Delhi District Court
Chengalvaraya Naidu V. Jagannath 1994 ... vs K on 13 January, 2014
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGEI, NEW
DELHI DISTRICT, NEW DELHI
C.C. No:829/11
Unique Case ID No.02403R0101442011
M/s. BRM Lease & Credit Ltd.
M118, Connaught Circus, New Delhi 110001.
Through:
Sh. Brij Mohan Wadhwa,
S/o Sh. J.D. Wadhwa,
C/o M/s BRM Lease & Credit Ltd.
.....Complainant
Versus
1. Shri. Manoj Kumar Sharma
S/o Sh. Y.N. Sharma,
R/o C27, Third Floor,
Near Mrignayani,
Dilshad Colony, Delhi.
Also at :
1. E76A, Dilshad Garden, Delhi.
2. M1/B4, Dilshad Garden, Delhi.
.....Accused
COMPLAINT UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT, 1881
Date of Institution: 15.07.2006
Date of Reserving Order:11.11.2013
Date of Judgment: 13.01.2014.
JUDGMENT
CC No.829/11
BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 1 of 7
Brief facts
1. The brief facts of the present complaint filed U/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") are that the complainant BRM Lease and Credit Limited is a company incorporated under the Companies Act having its registered office at Connaught Circus, New Delhi. The complainant company is stated to be engaged in providing finance to its customers and giving vehicles and goods on lease on hire purchase basis.
2. It is stated that the accused Sh. Manoj Kumar Sharma had taken loan from the complainant against the security of TATA Sumo Jeep No. DL 1CF 3709, engine no. 700041 and had entered into loan cum hypothecation agreement no. 15215 with the complainant. It is stated that acused had defaulted in making payments of the monthly installments on due dates and after various demands made by the complainant, the accused issued cheque bearing no. 509895 dated 15.05.2006 for Rs.94,925/ drawn on Punjab National Bank, Dilshad Garden, Delhi. The complainant presented the cheque and the same was dishonoured for reason "funds insufficient" vide return memo dated 26.05.2006. The complainant sent legal notice dated 12.06.2006 to the accused through registered AD and UPC. It is stated that despite service of the legal notice, the accused has not made payment of the cheque amount within the stipulated period and the accused has committed the offence U/s. 138 of NI Act.
Proceedings Before Court
3. The present complaint was received by way of assignment on 15.07.2006.
Summons were issued against the accused by Ld. Predecessor Judge. Thereafter, notice of accusation was framed against the accused on 23.03.2010 to which he pleaded not guilty and claimed trial.
4. In support of its case, the complainant has produced CW1 Sh. Brij Mohan CC No.829/11 BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 2 of 7 Wadhwa who relied on his evidence affidavit Ex. CW1/A and documents Ex. CW1/1 to Ex. CW1/8. Thereafter, CW1 Sh. Brij Mohan Wadhwa was cross examined after which the complainant closed its evidence.
5. During examination conducted U/s. 313 Cr.P.C, the accused Sh. Manoj Kumar Sharma admitted that he entered into loan cum hypothecation agreement no. 15215 dated 15.12.2003 Ex. CW1/D1. He further stated that there was no settlement between him and the complainant and the cheque in question was issued by him to a person by name of Sh. Kallu, who used to work for the complainant. He stated that the cheque was issued at the time of taking loan from the complainant. He further stated that he had paid the entire loan amount to Sh. Kallu in cash. He further stated that when he asked Sh. Kallu to return the cheque, he told the accused to visit the complainant's office where the cheque was lying. He further statd that he did not receive any legal notice and a false case has been filed as the accused has paid the entire loan amount to the complainant through Sh. Kallu.
6. In support of his defence, the accused produced DW1 Sh. Dharmender Kumar who was examined in chief and thereafter cross examined. Accused also produced himself as DW2 and was examined in chief and thereafter cross examined. The accused also produced DW3 Sh. Vipin Kumar from Punjab National Bank, Dilshad Garden Branch, New Delhi who was examined in chief and thereafter discharged.
Arguments of Advocates
7. During arguments, Sh. Ruchir Batra, Ld. Advocate for the complainant has submitted that the presumption U/s.139 of the NI Act is running against the accused and the accused has failed to rebut the said presumption.
8. On the other hand, Sh. Mohit Sharma, Ld. Advocate for accused has submitted CC No.829/11 BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 3 of 7 that no legal notoice was served on the accused and the complainant witness was not authorised to depose on behalf of the complainant. He further submitted that the complainant has withheld vital documents. In support of his submissions Ld Advocate the decisions in K. Krishna Reddy And Anr V. K. Rajender and another (2001) 8 Supreme Court Cases 458, Sh. Vishnu Dutt Sharma V. Smt Daya Sapra MANU/SC/1101/2009, K.Bhaskaran V. Sankaran Vaidhyan Balan and Anr 1999 Supp(3) SCR 271, V.Raja Kumari V. P. Subbarama Naidu & Anr Appeal (crl.) 887 of 1999, S.P. Chengalvaraya Naidu V. Jagannath 1994 AIR 853, Niranjan Kaur V. New Delhi Hotels Ltd and Ors ARI 1988 Delhi 332.
Findings
9. This court has heard Ld. Advocates for the complainant as well as accused persons and perused the record.
10.The accused has admitted the issuance of cheque bearing no.509895 dated 15.05.2006 for Rs. 94,925/ Ex.CW1/2 as the signatures on the cheque are not disputed by him. Therefore, the presumption U/s. 139 of the NI Act is raised.
11. In Rangappa v. Sri Mohan AIR 2010 SC 1898 it was observed by the Hon'ble Supreme Court as under :
"14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable CC No.829/11 BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 4 of 7 debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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. As clarified in the citations, the accused can rely on the materials submitted by the complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. " (emphasis added)
12. Therefore, the presumption raised U/s. 139 of the NI Act is of legally enforceable debt and it is for the accused to raise a probable defence to rebut the presumption.
13.As far as the defence that no legal notice was served on the accused, the said defence is without any merit as the defence witness DW1 Sh. Dharmender Kumar has deposed in his cross examination that the accused was residing at C CC No.829/11 BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 5 of 7 27, 3rd floor, near Mrignayani, Dilshad Colony, Delhi in June 2006. The legal notice dated 12.06.2006 has been issued at the same address in addition to two other addresses. Therefore, the legal notice was sent at the correct address and in view of Section 27 of the General Clauses Act, 1897 the accused is deemed to be served. Even otherwise, the accused cannot take the aforesaid plea at this stage. [See C.C. Alavi Haji v Palapetty Muhammed and Anr. 2007 (3) RCR (Criminal) 185 (SC)].
14. The defence of the accused has been that he had made the payment of the entire loan amount. However, the accused has not produced any document of the money given to the complainant or to Sh. Kallu. Considering that the loan agreement was executed between the complainant and the accused in writing, this Court finds it to be highly improbable that the accused would keep giving money to repay the loan in cash to Sh. Kallu without taking any documentary receipt. Even otherwise, the accused has failed to show that the said Sh. Kallu was authorised by the complainant to receive money on its behalf. Though the complainant witness has deposed during cross examination that the accused had approached through City Motors, the owner of which was Sh. Sanjay @ Kallu, the CW1 has specifically deposed that the complainant has not hired any person for recovering the loan amount by going into the accused's premises. Therefore, the accused has failed to raise any probable defence to rebut the presumption raised U/s. 139 of the NI Act. The case laws relied on behalf of the accused turn on their own facts.
15.Therefore, the complainant has been able to prove that the cheque no. 509895 Ex. CW1/2 for Rs.94925/ was issued by the accused in discharge of legally recoverable debt or liability. The complainant has been able to prove its case. The accused is convicted U/s. 138 of the NI Act in respect of the cheque Ex. CW1/2. He shall be heard on the point of sentence on 28.01.2014 at 02.00 p.m. CC No.829/11 BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 6 of 7 The judgment be uploaded to www.delhidistrictcourts.nic.in.
Announced in the Open Court (Apoorv Sarvaria)
on 13th January, 2014 Civil JudgeI/MM, New Delhi District
New Delhi
CC No.829/11
BRM Lease & Credit Ltd v. Manoj Kumar Sharma Page 7 of 7