Delhi District Court
Cc No. 28267/4 vs . on 23 February, 2012
IN THE COURT OF SH. SACHIN SANGWAN:
METROPOLITAN MAGISTRATE: DWARKA COURT
COMPLEX: NEW DELHI
JUDGMENT
CC No. 28267/4 MCF FINLEASE (P) LTD. ........ Complainant Vs. BANARSI DASS ............... Accused Date of Institution : 30.06.2007 Date of Matter reserved for judgment : 09.02.2012 Date of judgment : 23.02.2012 PARTICULARS OF THE CASE
1. CC No. of the case : 28267/4
2. Name of complainant : MCF Finlease Private Limited, Through its Director Sh. S. P. Chawla, Official Address : B204, Vikas Tower, Community Centre, Vikas Puri New Delhi 110018.
3. Name of accused : Sh. Banarsi Dass, s/o : Sh. Kesar Dass, R/o : A95, Himgiri Enclave, Chander Vihar, CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 1/10 Nilothi Extension, New Delhi.
4. Offence complained of : Section 138 of Negotiable Instruments Act, 1881
5. Plea of accused : Pleaded Not Guilty
6. Final Order : Convicted
7.Date of such order : 23.02.2011 BRIEF FACTS OF THE CASE:
1. The present complaint is a complaint filed u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred as N.I. Act). As per the complaint, the following facts are alleged by the complainant:
A. That the accused had taken a loan of Rs. 50,000/- from the complainant and had agreed to pay the interest at the rate of 18 per cent per annum on the said amount and executed documents to this effect on 28.08.2002. That again on 10.01.2003 the accused took an additional loan of Rs. 30,000/- at the rate of 18 per cent per annum for fulfilling the demand of in laws of his daughter and at his request the loan was given to him by cash as same was urgently required.
B. That accused in discharge of his total liability on 27.04.2004 issued a cheque bearing no. 129193 dated 01.05.2004 for an amount of Rs. 1,02,200/- from his account no. 69842 drawn on Bank of India, Kesho Pur Branch, New Delhi in favour of the complainant (hereinafter referred to as cheque in CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 2/10 question). The complainant accepted the aforesaid cheque towards the full and final payment of the loan with interest.
C. That the complainant presented the said cheque to its banker i.e. Punjab and Sindh Bank, Rani Jhansi Road, New Delhi but the said cheque returned unpaid with the return memo dt. 05.05.2004 with remarks "Funds Insufficient". As per the complainant the fact of dishonour of cheque was intimated to the accused by legal notice dt. 11.05.2004 sent to him through registered post and UPC and the cheque amount was demanded from him but the accused failed to make the payment despite service of notice on him. Accordingly, the complainant filed the present complaint u/s 138 of Negotiable Instruments Act,1881.
2. The complaint was supported by the affidavit of Sh. S. P. Chawla, Director of the complainant company. Along with the affidavit, following documents were filed:
Copy of Board Resolution in favour of said director - Ex.CW1/1 Promissory Note and receipt dt. 29.08.2002 regarding loan of Rs. 50,000/-- Ex.CW1/2
Promissory Note and Receipt dt. 29.08.2002 regarding loan of Rs. 30,000/- - Ex.CW1/3 Voucher dt. 10.01.2003 regarding receival of Rs. 30,000/-- Ex.CW1/4
Original cheque bearing no. 129193 dt.01.05.2004 - Ex.CW1/5 Deposit Slip dt. 03.05.2004 regarding the deposit of the cheque into the account of complainant -Ex.CW1/6 Cheque dishonour memo dt. 05.05.2004 -Ex.CW1/7 Legal Demand Notice dt. 11.05.2004 -Ex.CW1/8 CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 3/10 UPC Receipt -Ex.CW1/9 Postal Receipt -Ex.CW1/10 Acknowledgment Card -Ex.CW1/11 Copy of Certificate of Incorporation of complainant company -Ex.CW1/12 Copy of Form No. 32 under Companies Registration Act regarding appointment of Sh. S. P. Chawla as Director in the complainant company -Ex.CW1/13 Copy of letter regarding issue of cheque in question by respondent-accused -Ex.CW1/14 Copy of Memorandum and Articles of Association of the complainant company -Ex.CW1/15
3. Accordingly, cognizance of offence u/s 138 of N. I. Act was taken by the court and the accused was summoned. On appearance of accused notice of accusation was framed to which accused pleaded "not guilty" and claimed trial. Accordingly, matter was fixed for complainant evidence.
COMPLAINANT EVIDENCE
4. Three witnesses were examined by the complainant i.e. CW1, S. P. Chawla, Director of the complainant company, CW2, Ram Prasad Jain, clerk cum cashier, Punjab and Sindh Bank, Paharganj, New Delhi and CW3, Vijay Kumar, cashier of Bank of India, Keshov Pur Branch. CW1 relied upon the evidence already filed on the record at pre-summoning stage. CW2 in order to prove the dishonour of cheque filed true copy of statement of bank account of the complainant i.e. MCF Finlease Private Limited as Ex.CW2/A and the copy of register of bills for collection as Ex.CW2/B. CW3 in order to prove the presentation and dishonour of cheque filed the documents CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 4/10 Ex.CW3/A i.e. authority letter in favour of CW3 issued by branch manager of Bank of India, Ex.CW3/B i.e. certified statement of bank account of accused Banarsi Dass and Ex.CW3/C i.e. certified true copy of cheque returned book. CW2 and CW3 were not cross examined by the accused despite opportunity for the same. However, CW1 was duly cross examined by the counsel for accused.
During the cross examination CW1 has filed an additional document i.e. a hire purchase agreement between the complainant and the accused as Ex.CW1/16 as same was insisted upon by the counsel for accused. Thereafter the complainant evidence was closed and the incriminating evidence was put to the accused u/s 313 Cr.P.C. to enable him to explain the same personally.
EXAMINATION OF ACCUSED U/s 313 OF CR.P.C.
5. During the examination of accused u/s 313 of Cr.P.C. as aforesaid the accused admitted that he had issued the cheque in question. However, he stated that he issued the same to late Sh. H. C. Chawla, brother of S. P. Chawla, the complainant in the present case. Accused submitted that he had given the cheque to Late Sh. H. C. Chawla because he got two vehicles financed by him. He submitted that he had issued the cheque as a blank cheque to Late Sh. H. C. Chawla and he was making repayments of the financed vehicle through cash payments to late Sh. H. C. Chawla and the cheque in question was to be returned to him after clearing dues of Late Sh. H. C. Chawla. He further submitted that the complainant S. P. Chawla re- possessed the financed vehicles and therefore he stopped making payments of the repossessed vehicle. He denied that he had taken loan of Rs. 50,000/- and Rs. 30,000/- as personal loans. Instead he stated that he had taken the CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 5/10 loans for vehicle. As accused wanted to lead defence evidence, matter was fixed for same.
DEFENCE EVIDENCE
6. In defence evidence accused examined himself as a defence witness (DW1) and also examined his son as DW2. As a witness the accused deposed that his son got a car financed from Sh. H. C. Chawla in year 2001 and Sh. H. C. Chawla took the cheque in question from him for the purpose of guarantee of repayment of financed vehicle. He deposed that his son repaid the installments regarding the financed amount and receipts were issued regarding the same. He further deposed that later on Sh. S.P. Chawla re-possessed the two vehicles for which loan had been taken by his son and accordingly accused and his son stopped making repayment regarding financed vehicles. DW2 i.e. the son of the accused also deposed that he had got two vehicles financed by the complainant company. He deposed that he had defaulted regarding installment of one of the financed vehicles and the complainant imposed some bouncing charges on him. He deposed that he did not pay the bouncing charges instantly and told the complainant that he will pay the same later on. As per his testimony, the complainant did not agree to the same and repossessed both the financed vehicles. He deposed that the cheque in question was given to the complainant when one of the vehicles was financed by the complainant. He deposed that the complainant company took cheque in question as a security from him. He also filed the receipts of payments made to the complainant in regard to the financed vehicles. The said receipts were exhibited as Ex. DW2/1 to Ex. DW2/20. No other document was filed in defence evidence. Both of the defence witnesses were duly cross examined by the counsel for the complainant and CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 6/10 matter was fixed for final arguments.
FINAL ARGUMENTS
7. During the arguments the counsel for the complainant submitted that the complainant has proved by documentary evidence that accused had taken loan of Rs. 80,000/- from the complainant and has issued the cheque in discharge of the same. He also submitted that the complainant has proved all the ingredients of the offence u/s 138 N.I. Act,1881, by documentary evidence. On the other hand, the counsel for the accused has submitted that the complainant had obtained the signatures of the accused on blank loan documents on the pretext of giving him the vehicle loan and the same documents have been used by the complainant in the present case. He has argued that accused has no liability to pay the cheque amount to the complainant and accordingly, accused is not liable u/s 138 of N.I. Act.
DECISION OF THE CASE AND REASONS THEREOF
8. After considering the evidence led by both the parties, the statutory presumptions provided in the N.I. Act and the arguments of the counsels, the court has come to the conclusion that accused is liable for the offence u/s 138 of N.I. Act. The reasons for the said conclusion are as follows:
A. The complainant has proved by way of documentary evidence that accused had taken loan of Rs. 50,000/- and another loan of Rs. 30,000/- from the complainant. The receipt/promissory note Ex. CW1/2 bears signatures of the accused. It shows that the accused had received Rs. 50,000/- from the complainant. It also bears signature of Sunil Kumar, son of the accused as a CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 7/10 witness and even mentions the cheque number through which the amount of Rs. 50,000/- was disbursed to the accused. Similarly, receipt/promissory note Ex. CW1/3 bears signatures of the accused as well as his son Sunil Kumar and mentions that the amount of Rs. 30,000/- was disbursed to the accused by way of cash.
B. The complainant has proved by way of documentary evidence that the cheque in question was issued by the accused towards full and final settlement of his personal loan taken for marriage of daughter including cash loan of Rs. 30,000/-. The complainant has filed a receipt issued by the accused to said effect which bears signatures of the accused as well as his son Sunil Kumar. Even otherwise, the presumption u/s 139 of N.I. Act provides that "it shall be presumed that, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 of N. I. Act for the discharge, in whole or in part, of any debt or other liability."
C. The complainant has proved the presentation of the cheque in question, its dishonour for reasons "funds insufficient" and giving of legal demand notice to the accused regarding the same.
D. On the other hand accused has not denied his signatures on any of the aforesaid documents including the cheque in question. The main defence raised by the accused is that he had not taken personal loan from the complainant but had taken vehicle loan instead. However his denial does not help him at all. The documentary evidence filed by the complainant is a written acknowledgment by the accused, of the fact that he had taken CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 8/10 personal loan of Rs. 50,000/- and Rs. 30,000/- as claimed by the complainant. Though the counsel of the accused had argued that the complainant had obtained the signatures of the accused on blank loan documents however the accused has not proved existence of such circumstances that may support the said claim.
E. Furthermore, even if the defence of accused is taken into consideration, the accused has failed to prove that he had paid off the complainant regarding his vehicular loans. DW2 had filed certain receipts of part payments made towards repayment of vehicular loans but it does not show that even those loans were paid off entirely. The accused has claimed that the complainant repossessed the financed vehicles and therefore he did not pay the complainant further. However he has not proved as to what were the terms and conditions of said vehicular loan, how much loan was repaid by him, how much was outstanding and how the said loan got discharged by repossession of vehicles.
F. Lastly, regarding the cheque in question, the accused has stated that he never received the legal notice regarding its dishonour. This defence of accused regarding an alleged procedural infirmity in the case of the complainant does not help him much for the reason that he has not disputed the correctness of his address as mentioned in the legal notice sent by the complainant. Further more, the complainant had filed acknowledgment card regarding the receipt of legal notice at the address of the accused. Accordingly, the service of legal demand notice upon the accused stands proved.
CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 9/10 Thus the complainant has proved its case beyond any reasonable doubt and accordingly, the accused Banarsi Dass is convicted u/s 138 of N.I. Act,1881.
(ANNOUNCED IN THE SACHIN SANGWAN
OPEN COURT ON METROPOLITAN MAGISTRATE
23rd February, 2012) Spl. N. I. ACT COURT NO.08:
ROOM NO. 310:
DWK: NEW DELHI.
CC No. 28267/4 MCF Finlease Pvt. Ltd. v. Banarsi Dass Pages 10/10