Delhi District Court
16. In The Case Of Hiten P. Dayal vs Bratindranath Banner- on 6 September, 2021
IN THE COURT OF MS DIVYA ARORA, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
CC No.17442-17
Under Section 138 of N.I. Act
In the matter of:
RAVINDER SINGH
s/o Late Shri Sukhbir Singh
R/o A -95, Nand Ram Park,
Uttam Nagar,
New Delhi - 110 059. ... Complainant
Versus
NALI VAMISDHAR
S/O Shri Krishna Reddy,
R/o 1st floor,
Sai Vamsika Residency
Vinayak Nagar, Peerzadi Guda
Hyderabad, Telangana. ... Accused
Date of Institution : 10.08.2017
Date on which judgment was reserved : 16.01.2020
Date of Judgment : 06.09.2021
JUDGMENT
1. The present complaint has been filed by the complainant against the accused under section 138 N. I Act, 1881.
2. The brief facts as alleged by the complainant are that the accused approached the complainant for a friendly loan of Rs.5 lacs as RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.1 OF 11 the accused was in dire need of said amount. The complainant provided a friendly loan of Rs.5 lacs without any interest. The accused in order to show his bonafide has issued a post date cheque in favour of the com- plainant bearing no.389243 dated 06.06.2017 for a sum of Rs.5 lacs.
3. When the complainant presented the said cheque in the bank, it was returned unpaid by the banker of the complainant vide Bank Returning Memo dated 15.06.2017 with remark of ''Kindly contact drawer / drawer bank & Present Again''.
4. The complainant thereafter issued a legal demand notice dated 10.07.2017 but the said notice was returned with remarks '''un- claimed''. Hence the present complaint under Section 138 Negotiable In- struments Act 1881 (hereinafter referred as "NI Act") was filed on 10.08.2017.
5. In order to prove his case, the complainant examined him- self as CW1 by way of affidavit Ex.CW1/A and relied upon the follow- ing documents:-
a) Cheque Ex.CW1/1 b) Returning Memo Ex.CW1/2c) Legal Demand Notice is Ex.CW1/3.
d) Original Postal Receipts Ex.CW1/4.
e) Tracking Report is Ex.CW1/5.
f) Unclaimed Return Registered Envelope is Ex.CW1/6.
RAVINDER SINGH V. NALI VAMISDHAR
CC No.17442-17 PAGE NO.2 OF 11
6. On finding of prima facie case against the accused, the ac- cused was summoned on 21.09.2017, where the accused appeared before the court on 29.01.2019.
7. Thereafter, notice u/s 251 CrP.C. was framed against the accused on 29.01.2019 to which he pleaded not guilty and claimed trial.
8. The plea of defence of the accused was recorded and the accused has stated that the cheque in question does not bear h is signa- tures and he has not issued the cheque in question to the complainant. Further, the accused has stated ''I have not taken the alleged loan from the complainant. I have not received the legal notice sent by the com- plainant. I have brought a certificate issued by ICICI Bank Ltd which states that cheque bearing no.389268 (cheque in question) from account no.007501028795, has been destroyed in our system on 17.01.2015.
9. After framing of notice the complainant examined himself as CW1 and adopted the contents of affidavit Ex.CW1/A tendered in PSE. CW1 was cross examined by Ld. Counsel for accused, thereafter the complainant evidence was closed and the matter was listed for state- ment of accused under Section 313 CrPC.
10. Statement of accused was recorded under Section 313 CrPC read with Section 281 Cr.P.C. on 23.08.2019 wherein all the in- criminating circumstances appearing in evidence against the accused was put to him to which he stated that,''The said cheque was stolen from him. I have lodged a complaint with request to destroy the stolen cheque on 17.01.2015 to my banker. I have not received a legal demand notice sent RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.3 OF 11 by complainant. After inspection of file, I found that the legal notice was sent to wrong address. This is a false case against me, I owe no liability to complainant. I do not wish to lead DE''.
11. Accused in his defence, examined DW1, Shri Swapnil Jhaldiyal, Deputy Manager, ICICI Bank. The said witness was cross ex- amined by the Ld. Counsel for the complainant. No other evidence was led by the accused.
12. Thereafter, the Ld. Counsel for complainant and the ac- cused were heard at length in the present case and the matter was re- served for Judgement.
13. Before proceeding to the merits of the case, it is important to lay down the basic provision of law with respect to Section 138 NI Act which is as follows:-
14. In order to ascertain whether the accused has committed on offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:-
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or oth-
er liability.
(b) The cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insuffi- cient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.4 OF 11
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above mentioned ingredients are satis- fied that the person who has drawn the cheque can be set to have com- mitted an offence u/s 138 NI Act.
15. It is important to recall Section 118 of the Indian Evidence Act 1872 and Section 139 of the N.I Act here. Section 118 (a) of the Act provides that until the contrary is proved, it shall be presumed that ''that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negoti- ated or transferred, was accepted, endorsed, negotiated or transferred for consideration''. Further, Section 139 of the Act lays down that ''it shall be presumed, unless the contrary is provided, that the holder of a cheque re- ceived the cheque of the nature referred to in section 138 for the dis- charge, in whole or in part, of any debt or other liability.
16. In the case of Hiten P. Dayal Vs Bratindranath Banner- jee (2001) G SCC 16, the Hon'ble Supreme Court of India had observed that ''Because both sections 138 and 139 CrPC required that the court shall presume the liability of the drawer of the cheque for the amount for which the cheques are drawn as noted in State or Madras Vs A. Vaid- hyanatha Iyer AIR 1958 SC 61, it is obligatory on the court that raise this presumption in every case where the factual basis for raising of the RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.5 OF 11 presumption has been established. It introduces an exception to the gen- eral rule as to the burden of proof in criminal cases and shifts the onus on to the accused''.
17. Further, in the case of K. N. Beena Vs Muniyappan AIR 2001 SC 2000, it was established as follows ''In complaint under Section 138 the court has to presume that the cheque had been issued for a debt or liability, this presumption is rebuttal however, the burden of proving that the cheque has not been issued for the discharge of debt or liability lies on the accused''.
18. Let us begin by examining first issue, the defence of non service of legal notice. Ld. Counsel for accused has raised the objection that the legal notice was not received by the accused. At the time of framing of notice under Section 251 CrPC and Statement recorded under Section 313 CrPC, accused stated that he did not receive any legal notice sent by complainant. To this counsel for complainant submits that the said objection is not maintainable as the summons, on which the accused before this court, were issued at same address on which legal notice was sent. The address on the legal notice once having been shown to be the correct address of accused and legal notice having been dispatched by re- gistered AD, a presumption of due service arises in view of Section 27 of General Clause Act & Section 114 of Indian Evidence Act and now it is upon accused to prove that notice was not served upon him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. To the contrary, perusal of record shows RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.6 OF 11 that complainant has issued a legal demand notice to the accused and same was dispatched by way of speed post. Thus, a mere denial of the service of legal notice would not ipso fact rebut the presumption of due service.
19. In view of law laid down by Hon'ble Supreme Court in 'C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 555, wherein it was held that rigour of requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 N.I. Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice.
20. Another defence led by counsel for accused is that the cheque in question does not bear the signature of accused. In this regard counsel for complainant submits that the reason for dishonour of cheque as per return memo is ''Kindly contact drawer/drawee bank and present again'' and not ''signature differs''. Counsel for complainant further sub- mits that he had moved an application for comparison of signatures. Upon filing of reply by accused's counsel, the said application was de- cided wherein it was held that the comparison of signatures must be done RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.7 OF 11 by this court at the relevant stage. In view of power given under Section 73 Indian Evidence Act, this court at the stage of final arguments com- pared the signatures of accused on cheque in question with the signature done on Notice framed under Section 251 CrPC and statement of ac- cused recorded under Section 313 CrPC. This court is of the view that there is no difference between the signature on cheque in question and admitted signature.
21. Mere denial of a signature of the accused on the cheque in question is not sufficient to hold that the signature found is not the signa- ture of accused. It is not upon the complainant to prove the signature of accused on cheque in question, rather he only has to prove that the said cheque in question has been issued in discharge of existence of debt or legal liability. If the accused has raised such defence, it is upon him to prove that the signature on cheque is not his. In this regard, accused has not brought an iota of evidence rather he is opposing the application of complainant for comparison of signatures. He stated in his application that bank official is the correct authority for comparison of signature. If the correct authority is bank official in the opinion of accused, he should have summoned the same. Therefore, in the opinion of this court, the said defence is a mere sham defence to escape from the liability arising from the cheque in question.
22. Another defence raised by accused is that the cheque in question was not issued in discharge of existence debt or liability rather RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.8 OF 11 is a stolen cheque and the said cheque was destroyed by Bank in 2015. In the support of his defence accused examined a witness DW1, Shri Swapnil. Perusal of examination and cross examination of DW1 reveals that there is no proper written authorization letter for the concerned wit- ness from the bank official to testify. DW1 has stated in his cross exam- ination that he has no knowledge of the fact whether any copy of police complaint was filed when bank was intimated about cheque being stolen. He further stated that he does not remember whether the information of cheque being stolen was given in writing. He also stated that the said cheque was destroyed after receiving the information about cheque being stolen. In the support of this statement, he has also produced on record a certificate on behalf of ICICI Bank, Ex.DW1/1, showing that the cheque in question has been destroyed in the book of account of the bank.
23. It has been held in Hiten P Dayal v. Bratindranath Banerjee reported in (2001) 6 SCC 16 that a mere plausible defence given accused is not enough to rebut the presumption and the accused has to necessarily disprove the prosecution case by leading cogent evid- ence that he had no debt or liability to issue the said cheque.
I want to add here that the accused is not expected to rebut the presumption beyond all reasonable doubt. The standard of disproof is only on the level of preponderance of probabilities. The nature of burden has been succinctly laid down by Supreme Court in Ms Naryan Menon v. State of Kerala & Another reported in AIR 2006 RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.9 OF 11 SC 3366, wherein the Supreme Court held that the initial burden is upon the accused to rebut the presumption under Section 139 of the Act. Only in the event of discharging the said initial burden, the onus shifts to the complainant.
24. The accused in the present case has failed to lead any evidence at all to aid him in the discharge of his onus. He has not been able to rebut the presumption that is raised in favour of the complainant with respect to the existence of legally recoverable debt or liability.
25. In view of the forgoing discussion, the accused has miserably failed in probablizing his defence, even on the scale of preponderance of probabilities. In the present case, accused has not brought on record any written complaint made to the bank official or to the police officials regarding the stolen cheque. The only evidence brought on record by him is the bank official whose testimony does not release the burden of accused.
26. In view of the above, I have no hesitation in holding that the defence as advanced by accused is a sham defence nothing but a cock and bull story to escape from the liability arising from cheque in question. Therefore, in my opinion, the accused has not succeeded in rebutting the presumption of legal liability even on the scale of preponderance of probabilities.
RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.10 OF 11
27. The complainant has with the aid of evidence led a presumption of legal liability under Section 118 read with Section 139 of N. I. Act, has successfully proved the basis ingredients of offence under section 138 N. I Act.
28. Resultantly, the accused NALI VAMISDHAR stands convicted for the offence under Section 138 NI Act. Let the convict be heard separately on the quantum of sentence.
29. Let a signed copy of the Judgment be supplied to the accused, free of cost, and a copy of the same be placed on record.
Decided on 06.09.2021 Announced in open court.
(DIVYA ARORA) MM (NI Act)-01/SW/DWK New Delhi RAVINDER SINGH V. NALI VAMISDHAR CC No.17442-17 PAGE NO.11 OF 11