Delhi District Court
The Case Of "Hiten P. Dalal vs . Bratindranath Bannerjee (2001) 6 on 8 May, 2018
IN THE COURT OF SHRI AMIT ARORA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (EAST)
KARKARDOOMA COURTS, DELHI
GHANSHYAM NAGAR V. NITIN SUNEJA
C.C. No.425/15
PS: Mandawali
U/s 138 N.I. ACT
JUDGMENT:
A New Number of the case 50079/16
B Date of institution 25.04.2006
C Date of commission of Date of Dishonour of Cheques is 16.12.2005,
offence. 02.01.2006 and 28.01.2006
D Name of the complainant Sh. Ghanshyam Nagar s/o Late Sh. Devi Chand
Nagar R/o 184, Mandawali Fazalpur, Delhi-
110092 (Near Railway Colony).
E Name of the accused & his Nitin Suneja s/o Sh. Satish Suneja R/o E-170, parentage and address IInd Floor, Preet Vihar, Delhi-110092.
F Offence complained of U/S 138 N.I. Act. G Plea of the accused Pleaded not guilty. H Order Reserved on 24.04.2018 I Final Order 08.05.2018 J Date of such order Convicted of offence u/s 138 of Negotiable Instrument Act BRIEF FACTS AND REASONS FOR DECISION 1 The Complainant's case in brief is as under: 2 Complainant avers that the accused was having friendly relationship
with him and in the month of July, 2005 he approached for a friendly loan of Rs.1 lac and promised to return the same within six months. Complainant arranged a sum of Rs.80,000/- with the help of his family New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 1 of 13 members and gave the same to the accused. In discharge of his liability, accused issued three cheques bearing no.597512, 597514 & 597513 Ex.CW1/A, Ex.CW1/B and Ex.CW1/C amounting to Rs.30,000/-, Rs.25,000/- and Rs.25,000/- dt. 16.12.2005, 02.01.2006 and 28.01.2006 respectively. It is averred that all the three cheques were presented on 30.01.2006 however, the same was returned dishonoured with the remarks "insufficient funds". Thereafter, complainant contacted the accused and on his assurance, complainant again presented these cheques on 02.03.2006 however, they were returned unpaid with the remarks "insufficient funds". Thereafter, complainant issued a Legal Notice dated 13.03.2006 Ex.CW1/H by registered post/UPC. It is averred that despite service of legal notice accused failed to make any payment within the statutory period, hence, this complaint.
3 The complainant led his per-summoning evidence and thereafter, accused was summoned u/s 138 N.I. Act.
4 Upon appearance of the accused, copies were supplied to him free of cost. Notice was framed against the accused u/s 138 N.I. Act wherein he pleaded not guilty and thereafter, the matter was fixed for complainant's evidence.
5 Complainant in support of his case tendered his evidence by way of affidavit Ex.CW1/1 wherein he reiterated the averments made in the complaint. He was cross examined on 19.11.2010 and on 09.08.2011. Complainant did not lead any other evidence. Upon completion of complainant's evidence, matter was adjourned for statement of accused.
6 Statement of accused was recorded u/s 313 Cr.P.C. In his defence accused stated that the cheques bears his signature however, the name as well as the date was not in his handwriting. He stated that he has handed the cheques to Sunny Chawla in the year 2005 to 2007 as security for obtaining loan from City Financial Bank however, the New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 2 of 13 complainant misused the cheque. He claimed that he has no legal liability towards the complainant.
7 It is pertinent to note here that at the stage of defence evidence accused moved an application for sending the cheques to FSL to determine the handwriting as to the date, name of payee and comparison of the ink with the signature. Vide order dt. 13.07.2012 the application was allowed. Specimen signature and admitted signatures of the parties were also obtained and were sent to FSL for comparison. Thereafter, for a considerable time no report was received from FSL and finally report was received on 30.11.2017. Pertinent to note here is that as per the opinion of the FSL it is mentioned that, "it is not possible to give any expert opinion on the red enclosed writing stamped and marked as Q-1 to Q-3 in comparison with the red enclosed writing similarly stamped and marked as S-1 to S-6 (specimen signature of accused) and S-7 to S-7(specimen signature of complainant)". However, it has been reported that tint and luster of the questioned handwriting (i.e. the payee name) do not tally with tint and luster with the writing marked as X-1, X-2, X-3, X-1/1, X-2/1 and X-3/1 (i.e. the amount written in the cheque as well as the signatures. 8 I have perused the cheques in question. A bare perusal of the same shows that the payee name and the signature of the accused are filled up by a different pen/ink. As to what is the effect of such difference in the handwriting has been answered by the Hon'ble High Court of Delhi in Ravi Chopra v. State 2008 (102) CRJ 147, wherein it was held that, "there is no provision in the N.I. Act which either defines the difference in the handwriting or the ink pertaining to material particulars filled up in comparison of the signature thereon as constituting a material alteration for the purpose of Sec. 87 N.I. Act. What however, is essential is that the cheque must be signed by the drawer. If the signature is altered or does not tally with the normal signature of maker that would be a material alteration. Therefore, as long as the cheque New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 3 of 13 has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purpose of Section 87. It was further held that merely because there is a CFSL report that shows that the handwriting, the ink and the time of filling the material particulars is different from that of signature, that by itself will ot go to prove that the accused has discharged his liability towards the complainant even before the date of presentation of cheque. 9 Thus, in view of the decision of the Hon'ble High Court of Delhi in Ravi Chopra case, merely because the ink used in the signature and filling up the other particulars is different will not make any difference. 10 Though accused had offered to led defence evidence however, for reasons best known to him no defence evidence was led and DE was closed on 15.12.2017.
11 Final arguments have been heard. Detailed written arguments have been filed by the Ld. Counsel for the parties. Record carefully perused. 12 Contention of the Ld. Counsel for the complainant
- Accused has admitted his signature on the cheque. Moreover, it has come in the evidence of the complainant that accused was known to him and therefore, there is no reason to disbelieve his version that the cheques were given to the complainant.
- That the defence of the accused that he has not filled up the particulars in the cheque is not a valid defence.
- That the version of the accused that he gave the cheque to a common friend Sunny Chawla is unbelievable as he never filed any complaint regarding the misuse of the cheque, nor intimated his banker to stop the payment of the cheque.
- Legal notice was sent to the accused and by way of registered post at the correct address and the accused has also mentioned the same address during his statement u/s 313 Cr.PC
- Reliance has also been placed on various judgments.
New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 4 of 13 13 Contentions raised by the Ld. Counsel for the accused can be summarized as under:
- That complainant did not mention the date, time and place of lending the money to the accused in his complaint; that the money was arranged by the complainant from other persons and was not shown in the ITR returns; that the mother of the complainant was not examined to show that she has given a sum of Rs.40,000/- to the complainant.
- There is no written agreement or oral agreement regarding the transaction between the parties.
- That one of the cheque incorrectly mentioned in the pre summoning evidence.
- That it is not mandatory for the accused to enter the witness box and the complainant has failed to show the source of money.
- That the legal notice does not bears any date and there is no service on the accused as the AD card does not bears signature of the accused.
14 Keeping in view the aforesaid rival contentions raised by the Ld. Counsel for the parties, I have considered the material available on record.
15 I have given my thoughtful consideration to the respective submission of the Ld. Counsel for the parties as well as to the evidence led on record. Before dealing further with the merits of this case it will be useful to take note of the basic constituents/ingredients which complainant is required to prove to make out an offence u/s 138 N.I. Act. The ingredients are as follows:
Firstly, there must be issuance of a cheque i.e. a cheque is drawn by a person on a bank where he is maintaining an account. Secondly, the cheque must be issued for discharge of liability or any debt or other liability. This has to be read in light with the provisions i.e. the presumption provided u/s 118 and 139 of N.I. Act.
New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 5 of 13 Thirdly, the cheque must be presented for encashment within its validity and the same must be been returned dishonored.
Fourthly, the accused must be served with a demand notice demanding payment of cheque within 30 days from the date on which complainant received intimation from the bank.
Fifthly, the accused fails to pay the cheque amount within 15 days of receiving the aforesaid demand notice.
Lastly, the complaint must be filed within a period of one month after the lapse of aforesaid 15 days.
Apart from the aforesaid ingredients, it is noteworthy to have a glance at the presumptions which is also provided under the NI Act. The presumptions provided under Section 139 and 118(a) of the Act are as follows:
"Section 139. 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."
"Section 118. Presumption of negotiable Instruments of consideration
- Unless 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;"
16 The Hon'ble Apex Court had dealt with the aforesaid presumptions in the case of "Rangappa v. Sri Mohan 2010 STPL(DC) 952 SC, and it was observed in para 14 that: It is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. A landmark decision of Hon'ble SC in New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 6 of 13 the case of "Hiten P. Dalal Vs. Bratindranath Bannerjee (2001) 6 SCC 16" which lays down an important test of Burden of Proof and the presumption. The Hon'ble Supreme Court had observed "Both section 138 and 139 requires that the court "shall" presume the liability of the drawer of the cheques for the amount for which the cheques are drawn. The presumptions are obligatory in nature where the factual basis for raising the presumptions has been established. The Court had further held that "the accused is not required to discharge the presumption by the standard of "proof beyond reasonable doubt" rather by reasonable probability i.e. preponderance of probabilities. It was further held "That such evidence must be produced before the Court in support of the defence that the court must either believe the defence to exist or consider is existence to be reasonable probable". 17 Moreover, the Hon'ble Supreme Court in Krishna Janardan Bhatt v.
B.G. Hegde, AIR 2008 SC 1325 had held that for rebutting the presumption u/s 139 of the Act, it is not necessary in every case for the accused to stepped in the witness box. The Apex Court has held that the standard of proof on the part of the accused and that on the prosecution in a criminal case is different. Prosecution has to prove the guilt beyond reasonable doubt, but standard of proof so as to prove a defence is preponderance of probabilities. Inference of preponderance of probabilities can be drawn even by reference to circumstances. 18 Keeping in view the aforesaid principles of law, the issues which needs to be determined is whether the complainant has been able to prove all the aforesaid ingredients or not. The onus to prove the ingredients is always on the complainant in every criminal trial and it is only after the complainant proves them, the onus shifts upon the accused to rebut the same. In the instant case, the complainant/CW1 had produced the original cheques, return memos, and legal notice. He also appeared as witness to support his allegations with his testimony by way of affidavit. Thus, the complainant produced sufficient material on record for raising New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 7 of 13 the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
19 I shall now take up the arguments raised by the parties one by one.
The contention urged by the accused is that the cheque in question was given by him to one Sunny Chawla and the complainant in collusion with him had filed this case. During the cross-examination of complainant such suggestion were given to him however, the complainant had denied that the cheques were given to Sunny Chawla. He denied that he has misused the cheque and has falsely implicated the complainant. He denied that he has not given any money to the accused and no transaction took place. CW1 rather in cross- examination stated that at present he is an advocate however, he was earlier running a general provision store. He stated that he gave Rs.80,000/- in cash to the accused out of which Rs.40,000/- he had borrowed from his mother. He further stated that he was an income tax payee only for the last three years and his mother is not an income tax payee. Thus, despite suggestions, nothing could be elicited from the testimony of the witness to show that the cheques were issued to Sunny Chawla and not to the complainant.
20 It is only in his statement u/s 313 Cr.PC that the accused took the defence that he has handed those cheques to Sunny Chawla in the year 2005 to 2007 for obtaining loan from Citi Financial Bank. It is trite to note that the statement of the accused u/s 281 Cr.PC is not the evidence of the accused and the same cannot be read as part of evidence. Hon'ble Delhi High Court in V.S. Yadav v. Reena, Crl. Appeal No.1136 of 2010 has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr.PC or under Section 313 Cr.PC is not the evidence of the accused and it cannot be read as part of evidence. The accused New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 8 of 13 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.PC or 313 Cr.PC 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.PC, that the cheques were issued as security, does not amount to proof.
7. The respondent has placed reliance on Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 Crl. L.J. 1172, which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under Section 139 of N.I. Act would largely depend upon the factual matrix of each case. The trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under Section 138 of N.I. Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 9 of 13 amount to rebutting the presumption raised under jSection 139 of N.I. Act. If mere statement under jSection 313 Cr.PC or under jSection 281 Cr.PC of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act."
21 The decision of the Hon'ble Delhi High Court in V.S. Yadav case supra, is squarely applicable to the facts and circumstances of the case. Herein, the accused did not lead any cogent evidence to prove that he has issued the cheque to Sunny Chawla for obtaining loan. Admittedly, accused has not filed any complaint against Sunny Chawla regarding misuse of the cheque. He never preferred any complaint with the Citi Financial Bank or with the police authorities. Moreso, he did not write any letter to Sunny Chawla seeking return of the cheques in case the loan was not arranged. Further, he never even bothered to instruct his bank to stop payment of the cheques in case they were misused. Thus, the version of the accused that he has issued the cheque to some third person does not appear to be satisfactory and is only an after thought. 22 Ld. Counsel for the accused has vehemently argued that the complainant has failed to show his source of funds and had admitted that no document was executed regarding the said transaction which creates a serious doubt regarding the extension of loan. However, going by the evidence on record, I am not in agreement with the contention. There is no rule of Law that the complainant is always required to get a loan document executed for enforcement of his New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 10 of 13 liability. Though such a document if executed can always be a positive evidence in a Court of law however, failure to do so will not in itself cast a doubt on the complainant version.
23 Coming to the source of fund, complainant in his complaint has mentioned that he arranged Rs.80.000/- with the help of his family members. During cross-examination, he stated that he had Rs.40,000/- and Rs.40,000/- he got from his mother. Moreover, he has stated that at that time he was running a general provision store at Mandawali. No suggestion was given to CW1 that he was not running a general provision store or that he was unemployed or he do not have sufficient source of funds to advance a sum of Rs.80,000/-. The non examination of the mother of the complainant in the facts and circumstances does not itself weekens the complaint of the complainant. It is not itself sufficient to cast a doubt on the complainant case which otherwise suffers from no infirmity. Ld. Counsel for the accused has placed on record various judgments to support his arguments however, the judgment relied do not help the case of the accused. All the judgments relied upon lays down well settled principles of law however, they have to be appreciated keeping in view the facts and circumstances of the present case.
24 The decision of Hon'ble Supreme Court in J.K. Abraham v. S.C. Abraham & Anr. (relied by the accused) is distinguishable to the facts of the present case for the reasons that there were various defects in the version of the complainant in the said case. Whereas, there is no contradiction in the present case. Similarly, the facts of the decision of the Hon'ble Delhi High Court in Vipin Kr. Gupta v. Vipin Gupta are also different. In the said case, the loan amount was for a huge amount for Rs.9 lacs which the complainant was unable to explain and which was not reflected in the ITR returns. Herein, the loan amount is only Rs.80,000/- and no suggestion was given to the complainant that he had no sources to lend this amount. Similarly, the facts before the New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 11 of 13 Hon'ble Supreme Court in K. Prakashan v. P.K. Sundaram is also distinguishable inasmuch as the loan amount was Rs.3,16,000/- which was advanced in the year 1994-95 and the complainant has failed to show funds in this regard. Similarly, the decision of the Hon'ble Delhi High Court in Kapil Sahni v. Santokh Singh and in Kulwinder Singh v. Kapil Ahmad is distinguishable as the cheque in those cases were of Rs.5 lacs and Rs.9.30 lacs respectively.
25 In the case in hand, the loan amount was only Rs.80,000/-. No suggestion was given to the complainant that he was not having any source of fund. The version of CW1 that he was running a general provision store was also not repudiated.
26 Lastly, it was argued that the legal demand notice was defective and it was not served upon the accused as the AD card does not bear his signature. Pertinent to note here is that there is a presumption under section 27 of General Clauses Act r/w Section 114 of Indian Evidence Act to the effect that once notice is sent by registered post by correctly addressing to its drawer, service of the notice should be deemed to be effected. In such circumstances, the notice is deemed to be served and the drawer is at the liberty to rebut the presumption. Notice Ex.CW1/H was sent to the accused by way of registered post and UPC exhibited CW1/I and Ex.CW1/J and the AD card is CW1/K. The notice was dispatched on 13.03.2006 at the address of the accused i.e. E-120, Second Floor, Preet Vihar, Delhi-110092. It is not in dispute that this is the actual address of the accused in the bail bond accused has mentioned this address and the same address also find mentioned in the statement of the accused. Except a suggestion given to CW1 that the accused never received this notice, accused had not led any evidence to show that the notice was not actually served upon him or at that relevant point of time he was not available. Thus, mere denial of service will not rebut the presumption u/s 27 of General Clauses Act and the service stands proved. Though in the legal notice date has not New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 12 of 13 been mentioned however, in my considered opinion it does not make any difference. CW1 has stated that the notice was got prepared by him through his counsel. It is pertinent to note here that complainant alongwith the notice has placed on record the postal receipts which bears the stamp of date of issuance as 13.03.2006. The notice has to be harmoniously construed with the postal receipts and merely because due to some oversight the date was not mentioned in the notice, will not make the notice as null and void. The purpose of notice is to inform the accused regarding the dishonour of cheque and to call upon him to make the payment. Notice Ex.CW1/H satisfies the requirement of a legal notice.
CONCLUSION 27 In view of the reasons and findings given above, I have no hesitation in holding that, all the essential ingredients of offence U/s 138 N I Act have been proved on record beyond any reasonable doubt against the accused. Accused is accordingly convicted u/s 138 N.I. Act. 28 Be heard on the point of sentence separately.
Announced in the open Court on 08.05.2018 (AMIT ARORA) ACMM(East)/KKD/08.05.2018 Certified that this judgment contains 13 pages and each page bears my signature.
(AMIT ARORA) ACMM(East)/KKD/08.05.2018 AMIT Digitally signed by AMIT ARORA DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e4720 81070b034ee609e5ec0ad1936d93 ARORA a0429d51816814c, ou=HIGH COURT,CID - 6309251, postalCode=110092, st=Delhi, cn=AMIT ARORA Date: 2018.05.08 17:09:59 +05'30' New CC No.50079/16 Ghanshyam Nagar v. Nitin Suneja 13 of 13