhan Sharma
R/o Raman Bhardwaj,
R/o House No. 780 (Behind Kuber Building),
Near Tubewell No.4, Village Maidangarhi,
New Delhi.
. . . Accused
CC NO. : 913/10
OFFENCE COMPLAINED OF : U/s 138 of Negotiable Instruments Act
PLEA OF ACCUSED : Not guilty
DATE OF INSTITUTION : 26.08.2006
DATE OF RESERVING ORDER : 14.09.2012
FINAL ORDER : Convicted
DATE OF ORDER : 09.10.2012.
Present: Ms. Pakshi Singh, Proxy Counsel for complainant alongwith complainant in
person.
Sh.Gagan Preet Singh, Counsel for the accused alongwith accused in person.
JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/s 138 of Negotiable Instruments Act. The brief facts of the case are as follows: -
1. That the accused being close relative of the complainant, took friendly loan of Rs.6 lacs from the complainant with promise that the accused will return the same on or before month of April, 2006. The accused issued three cheques for Rs.2,00,000/- each in favour of the complainant within promises that he same will be honoured. Out of the three 02406R0744842006 -1- Kamlesh Kumari v. Satya Bhan Sharma cheques, the complainant presented one cheque bearing no.024269 for Rs.2,00,000/- dated 30.3.2006 is drawn on Punjab National Bank, Vasant Kunj, New Delhi in her bank i.e. Bank of Baroda, Nehru Nagar, New Delhi for encashment. However, the said cheque no.
024269 was dishonoured by banker of the accused with return memo dated 28.7.2006 for the reason "Funds Insufficient". The cheque no.024269 is Ex.CW1/A and cheque return memo dated 28.7.2006 is Ex.CW1/B.
2. That on 28.7.2006 when the dishonour of cheque no.024269 was received by the complainant, he contacted the accused for payment of the cheque amount but it seemed that the accused was deliberately and intentionally avoiding the payment of the amount of the cheque in question. The complainant through his counsel also served a legal demand notice dated 31.7.2006 upon the accused by registered post as well as UPC. The copy of legal notice is Ex.CW1/C, postal receipt is Ex.CW1/D and UPC receipt is Ex.CW1/E. The legal notice send by the complainant through UPC is deemed to have been received by the accused and the complainant's counsel has not received the A.D. card. The complainant and accused have also been in contact telephonically and thus, the accused has full knowledge regarding the legal demand notice, but the accused has failed to make payment of the amount of cheque in question to the complainant within the period stipulated in the legal demand notice. Therefore, the complainant has filed the present complaint against the accused.
3. Accordingly, the summoning order was passed against the accused on 28.08.2006 and on appearance of the accused, the notice under section 251 Cr.P.C. was served upon the accused on 27.5.2008, to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the complainant filed her evidence by way of affidavit, which is dated 16.12.2008. The accused, however, failed to cross-examine the complainant on the said affidavit. Even though, the said affidavit was not duly tendered before the court, the same being in original and duly attested by a seal of Oath Commissioner is being read as part of evidence of the complainant alongwith pre-summoning evidence by way of affidavit filed 02406R0744842006 -2- Kamlesh Kumari v. Satya Bhan Sharma by the complainant, in view of the provisions of section 145 of N.I. Act. After the accused failed to cross-examine the complainant despite several opportunities, the matter proceeded for recording statement of accused u/s 313 Cr.P.C. The statement of accused u/s 313 Cr.P.C. was recorded and all the incriminating evidence were put to the accused. In the said statement, the accused stated that he has never taken any loan from the complainant. He also mentioned that he never issued any cheque to the complainant. The accused also stated that the complainant is related to him as being his sister-in-law and that he had kept certain blank signed cheques at his home, which have been misappropriated by the complainant. The accused also stated that the handwriting on the cheque in question is not his own, except for the signature. He further mentioned that he never received the legal demand notice, which has been filed by the complainant on record. The accused also mentioned that he is an innocent person and has been falsely implicated in the present complaint. The accused thereafter examined two defence witnesses i.e. DW-1 Vinay Sharma and DW-2 Manju Sharma.
5. DW-1 Vinay Sharma stated in his examination-in-chief that he is the brother of the complainant and brother-in-law of the accused. He also stated that he has cordial relationship with both the parties and he frequently visits their residences. He mentioned in his deposition that the complainant has never spoken to him about any loan given by her to the accused. He further stated that he became aware about the present dispute between the complainant and the accused only last year i.e. on or about year 2010. He also mentioned in his statement that there has been no meeting in his presence between the complainant and the accused regarding any settlement of dispute and that there might have been some talks regarding any dispute between the parties with the father of the said witness. He also mentioned that according to his knowledge, the accused has never taken any loan from him or from any other person. DW-1 was, then, cross-examined by counsel for the complainant, wherein he stated that he is maternal brother of the complainant and the accused is his real brother-in-law. He also mentioned that he has not visited the residence of the complainant for last about 3/4 years and has not visited the residence of 02406R0744842006 -3- Kamlesh Kumari v. Satya Bhan Sharma the accused for last about 1 or 2 years. Thereafter, the said witness denied all other suggestions put to him by counsel for the complainant, wherein, the knowledge of present loan in question was suggested by Ld. Counsel for the complainant. The witness also categorically denied the suggestions testing the veracity of his statement.
6. DW-2 Manju Sharma mentioned in her examination-in-chief that the accused is her brother-in-law (JEEJA) and that she also frequently visits the residence of the accused i.e. almost on every Sundays. She further stated that in March, 2006, she visited the accused on a Sunday and it was found that in one of the rooms, there were three cheques lying on the table, which had signatures of the accused and the amount mentioned on them. The name of the payee and the date were, however, not mentioned on the said cheques as per the statement made by the said witness. She further stated that she made an inquiry from the accused regarding the said cheques. The accused informed her that he has kept the said cheques for the purchase of certain property in Meerut and that he is waiting for the person, to whom the said cheques are to be handed over. The witness further deposed that the complainant, who is her cousin and daughter of her BUA, also came to the residence of the accused on the same day and they had tea and snacks at the house of the accused on the said date. The witness also stated that after the complainant left from the house of the accused on the said date, the accused informed her that the cheques are missing from the table where they were left. The witness further deposed before the court that the accused thereafter called up the complainant to inquire about the cheques, but the complainant refused any knowledge about the said cheques, and that the cheques were never found thereafter, even though, DW-2 kept on inquiring from the accused regarding the said cheques. She further stated that the cheque filed in the present complaint is out of the said three cheques, which were lost from the residence of the accused on that particular day and that she can also recognize the signature of the accused and the amount mentioned on the said cheque, which is in the handwriting of the accused. DW-2 was, then, cross- examined by Ld. Counsel for the complainant. In her cross-examination, she stated that she came to know about the present complaint in the month of March, 2006 and 02406R0744842006 -4- Kamlesh Kumari v. Satya Bhan Sharma somewhere around Holi festival, however, she cannot recall the exact date. She also mentioned that she is unaware whether any reply to the legal demand notice or to the court summons is given by the accused in the present complaint. She further stated that no complaint regarding the loss of cheques has been lodged by the accused or by herself since the complainant is also one of their relatives. In the remaining part of her cross- examination, she admitted ignorance regarding knowledge of any complaint being filed by the accused for the lost cheques, or whether under any law, any complaint regarding the loss of cheques is to be lodged by any party. She also seemed unaware as to whether the complainant had visited her father referring about the dishonoured cheques. All other suggestions testing the veracity of the said witness were also denied by DW-2.
7. I have perused the entire record and heard the submissions of both the parties. Ld. Counsel for the accused has moved an application u/s 73 read with section 45 of Indian Evidence Act, praying that the correctness and genuineness of the handwriting of the accused on the body of the cheque be ascertained by the court in view of the said provisions. I have perused the said application. The opinion on the said application shall be expressed in the course of the present judgment. Ld. Counsel for the accused also filed written submissions which are on record.
8. At the outset, it is pertinent to mention the law in respect of section 138 of N.I. Act. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to prove all the following ingredients:
i. There is legally enforceable liability / debt.
ii. The drawer of the cheques issued the cheques to satisfy part or whole of the debt or other liability.
iii. The cheques so issued have been returned due to insufficiency of funds or exceeds arrangement.
iv. Payment not made by the accused despite service of the legal demand notice.
9. Moreover, the Negotiable Instruments Act also raises certain presumptions in favour of the 02406R0744842006 -5- Kamlesh Kumari v. Satya Bhan Sharma holder in due course of a negotiable instrument. As per section 118 (a) of the said Act, "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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
10. Section 139 of the Act stipulates and as under:
"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, or any debt or other liability."
11. Under the light of these provisions and the provisions of the Law of Evidence, I have examined the evidence placed on record on behalf of both the parties. Perusal of the record shows that the cheque in question has been dishonoured for the reason "Funds Insufficient". In view of section 147 of Negotiable Instruments Act, the bank slip denoting the reason for dishonour of the cheque is the prima-facie evidence, which leads to a presumption of the fact of dishonor of such cheque, until and unless, the said fact is disproved in the course of the trial. Accused neither led any evidence to show that the cheque in question was dishonoured for any other reason nor he rebutted the genuineness and admissibility of the bank returning memo. The main defence of the accused was that he had kept three cheques including cheque in question at his home which were allegedly stolen by the complainant and misappropriated by her and therefore, there does not arise any liability against the accused. The accused tried to support the said defence by arguing that the complainant is also one of his relatives and a frequent visitor to his residence. The accused also supported the said defence by examining two witnesses in his defence. However, perusal of the entire deposition of DW-1 shows that he is unaware about any transaction between the complainant and the accused. He even mentioned in his cross- examination that he has not visited the residence of the complainant for last 3/4 years and 02406R0744842006 -6- Kamlesh Kumari v. Satya Bhan Sharma the residence of the accused for last about 1-2 years. The said witness appears to be completely oblivious to any money transaction between the complainant and the accused including the transaction in question. Therefore, the deposition of the said witness does not appear to be a relevant piece of evidence. Since no transaction has taken place in the presence of the said witness, therefore, the deposition of the said witness also does not come to any support of the defence.
12. The only other witness examined by the accused was DW-2 Manju Sharma, to whom, the accused is related as being her brother-in-law (Jeeja). In her statement, the said witness has stated that in the month of March, 2006, when she had visited the accused at his residence, she found certain cheques lying on the table and when she inquired from the accused regarding the said cheques, the accused informed her that the said cheques are for purchase of certain property in Meerut. The said witness also mentioned that even the complainant had visited the residence of the accused on the same day and that she had met the complainant and they even had tea and snacks at the residence of the accused on the particular day. In her statement, the witness has also averred that after the complainant had left from the residence of the accused, the accused informed her that the cheques have been missing from the table, where they were kept lying. She also mentioned that the accused called up the complainant to inquire about the cheques, however, the complainant has refused any knowledge about the said cheques. From the said statement of the DW-2, it is clear that the accused came to know about the fact that the cheques have been missing from his residence on the same day itself. However, nothing has been brought on record by the accused to show that he had lodged any complaint in any police station or before any court regarding the loss of cheques or that the cheques have been stolen by the complainant. It is also clear from the entire material on record that no instructions were also given by the accused to his banker for stopping payment of the said cheques despite the fact that he had become aware that the cheques have been lost/stolen. The cheque in question has been dishonoured for the reason "Funds Insufficient", which as observed earlier, is a prima-facie evidence of the fact of dishonor of the cheque in question.
02406R0744842006 -7-Kamlesh Kumari v. Satya Bhan Sharma
13. The only other argument led by the accused in his defence is that the cheque in question does not bear his handwriting except for the signature. Ld. Counsel for the accused has accordingly moved an application under section 73 of Indian Evidence Act (incorrectly mentioned as section 73 of Cr.P.C. on the application of the accused) read with section 45 of Indian Evidence Act. I have perused the said application and have also read the provisions of section 73 as well as 45 of the Indian Evidence Act. I would like to reproduce the provisions of section 73 as well as 45 of the Indian Evidence Act as under: -
Section 73 of the Indian Evidence Act Comparison of signature, writing or seal with others admitted or proved.-In order to ascertain whether a signature, writing or seal is that of the writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words of figures so written with any words or figures alleged to have been written by such person.
Section 45 of Indian Evidence Act.
Opinion of experts.-When the court has to form an opinion upon a point of foreign law or of science or art, or as to identify of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting or finger impressions are relevant facts.
Such persons are called experts.
14. It is clear from bare reading of the said provisions that not just the court has been empowered to make comparison of disputed and admitted signatures of a party, but the court can also take the opinion of expert in comparing and analyzing the handwriting on any document. Section 46 and 47 of Indian Evidence Act are also relevant, which give 02406R0744842006 -8- Kamlesh Kumari v. Satya Bhan Sharma due importance to the opinion expressed about any handwriting by any expert or any other person, who is acquainted with the handwriting of the alleged person for the purpose of section 73 of the Indian Evidence Act. Section 73 of the Indian Evidence Act also enables the court to take specimen handwriting of the person, who prays that his handwriting be compared with the disputed handwriting on an alleged document. In the present application, the prayer of the accused was only that the court should compare the handwriting of the accused on the cheque in question with the specimen handwriting which the accused was willing to give before the court. No prayer as to the effect that the alleged document be sent for an expert opinion was made in the said application. As per the settled position of law, under the provision of section 73 of Indian Evidence Act, as a rule of prudence the expert opinion may be sought for analyzing any handwriting or any signature of a party. In the present case, it appears that no purpose would have been served by sending the cheque in question for expert analysis as signature on the cheque in question is already admitted by the accused.
15. Further, section 20 of the Negotiable Instruments Act, is a relevant provision which talks about 'Inchoate Instruments". The said provision reads as under: -
Section 20 of Negotiable Instruments Act.
Inchoate stamped instruments.-Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and 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 may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall cover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
It is clear from the said provision that when a person signs and delivers to any person a 02406R0744842006 -9- Kamlesh Kumari v. Satya Bhan Sharma document which is either wholly blank or having written thereon an implied negotiable instrument, he thereby gives prima-facie authority to the holder to make or complete the same. The said provision makes the person, who has signed the said instrument liable for the said instrument in his capacity in which he signs the same, to any holder in due course for the said amount as mentioned on the instrument. The provision also comes with a proviso which states that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. In view of the said provision, it is clear that if the accused had kept a blank signed cheque at home, which was misplaced, he had in fact given authority to the person who finds the said cheque to fill details on the same and present it for encashment. The accused, thus, becomes liable to the holder in due course for the amount mentioned on the cheque in question. The accused has also not adduced any evidence to show that the complainant is not the holder in due course of the said cheque. Therefore, the fact that the details on the cheque in question are not in the handwriting of the accused does not hold a good defence in favour of the accused in view of section 20 of the Negotiable Instruments Act.
16. From the entire material on record, the accused could not bring any evidence to show that the cheque in question was not issued in discharge of any legally enforceable debt or liability. The only defence taken was that the complainant being a relative of the accused was within her capacity to misuse the cheque, which may has been found lying at the house of the accused, does not appear to be a satisfactory defence to rebut the strong presumption of law lying in favour of the complainant. Moreover, as observed earlier, the fact that no complaint was lodged by the accused against the complainant or any other person regarding the loss of the cheques despite the fact that it came to his knowledge that the cheques have been misplaced on the very same day on which he had kept them lying on a table at his residence, also weakens the defence of the accused. Thus, the presumption that the cheque in question was issued in discharge of a liability stands duly proved.
02406R0744842006 -10-Kamlesh Kumari v. Satya Bhan Sharma
17. As held in various caselaws, the standard of proof on the part of the accused and that of the prosecution is different in a criminal trial. Whereas, prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he/she relies (cited from, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of Drum Manufacturing Co. v. Amin Chand Pyarelal (1993) 3 SCC 35, after analysing various judgments, the Apex Court observed that the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant (or the accused) can prove the non-existence of a consideration by raising a probable defence. Furthermore, in the recent judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) INSC 373 (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is a rebuttable presumption, even though this initial presumption lies in favour of the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, prosecution can fail.
18. Moreover, the accused also did not lead anything in defence to show that the legal demand notice was not served upon him. In view of the presumption of law and also the settled position of law that once the notice is dispatched on the correct address of the accused, unless and until the contrary is proved by the addressee, service of the notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business (in judgment of C.C. Alavi Haji v. Palapetty Muhammed & Anr. 2007 Cr.L.J. (SC) 3214: 2007 (7) SCR 326 (emphasis supplied)). Thus, in the absence of any contrary evidence, it can be deemed that the notice was served upon the accused. Further the provisions of Section 101 of the Evidence Act provide that the 02406R0744842006 -11- Kamlesh Kumari v. Satya Bhan Sharma burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue. In the present case as well, the onus was upon the accused to establish that the notice was not served upon him, but no cogent evidence was brought by the accused to prove the same.
19. Thus, in the present case, the accused was not able to sufficiently rebut the presumption lying in favour of the complainant. The ambiguities, discrepancies and contradictions in the depositions of the accused and the defence witnesses at various places further weaken the defence of the accused. The accused and the defence witnesses could also not substantiate their averments by way of documentary evidence. In view of the material on record, submissions of the Counsel for both sides, the admission by the accused of the signatures on the cheque in question as well as the prima facie evidence of the dishonour of the cheque in question for the reason "Funds Insufficient" and, above all, the presumption of the law lying in favour of the complainant, I am of the considered view that the the ingredients for offence under section 138 of Negotiable Instruments Act stands proved and the complainant has proved its case beyond reasonable doubt as against the accused. Accused has clearly failed to rebut the presumption of law. Apart from not raising a probable defence, accused was also not able to contest the existence of a legally enforceable debt or liability. I, therefore, hold accused Satya Bhan Sharma, guilty of the offence under Section 138 of Negotiable Instruments Act. Accused is convicted.
Pronounced in open court.
Dated: 09.10.2012 (Ms. ANKITA LAL)
MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R0744842006 -12-
Kamlesh Kumari v. Satya Bhan Sharma
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01, SOUTH-EAST,
SAKET COURTS, NEW DELHI
CC No.913/10
Ms. Kamlesh Kumari
W/o Sh. B.N. Sharma,
R/o A-3, MCD Flats, S.N. Puri,
New Delhi.
. . . Complainant
Vs.
Satya Bhan Sharma
R/o Raman Bhardwaj,
R/o House No. 780 (Behind Kuber Building),
Near Tubewell No.4, Village Maidangarhi,
New Delhi.
. . . Accused
ORDER ON SENTENCE
Date: 15.10.2012
Present : Sh.M.R. Sisodia, Counsel for the complainant alongwith complainant in person Sh.Gagandeep Singh, Counsel for the accused alongwith accused in person Accused Satya Bhan Sharma has been convicted for the offence punishable u/s 138 of N.I. Act vide judgment dated 09.10.2012. I have heard Ld. Counsel for complainant as well as Ld. Counsel for the accused on the sentencing of the accused.
Ld. Counsel for the accused submits that the accused is the sole bread earner of the family and a family to take care of. It is further submitted that the accused has small children to look- after and is also liable to maintain his wife. It is further submitted that the accused has never been involved in any litigation in past and has absolutely clean antecedents. Ld. Counsel for the accused prays that considering family background of the accused, his socio-economic status and the nature of the offence, and the fact that he was only a victim of the circumstances, a lenient view may be taken towards the accused and he be released on fine only.
Ld. Counsel for the complainant has argued that great inconvenience and harassment has been suffered by the complainant in contesting the present complaint. A lot of expense has been 02406R0744842006 -13- Kamlesh Kumari v. Satya Bhan Sharma suffered by the complainant in terms of money and time. It is also argued that the trial has stretched for more than 6 years and the complainant has suffered great hardship in prosecuting the present complaint. It is further argued that since the cheque amount is also huge and also since the accused never made any efforts to compound the matter, therefore, it is prayed that stricter punishment be imposed upon the accused, so as to create a deterrent effect in such offences.
I have perused the record of this case and after considering the submissions of both the counsels, I am of the view that keeping in mind the age of the accused, his family background, his antecedents, the nature of the offence, facts of the present case, the conduct of the accused during the entire course of the trial and at the same time balancing the interests of both the parties, I deem it proper to impose a sentence of fine of Rs. 3,00,000/- upon the accused and a simple imprisonment for a period of two months. The entire fine shall be paid as compensation to the complainant. In default of payment of fine, the accused shall be liable to undergo a Simple Imprisonment of 15 days in addition to the substantive imprisonment.
Bail Bond of Accused Satya Bhan is cancelled. Surety is discharged. Endorsements, if any be cancelled. Documents, if any, be returned.
Copy of this order as well as the copy of judgment be given to the accused immediately, free of cost.
Pronounced in open court. (MS. ANKITA LAL)
Dated: 15.10.2012 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R0744842006 -14-