Delhi District Court
Vide This Judgment vs . Vineet Kumar Gera on 26 July, 2022
CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 1
Vs. Vineet Kumar Gera
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No: CC NI ACT/5498/2021
ASHISH BALAJI COOP. URBAN T & C SOCIETY ... Complainant
Versus
VINEET KUMAR GERA ... Accused
1. Name & address of the complainant: ASHISH BALAJI COOP.
URBAN T & C SOCIETY
Through its AR Sh. D K Bhardwaj
Having office at K10, Basement,
Lajpat NagarII,
New Delhi110024 (opposite
Shaheed Hemu Kalani Govt.
Sarvodaya Bal Vidhalaya )
2. Name & address of the accused : Vineet Kumar Gera
S/O Madan Lal
R/O. H.No.318, BlockF,
Karam Pura, Near Kali Mata
Mandir, New Delhi110015.
Also Through the D.D.O
The Administrative Officer
Director of Education, Govt. of
NCT of Delhi, DDE District
North, Lucknow Road, Timarpur,
Delhi110054
3. Offence complained of : U/S 138, The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 25.07.2022
6. Date of Institution of case : 26.06.2021
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.07.26
16:20:29 +0530
CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 2
Vs. Vineet Kumar Gera
7. Date of decision of the case : 26.07.2022
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant Company The ASHISH BALAJI COOP. URBAN T & C SOCIETY , (hereinafter referred to as the 'complainant') through it's AR Sh. D K Bhardwaj, against accused namely Vineet Kumar Gera (hereinafter referred to as the 'accused persons').
2. Factual Matrix: The complainant's case is that complainant company is a registered society governed by rules and regulation formulated by Delhi Cooperative society's Act and is engaged in the business of thrift, credit and extending loan to it's registered members and Mr. D K Bhardwaj is Authorized by complainant Society to institute and prosecute this complaint. It is stated that the accused being member of complainant society having membership No. 1310 availed loan of Rs. 3 lakh on 11.03.2020 from the complainant company upon executing loan bond bearing No. 190184 and accused agreed to repay the said loan amount with interest in 60 instalments and upon default in payment of the instalments, the accused issued cheque bearing No. 279016 dated 05.05.2021 for a sum of Rs. 2,80,000/ drawn on Punjab National Bank, 10, West Patel Nagar, New Delhi110008 (herein after referred to as the 'cheque in question') in discharge of his legal liability and when the said cheque was presented by the complainant company, the same was dishonoured for the reason "funds Insufficient" vide return memo dated 11.05.2021. The complainant thereafter, sent a legal demand notice dated 19.05.2021 to the accused calling upon the accused to repay the loan amount within fifteen days of the receipt thereof. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2022.07.26 16:20:37 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 3 Vs. Vineet Kumar Gera 1881 on 26.06.2021 and prayed that the accused be prosecuted and punished and he be also directed to pay compensation U/S 357 (3) of Cr. P.C. to the complainant and punished under section 138 of The Negotiable of Instruments Act, 1881.
3. Summoning of accused: The learned predecessor court summoned the accused after hearing the arguments at the stage of presummoning vide order dated 04.10.2021 and the accused entered appearance in the present case on 07.01.2022 and he was admitted to bail vide same order.
4. Notice: The court has framed notice of accusation under section 251 Cr.P.C. against the accused on 21.03.2022. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused pleaded guilty and stated that he has already made some payment to the complainant and he also intend to make payment of remaining amount in installments. He admitted his signatures on the cheque in question and he also admitted to have filled the particulars of the cheque in question.
He further admitted that the legal demand notice was sent at his correct address and he has received the same. The accused did not disclose any defence. On the same date, the statement of accused for admission / denial was recorded U/S 294 Cr. P.C, wherein he admitted the correctness of dishonour memo and postal receipt, pursuant to which the witnesses from Bank and Postal department were dropped.
6. Evidence on behalf of complainant: To prove the case of the complainant, the AR of the complainant has examined himself as CW1. He has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit Ex. CW1/1 wherein the AR of the complainant has averred the same facts as are averred in the complaint. To prove the claim of the complainant, the AR of complainant has filed EX. CW1/A which is the Copy of Board Resolution dated 10.02.2021 vide which he is authorized to pursue the present complaint, Ex. CW1/B which is the original cheque Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:20:46 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 4 Vs. Vineet Kumar Gera in question dated 05.05.2021, Ex. CW1/C which is the original return memo dated 11.05.2021, Ex.CW1/D which is the legal demand notice dated 19.05.2021, along with it's postal receipts which is Ex. CW1/E and tracking report is Ex. CW1/F (Colly). Since the accused did not disclose any defence and did not file any application U/S 145 (2) of NI Act, the opportunity to cross examine the CW1 was not given to the accused.
7. Examination of the accused under section 313 Cr.P.C.: The accused was examined under section 313 Cr.P.C. on 25.07.2022, wherein the accused admitted being member of complainant society having membership No. 1310. He also admitted that he has availed loan of Rs. 3 lakh on 11.03.2020 from the complainant Society upon executing loan bond bearing No. 190184 which he agreed to repay with interest in 60 instalments and upon default in payment of the instalments, he issued the cheque in question bearing No. 279016 dated 05.05.2021 in discharge of his liability. He also admitted that the cheque in question was dishonored vide return memo dated 11.05.2021 for the reason 'Funds Insufficient". He also admitted having received legal demand notice. He admitted his signatures on the cheque in question, however, denied filling of it's particulars, which is contrary to his statement made U/S 251 CrPC. He stated that the complainant has filed this case against him as he could not make the payment of loan amount in time. He stated that he does not intend to lead defence evidence.
8. Final Arguments: I have heard both the parties, pursued the material on record and considered the submissions advanced. Learned counsel for the complainant with the help of Section 118 (a) and Section 139 of the Act argued that complainant has successfully proved guilt of accused for the commission of offence punishable under Section 138 of the Act beyond all reasonable doubt by way of ocular as well as documentary evidence on record. On the other hand, it has been argued on behalf of the accused argued that complainant has failed to establish the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:20:51 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 5 Vs. Vineet Kumar Gera guilt of accused for the commission of offence under Section 138 of the Act beyond all reasonable doubts as the cheque given by the accused as security has been misused by complainant society after filling it's particulars.
9. Appreciation of evidence and finding: Now coming to the merits of the case, I first deem it pertinent to enunciate the law relating to dishonour of cheque.
10. To bring home a liability under section 138 of The Negotiable Instruments Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz,
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
11. Thus, for securing conviction under section 138 of NIA following points Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:20:55 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 6 Vs. Vineet Kumar Gera are required to be proved:
a) The cheque was issued by the drawer in discharge of any debt or other liability.
b) It must be legally enforceable debt or liability.
c) The cheque must be presented by payee within period of 3 months or it's validity whichever is earlier.
d) The cheque is dishonoured because of insufficient funds or it exceeds the arrangement.
e) A legal notice in writing demanding the payment of cheque is issued within 30 days of the receipt of information from the bank.
f) There is default by the drawer to make the payment within 15 days from the date of the receipt of notice.
g) The complaint is filed within 30 days from the date of cause of action.
12. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all.
13. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally enforceable debt or other liability. In the present case, the accused has admitted the issuance of cheque in question in favour of the complainant society. He has also admitted that the cheque in question was issued from an account maintained by him. He has also admitted his signatures on the cheque in question and filling of all particulars of the same during his statement U/S 251 Cr.P.C, however, he has denied filling particulars of the cheque in question during his Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:20:59 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 7 Vs. Vineet Kumar Gera statement recorded U/S 313 Cr. P.C. The accused has also admitted being member of complainant society and having availed loan of Rs. 3 lakh from Complainant society on 11.03.2020 upon executing bond bearing No. 190184. He has even admitted that he could not make payment of loan amount in time and he issued the cheque in question in discharge of his liability and that the same was dishonoured with remarks "funds Insufficient" upon presentation. He has even admitted having receiving of legal demand notice. In the present case, the accused has admitted entire case of the complainant. He has admitted the loan transaction and even, his failure to make payment of the loan amount in time. Further, the testimony of CW1 which stands uncontroverted, also established the liability of the accused for payment of the cheque amount. Thus, in view of testimony of CW1 which is also supported by admission of accused, it is established that the cheque in question was given by the accused to the complainant in discharge of his liability for repayment of the loan amount to the complainant society.
14. Section 139 of The Negotiable Instruments Act, 1881 also carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the Section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Having said that, what follows from the above is that the web of proof in a trial under Section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence in a trial under Section 138 NI Act thus, begins not from the home of the prosecution story but from the point of the defence. The presumptions Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:21:04 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 8 Vs. Vineet Kumar Gera carved out in favour of the complainant are those of law and not those of fact. The court is obligated to draw presumptions and only when the contrary are proved by the defence, the same will be said to be rebutted. Whereas the standard of proof remains the same in such a trial, the reverse onus of proof on the defence is guided by the principle of preponderance of probabilities only. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given.
15. In this regard, reliance can be placed on Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 wherein it was held as under:
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2022.07.26 16:21:08 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 9 Vs. Vineet Kumar Gera contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
16. In the present case, to rebut the presumption existing in favor of the complainant, the accused was required to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given. However, as discussed above, the accused has failed to prove the same. The accused has tried to dispute his liability by claiming that he has not filled any particulars of the cheque in question and the complainant has misused his cheque after filling it's particulars. Even, if the version of the accused is taken to be true, the said fact cannot extend any help to accused in the present case. The liability of accused has been assessed on the record. So, Complainant was having authority to fill and present said Cheque for encashment. When any person issues duly signed blank Cheque to another person, there is implied consent on his behalf, whereby, he gives authority to payee/holder that he may complete Cheque in all respect and present same for payment. As per provisions of Section 20 of Act, it is open to a person to sign and deliver blank and incomplete instrument and it is equally open for the holder to fill up blank and specify amount therein. Similar position has also been laid down in cases titled as General Auto Sales v. Vijaylakshmi 2005(1) CCC 654(Kerala), Purushottam Versus Manohar K. Deshmukh & Anr. 2007 STPL(DC) 988(BOM), Moideen Versus Johny 2006 Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:21:12 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 10 Vs. Vineet Kumar Gera STPL(DC) 700(KER) and Prabhakar Xembhu Versus Surendra V. Pai And Another 2006 STPL(DC) 660 (BOM), Sripati Singh Vs. State of Jharkhand & Ors Appeal No. 12691270 of 2021.
17. Since, the defences taken by accused stands beseeched and the complainant's story is established from the testimony of CW1, therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant and lastly, since the accused has not proved his defence to cause the probabilities to lie in his favour, the first element of Section 138 NI Act stands assembled. B. That cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier:
18. As far as this condition is concerned, the same is satisfied upon the perusal of the cheque in question Ex. CW1/B dated 05.05.2021 and the return memo Ex CW1/C dated 11.05.2021, thus, being presented within prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
C. That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank:
19. Section 146 of The Negotiable Instruments Act, 1881, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonour of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor. The fact that the cheque in question Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:21:17 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 11 Vs. Vineet Kumar Gera have been dishonoured due to 'Funds insufficient' has not been disputed by the accused throughout the trial. Further, it has also been admitted by accused during his statement U/S 313 CrPC and during his statement of admission and denial recorded U/S 294 Cr. P.C. Such admission of the accused clearly shows that he issued cheque from the account in question intentionally despite being aware that the same will not be honoured and the the defence has failed to rebut the presumption U/S 146 of the Negotiable Instruments Act, 1881 . Hence, this condition is fulfilled. D. The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid
20. As far as the making of demand by sending a legal notice is concerned, the complainant had sent the legal notice EX. CW1/D dated 19.05.2021 vide postal receipt EX. CW1/E to the accused and and it's tracking report Ex. CW1/F as per which the notice has been delivered upon the accused on 24.05.2021 and 08.06.2021 on both the addresses of the accused. The accused has also admitted during his statement U/S 251 of Cr.P.C and U/S 313 Cr.P.C that he has received the legal demand notice. Further, during his statement U/S 294 Cr. P. C, the accused has admitted the correctness of postal receipt. Thus, the fourth condition, to entail liability under section 138 of the Negotiable Instruments Act, 1881, in light of the above cited law and judgments, also fulfilled.
E. The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice:
21. The last condition is that the accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.07.26 16:21:21 +0530 CC NI Act.5498 /2021 Ashish Balaji Co-op. Urban T & C Society Page No. 12 Vs. Vineet Kumar Gera case, the accused has evidently failed to make the payment within fifteen days and even during trial, he sought time for making the payment, however, he did not make the payment. Thus, the last limb of what will entail the liability against the accused is also structured.
22. Ratio: Since in the instant case, the presumption of law operates in favour of existence of debt or liability, it is the burden of the accused, in the wake of denying the liability by bringing evidence showing that accused has no liability towards complainant in the present complaint. But as discussed above, the accused has failed to lead any evidence which could be termed as a probable defence. Thus, having considered the entire evidence, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of the Act. Accordingly, accused VINEET KUMAR GERA is found guilty of offence U/S 138 NI Act. Let he be heard on point of sentencing on another date.
23. Let the copy of this judgment be given to the convict free of cost and the same be also uploaded on CIS and Layers forthwith.
Digitally signed AISHWARYA by AISHWARYA
SHARMA
SHARMA Date: 2022.07.26
Announced in the open court on 16:21:26 +0530
(Aishwarya Sharma)
this day i.e. 26th day of July, 2022 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi