Delhi District Court
Satyavir Singh vs Kamlesh on 21 April, 2018
IN THE COURT OF MS NIHARIKA KUMAR : METROPOLITAN
MAGISTRATE - 04 : SOUTH : SAKET COURT : NEW DELHI
SATYAVIR SINGH vs KAMLESH
CC No. 467554/16 Digitally
U/s 138 Negotiable Instruments Act signed by
NIHARIKA
NIHARIKA KUMAR
KUMAR Date:
JUDGMENT 2018.04.21
17:08:54
+0530
(1) Serial number of the case : 467554/16
(2) Name of the complainant : Satyavir Singh
S/o Sh. Mangal Singh
R/o H-5C, SFS Flats, Saket,
New Delhi-110017.
(3) Name of the accused, : Kamlesh
parentage & address W/o Sh. Rajender Sharma
R/o SFS DDA Flat No. 34,
Pocket-2, Sector 12,
Dwarkadhees Apartment,
Dwarka, New Delhi-110062.
Also At:- F-105, Plot No. 5-A,
Sector 11, Raman Vihar,
CGHS Ltd, New Delhi.
(4) Offence complained of or proved: 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTED
(7) Date of Institution : 23/02/2016
(8) Date on which reserved for
judgment : 25/10/2017
(9) Date of Judgment : 21/04/2018
SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 1 of 14
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The brief facts of this case as carved out from the complaint are that the husband of the accused Sh. Rajender Sharma has approached the complainant for a short term financial assistance in April 2012 (i.e for 6 months) and promised that he will pay interest @ 2% per month on it. That having regard to the previous relationship between them and the financial condition of the husband of the accused, the complainant agreed to grant the said loan on 01/05/2012. That the husband of the accused received a sum of Rs. 5,00,000/- against duly executed receipt and promises to repay the same after 6-7 months. That after expiry of 7 months when the complainant asked the husband of the accused to repay the loan amount as promised, he sought some more time. That on 03/12/2012 in discharge of above said liability, the accused issued cheque bearing no. 500746 dated 03/12/2015 for Rs. 5,00,000/- drawn on Syndicate Bank, Ex. CW-1/2 (hereinafter "the cheques in question") in favour of the complainant, which on presentation was dishonoured and returned unpaid vide cheque returning memo dated 10/12/2015 with remarks "Account Closed". That a legal demand notice dated 02/01/2016 was sent by the complainant through his counsel to the accused through registered AD, despite receipt of which, payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 2 of 14 (hereinafter "the Act").
2. The pre-summoning evidence, by way of affidavit (Ex. CW-1/B) was filed by the complainant. In his affidavit of evidence Ex. CW-1/B, he reiterated all the averments made in his complaint and relied on documents Ex. CW-1/1 to Ex. CW-1/7, which are the original loan receipt dated 01/05/2012, original cheque in question, cheque return memo, legal notice of demand, registered post receipt, reply of legal notice, tracking reports respectively and the complainant is Ex. CW-1/A. After perusal of the complaint and affidavit of evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 23/02/2016 by my Ld. Predecessor.
3. Accused appeared pursuant to issuance of summons. Thereafter, notice U/s 251 CrPC was served upon the accused vide order dated 03/05/2016 to which the accused pleaded not guilty and claimed trial.
In her defence, accused stated that she has no liability towards the complainant, the cheque in question is not issued by her, however, it bears her signatures. Accused further stated that she does not know, how the cheque in question reached to the complainant and also does not know the complainant. Further, her account was closed two and half years ago and she has no legal liability to pay the cheque amount. Further, accused admit SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 3 of 14 the receipt of legal notice of demand and stated that she had replied the same.
4. The application u/s 145(2) NI Act was moved on behalf of the accused and the same was allowed vide order dated 08/08/2016 and an opportunity to cross examine the complainant (CW-1) was given to the accused.
In post summoning complainant evidence, complainant CW-1 was duly cross examined on behalf of accused and no other witness on behalf of the complainant has produced. Thereafter, complainant evidence was closed vide order dated 06/10/2016.
5. Thereafter, the statement of the accused u/s 313 r/w 281 CrPC was recorded vide order dated 03/01/2017. All material existing on record including the exhibited documents were put to accused. In her defence, the accused stated that she does not know about the transactions between her husband and the complainant and stated that she never issued any cheque to the complainant and does not know the complainant. Further, accused admit the receipt of legal notice of demand and had sent the reply.
Accused expressed her desire to lead DE and thereafter, accused examined herself as DW-1. No other witness on behalf of the accused has produced and therefore DE was closed vide order dated 21/08/2017.
SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 4 of 14
6. I have heard the arguments of both the parties and perused the record of the case meticulously.
7. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability;
iii) The cheque so issued was returned unpaid by the banker of the drawer;
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within15 days of the receipt of the said notice.
8. It is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 and other under Section 118(a) of the NI Act. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 5 of 14 needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
9. Section 138 Negotiable Instruments Act is attracted in cases where any cheque drawn by a person on an account maintained by him to the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence.
10. Undisputed factual matrix:-
On sifting of evidence on record and appreciation of arguments, the following facts have gone either unchallenged or are admitted:-
1. Cheque in question is signed by the accused.
2. The is filed complaint is within limitation.
3. The complaint is within jurisdiction.
11. Contentious points:-
On appreciation of arguments and sifting of evidence, the following contentious points arise:- SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 6 of 14
1. Whether there exists a legally recoverable debt?
2. Whether the cheque in question was given by the accused to the complainant as the payment of the loan?
1. Whether there exist a legally recoverable debt?
It is the case of the complainant that he had good terms with the accused and because of which accused approached complainant for financial assistance. Complainant granted the loan of Rs. 5 lakhs against duly executed receipt. Therefore, the legally recoverable debt exists.
On the contrary, accused denied to receiving any financial help and stated that no cheque was issued to the complainant.
In the cross-examination also complainant stated that loan of Rs.5 lakhs was taken by the husband of the accused and a receipt was issued Ex. CW-1/1. However, same is neither witnessed nor signed by the accused. It is pertinent to note here that nowhere in the cross-examination no suggestion is given with regards to genuineness of Ex. CW-1/1. At the stage of notice (under Section 251 Cr.PC) also nothing is stated by the accused in contrary to Ex. CW-1/1.
Also, one of the important fact disputed by the accused is whether she knew the complainant or not. On this fact, contrary stand is taken by the complainant. At the stage of notice under Section 145(2) Cr.P.C accused said that she didn't know the complainant. However, in the application under Section 315 Cr.PC it is stated that accused was the tenant of the daughter of SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 7 of 14 the complainant and the cheque in question was given as a security during the tenancy. It is pertinent to note here that, this fact is brought on record for the first time. It was not stated at the time of the application under Section 145(2) N I Act or at the time of framing of notice. The accused took the defence at the stage of framing of notice that she does not know how the cheque in question reached the complainant and that her account on which the cheque in question was issued was closed 2½ years ago. The accused is failed to explain firstly why the fact regarding the cheque being as security for tenancy was not mentioned earlier. From the perusal of the statements made by the accused, it seems that the accused consciously issued a cheque of the closed account during the period of tenancy. However, this fact has no burdening on the facts of the present case but it does reveals the conduct of the accused. At the stage of defence evidence also, it is stated by the accused that she never met the complainant personally. With regards to the relations of the tenancy with the daughter of the complainant, it is the submission of the accused that she never saw the daughter of the accused. Accused stated voluntarily that the rent agreement qua the tenancy was signed by one person on behalf of the complainant. Further it is also stated in the cross examination that even after the expiry of the tenancy when the accused did not receive the security cheque, she did not make any complaint in the police station due to the cordial relations with the complainant. This submission is contrary to the earlier stand taken by the accused whereby she denied knowing the SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 8 of 14 complainant at all. Therefore, it is very clear that statements made by the accused regarding knowing the complainant are very contradictory and therefore, not proved. Further, in Ex. CW-1/16 which is reply by the accused to the legal notice of demand sent by the complainant, in paragraph 3 accused has stated that the complainant somehow procured the cheque belonging to the accused. The accused has failed to explain, if any, action was taken by the accused after this or not.
Further, this case of the complainant that the husband of the accused approached the complainant for financial assistance. Accused has denied knowledge of any such transactions. However, as per Ex. CW-1/1 that is the receipt bears the name of Rajinder Sharma that is the husband of the accused. Accused has not denied the estranged marital relations with her husband and she did not deny the signatures of her husband on Ex. CW-1/1. She has just stated that she is not aware that the same is the signature of her husband or not. Further, accused did not give any separate undertaking regarding the payment of loan, however, she issued the cheque for the repayment of the loan. Further, accused did not deny clearly the execution of Ex. CW-1/1 and also did not call her husband as witness. No proof is given to show that Ex. CW-1/1 was not an original document.
It is the case of the complainant, he advanced money to the complainant as a friendly loan. To prove the same, complainant is placed on record promissory note executed by the complainant. SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 9 of 14
2. Whether the cheque in question was given by the accused to the complainant as payment.
It is the case of the complainant that the cheque in question was given as security for the loan advanced by the complainant to the husband of the accused. The accused has taken contrary stand with regards to the fact of the issue of the cheque to the complainant. It is pertinent to note that in the reply to the notice accused stated that she is not aware as to how complainant even possession of the cheque in question and complainant is misusing the same. However, in the defence evidence accused has brought a new fact that it is the daughter of the accused to whom the cheque in question was handed over as a security. The security cheque was given as accused took on rent a commercial space from the daughter of the complainant. Accused has admitted her signatures on cheque in question. Accused has referred to one Mr. Soni again and again with regards to signing of the rent agreement and handing over the security cheques to him but he is not brought as a witness to prove any of the fact stated by the accused. Further, during her cross examination accused did not deny the execution of the cheque in question. On question whether the cheque was filled by her husband of the accused stated that she did not know whether the name amount and the date were filled by her husband. Further, accused did not state earlier to whom the cheque in question was meant for. She stated that the cheque was given to Mr. Soni to hand over to respected landlords. In the cross examination of the accused it is submitted SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 10 of 14 that the rent of the shop of the commercial space was Rs. 20,000/- as per Ex. DW-1/C1. The accused did not dispute this document. It is stated in the document that the tenant had deposited 2 months rent i.e. sum of Rs.40,000/- as a security deposited amount. It is nowhere stated in this rent agreement that the blank cheques will be taken as a security. Therefore, the defence taken by the accused that the cheque was given as a security does not raise is not probable enough to dispute the case of the complainant.
No evidence was led by the accused with regards to the allegations that the complainant is running an illegal money lending business and no suggestions were put to the complainant with respect to the same. It is argued by the accused that complainant had not executed the passport entry of the bank account in which the transaction had taken place. No suggestion as such nature is put forth during the cross-examination of the complainant.
Further it is argued by the accused that the cheque issued got dishonoured for the dated account closed and not for insufficiency of the funds. Therefore, accused is not legally liable to pay any amount to the complainant. In the case of NEPC Micon Limited Vs. Magma Leasing Limited, 1999 IV AD (SC) 453, it was held that the offence under Section 138 N I Act is also attracted when the account is closed. It was held that the returning of the cheque on account of 'account being closed' would be similar to a situation where the cheque is returned on account of insufficiency of funds in the account of the drawer of the cheque. Before one closes his account on SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 11 of 14 his bank, he withdraws the entire amount standing to his credit. Withdrawal of the entire amount, therefore, mean that t here was no fund in the account to honour the cheque that clearly brings the case within the four corners Section 138 of the N I Act. Further if a cheque is issued from an account which has already been closed, then presumption of commission of offence of cheating under Section 420 IPC also arises.
12. In my opinion, the complainant has been able to firmly established the fact of having good friendly terms with the accused. However, the accused has neither denied that the complainant is completely unknown to her. Even though no adverse presumption is drawn if the accused do not get examined herself as a witness, however plain averments without any proof by way of document or witness are not enough to rebut the strong statuary presumption in the favour of the complainant.
13. In consonance of the presumptions u/s 118 and 139 of the NI Act following essentials are required to be established-
i) That there is legally enforceable debt or liability;
The complainant in the present case that there was a legally recoverable debt which the accused is liable to return. Even though the accused has objected to the existence of such debt by but the accused have made contradictory statements regarding the same. On one hand accused said that since she does not know the accused and on the other hand at later SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 12 of 14 hand she took the defene that same were given as a security to daughter of the complainant. And more importantly neither the misuse of the cheque is proved nor giving same for the security is proved. Therefore, the accused is not successful in creating a doubt or rebutting the presumption arising in the favour of the complainant.
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability- accused has not been able to rebut the same as no probable defence is raised by the accused. On the other hand complainant was able to prove that the loan was advanced to the husband of the accused. Therefore, it is proved that there was a legally enforceable liability and cheque in question was issued to discharge the same.
iii) The cheque so issued was returned unpaid by the banker of the drawer, same is admitted by both the parties.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within15 days of the receipt of the said notice. The accused did not dispute receiving of the legal notice.
14. Conclusively, in light of the above discussions and reasons, this court finds accused Kamlesh guilty of offence punishable U/s 138 of the Act. Hence, accused Kamlesh stands convicted for the said offence. SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 13 of 14
15. Let the convict be heard on the quantum of sentence on today itself ie 21.04.2018 at 02.00 pm. Copy of this judgment be given dasti to the convict.
Announced in the open court on 21/04/2018 (NIHARIKA KUMAR) MM-04/NI Act/SD/Saket New Delhi/21/04/2018 Certified that this judgment contains 14 pages and each page bears my signature.
(NIHARIKA KUMAR) MM-04/NI Act/SD/Saket New Delhi/21/04/2018 SATYAVIR SINGH vs KAMLESH CC No. 467554/16 Page 14 of 14