Delhi District Court
Vandana Haldhar vs Anugrah Sewa Bhartiya Welfare Society & ... on 28 January, 2019
IN THE COURT OF SHRI PUNEET NAGPAL, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
New CC No.:4991056/16
OLD CC NO.7953/15
Under Section 138 of N.I. Act
In the matter of:
VANDANA HALDHAR
w/o Shri Varunesh Diwedi
r/o Plot no.69A room no.4
Jindal Colony,
Smalkha Extension,
Kapeshera,
Delhi.
... Complainant
Versus
1. ANUGRAH SEWA BHARTIYA WELFARE SOCIETY
R/o House no.309, Street no.3 (Church)
Near Khandelwal Store, Rao Chaturbhuj Marg,
Kapeshera,
New Delhi 37.
2. Ajay Masih (Authorized Signatory)
Anugrah Sewa Bhartiya Welfare Society
Smt. Amrit Kaur,
R/o House no.309, Street no.3 (Church)
Near Khandelwal Store,
Rao Chaturbhuj Marg,
Kapeshera,
New Delhi -37.
3. Smt. Amrit Kaur (Authorized Signatory)
Anugrah Sewa Bhartiya Welfare Society
Smt. Amrit Kaur,
R/o House no.309, Street no.3 (Church)
Near Khandelwal Store,
New CC No.:4991056/16
OLD CC NO. 7953/15
VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors.
Rao Chaturbhuj Marg,
Kapeshera,
New Delhi -37.
... Accused persons
Date of Institution : 21.06.2014
Date on which judgment was reserved : 07.12.2018
Date of Judgment : 28.01.2019
JUDGMENT
1. Shorn off unnecessary details, the case of the complainant as narrated in the complaint is that the accused persons are known to the complainant and therefore, on 05/06.03.2014, accused no.3 had approached the complainant and requested for a short term help of Rs.1 lac for a period of two weeks. Acceding to the request of the accused, the complainant withdrew a sum of Rs.76,000/- from her bank account and after taking sum of Rs.24,000/- from her brother, the complainant advanced sum of Rs.1 lac in cash to the accused. In order to discharge their legal liability to repay the loan amount of Rs.1 lac, the accused issued a cheque bearing no.605959 dated 22.04.2014 for a sum of Rs.1 lac drawn on Punjab National Bank, Udyog Vihar, Phase I, Gurgaon, Haryana Ex.CW1/1 (hereinafter called as cheque in question) to the complainant. At the time of issuance of the cheque in question, the accused had assured the complainant that the cheque shall be honoured at the time of its presentation. Accordingly, as per the instructions of the accused, the complainant presented the cheque in question for encashment in April 2014 which to the New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. despair of the complainant, got dishonoured on presentation with the remarks ''Funds Insufficient'' vide cheque return memo dated 23.04.2014 (Ex.CW1/2). Thereafter, the complainant immediately tried to contact the accused. However, the accused did not pay any heed to the request of the complainant and failed to make payment within the stipulated period. This constrained the complainant to send a legal notice dated 08.05.2014 (Ex.CW1/3) to the accused. The said legal notice was duly served on the accused, the same went unheeded and this led to the filing of the present complaint.
2. Cognizance of the offence under Section 138 NI Act was taken against the accused and summons were issued. The accused entered appearance. Notice under Section 251 CrPC was framed against the accused and the susbstance of the accusations were explained to the accused to which they pleaded not guilty and claimed trial. In the application under section 145(2) NI Act, the accused claimed that the cheque in question was not issued in discharge of any legal liability, but the same was infact misplaced by accused no.2. Keeping in view the defence disclosed by the accused, the accused persons were allowed to cross examine the complainant.
EVIDENCE OF THE COMPLAINANT
3. In Post Summoning Evidence, the complainant chose to examine herself as sole complainant's witness and appeared as CW1 and adopted her Pre-Summoning Evidence tendered by New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. way of affidavit Ex.CW1/A.
4. In her cross examination, the complainant deposed that she had given the loan amount to Amrit Kaur (accused no.3) in the month of March 2014 and the same was advanced to the accused persons in the presence of son and daughter of the accused Amrit Kaur. The complainant admitted that no written document / agreement was executed between the parties in respect of the loan transaction. It was deposed by the complainant that the monthly savings of her family are Rs.10,000/- to Rs.12,000/-. The complainant admitted in her cross-examination that the cheque in question was not signed by the accused no.2 (namely Ajay) on behalf of the accused no.1. The complainant categorically deposed that the particulars on the cheque in question were filled by accused no.3 namely Amrit Kaur. The complainant reiterated in her cross-examination that the loan amount of Rs.1 lac was arranged by her after withdrawing sum of Rs.76,000/- from her fixed deposit and after taking sum of Rs.24,000/- from her brother.
DEFENCE OF THE ACCUSED
5. The version of facts as are discernible from the application of the accused filed under section 145(2) NI Act, and from the cross-examination of the complainant, during the statement of accused under section 313 CrPC is that the accused no.1 had not issued any cheque to the complainant as the same is a lost cheque. It is the version of accused no.2 that accused New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. no.1 has not received any loan from the complainant. The complainant used to visit a church by name of Jesus Prayer House, Kapeshera and therefore, the complainant might have stolen the cheque in question. It was also disclosed by accused no.2 that during his statement under section 313 CrPC that he had helped the complainant in purchase of one sound system and that he had got the same financed as the complainant was not having any ID Proof and that he had paid all the installments in respect of the sound system.
6. The version of the accused no.3 during Statement of Accused under section 313 CrPC was that she had misplaced some blank signed cheques (including the cheque in question) which were kept by her at her residence. It was the version of the accused no.3, that his son (accused no.2) had purchased a music system from some showroom. Her son had made entire payment in respect of said music system and there was some dispute regarding the payment and therefore, the present complaint had been filed against accused no.2 and 3. During the examination of the accused under section 313 CrPC, all accused submitted that they wished to lead defence evidence and want to examine one Bimla and Bimal as defence witnesses. However, for the reasons best known to the accused, the accused chose not to lead any defence evidence and closed their defence evidence without examining any witness in their support.
7. The factual position being thus, now let us quickly run through the legal benchmark which is to be satisfied in order New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. to constitute an offence u/s 138 NI Act-:
(i) that the person must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) that a cheque should have been issued for discharge, in whole or in part, or any debt or other liability.
(iii) that the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier.
(iv) that cheque is returned by the bank unpaid 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.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
(vi) the drawer of the said 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.
8 Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied, that a person who had drawn the cheque can be deemed to have committed an offence under section 138 of NI Act.
9. In the present case, the accused have admitted that they have received the legal demand notice sent by the complainant, therefore, the only issue which arises for consideration is whether the accused no.2 and 3 had issued the cheque in question on behalf of the accused no.1 in order to discharge the legal enforceable liability towards the complainant.
New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. EXISTENCE OF LEGALLY ENFORCEABLE DEBT OR LIABILITY.
10 Let us briefly recapitulate that the accused no.3 has admitted that the cheque in question bears her signatures on the cheque in question and that she is an authorized signatory on behalf of the accused no.1 and also the same has been drawn on a bank account maintained by accused no.1. However, it is the case of the accused no.2 that the cheque in question is a lost cheque and the same was never issued to the complainant. At the same time, the accused no.2 has also admitted that he is also an authorized signatory on behalf of the accused no.1 and that the cheque in question has been drawn on a bank account maintained by accused no.1. Though, accused no.2 has denied his signatures on the cheque in question issued on behalf of the accused no.1, however, not even an iota of evidence, much less cogent, has been led by accused no.2 to establish that the cheque in question does not bear his signatures. At the same time, it is pertinent to mention that the cheque in question has been dishonoured on the ground of ''Funds Insufficient'' and not on grounds of ''Signatures differs''. Therefore, once the accused admits his signatures on the cheque or it is proved that the cheque in question bears the signature of the accused and the cheque in question is drawn on a bank account maintained by the accused, a factual basis is established, to invoke the presumption of cheque having been issued in discharge of a legally sustainable liability and drawn for a good consideration arises by virtue of Section 118 (a) read with Section 139 of NI Act.
New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. 11 It is an established proposition of law that once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under 139 NI Act has to be raised in favour of the complainant. It is a mandatory presumption though the accused is entitled to rebut the said presumption. In a catena of judgments, it has been laid down by the Hon'ble Apex court that such presumption in favour of the complainant cannot be rebutted by a mere plausible explanation but more than a plausible explanation by way of rebuttal evidence.
12. Let us analyze, whether the accused have succeeded in rebutting the presumption as contemplated under section 139 read with 118 (a) of NI Act.
13. Coming to the merits of the case, the defence of the accused which has been disclosed by them is that the cheque in question is a lost cheque / misplaced cheque and the same was not issued to the complainant in discharge of any legally enforceable debt or liability.
14 At the stage of final arguments, Ld. Counsel for the complainant has submitted that the accused has failed to lead any affirmative evidence to rebut the presumptions under section 139 read with Section 118(a) of the NI Act, carved out in favour of the complainant. At the same time, it has been argued on behalf of the complainant that the accused no.2 and accused no.3 have taken different defence pleas at the stage of recording statement New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. of the accused under section 313 CrPC and this in itself is indicative of the fact that the accused persons have no probable defence in their favour.
15. At the outset, it has been argued on behalf of the accused that the testimony of the complainant is full of inconsistencies and therefore, the same does not inspire confidence. Counsel for the accused has argued that the sole testimony of the complainant is not of sterling and unimpeachable quality and therefore, the same cannot form the basis of conviction of the accused. Ld. Counsel for the accused has taken me through the legal demand notice sent by the complainant and her testimony and has argued that the version of the facts stated by the accused in the legal demand notice sent to the accused and the version of facts deposed by the complainant in her testimony are contradictory and therefore, the testimony of the complainant deserves to be rejected at the threshold.
16. Ld. Counsel for the accused has submitted that the complainant had averred in her legal demand notice that the accused no.2 Ajay Masih had approached the complainant and had requested for a loan, however, in her testimony as CW1, during cross-examination, the complainant testified that it was accused no.3 Amrit Kaur, who had approached her and had requested for loan. At the same time, Ld. Counsel for the accused has also argued that the complainant has herself admitted in her cross-examination that the accused no.2 Ajay Masih had not New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. signed on the cheque and therefore, accused no.2 deserves to be acquitted on this ground alone.
17. It is a settled law that while appreciating the evidence of a witness, the approach has to be whether the evidence of the witness read as a whole inspires confidence. Mere fact that there are some deficiencies, infirmities in the testimony of the witness, does not in each case render the evidence of such witness unworthy of belief. Minor discrepancies on trivial matters which do not touch the core of the case, have to be discarded. Hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to a technical error without going to the root of the matter will not ordinarily result in rejection of the evidence as a whole. Experience has shown that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The defence in every case cannot take advantage of the incongruities in the evidence of the witness. In the light of the above stated law laid down by Higher Courts, the above stated argument advanced on behalf of the accused appears to be specious. The gist of the submission of advanced on behalf of the accused is that the accused has implored for drawing inferences from the testimony of witness / CW1 by taking a phrase / sentence out of the testimony in isolation. The same is not acceptable as the testimony of the witness has to be read holistically and the complainant has categorically deposed in her cross-examination that she is not in a position to identify the person who have New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. appended the signatures on the cheque in question. From the testimony of the complainant, I find no reason to disbelieve her version. There might be some inconsistencies in her evidence, however, the same are minor and trivial in nature. The same cannot erase her credibility.
18 At the same time, the defence of the accused that the cheque in question is a stolen / lost cheque is liable to be rejected at the threshold as except bald assertions of the accused persons in their application under section 145(2) NI Act and during the Statement of the Accused under section 313 CrPC, not even an iota of evidence has been brought on record by either accused no.2 and accused no.3 to support their defence. It is a settled law that the statement of accused under section 281 CrPC or under section 313 CrPC is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under section 281 CrPC or under section 313 CrPC, cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that the explanation given by the accused, is truthful. In the present case, the accused at the stage of filing application under section 145(2) NI Act, stated that the cheque in question has been misused by the complainant. If the accused persons wanted to prove this, they were supposed to appear in the witness box and testify and get themselves subjected to cross-examination. Despite opportunity, the accused no.2 and 3, New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. failed to appear as defence witness. At the same time, the fact that the accused persons have not lodged any NCR / missing report in respect of the cheque in question with any authority and also that no 'Stop Payment' instructions were issued by them prior to the date of dishonour of the cheque in question, belies the claim of the accused that the cheque in question is a stolen / lost cheque. It is pertinent to mention that the accused had placed on record a letter dated 13.05.2014 issued by Punjab National Bank, Gurgaon, in favour of the President, Anugrah Sewa Bhartiya Welfare Society alongwith the application under section 145(2)NI Act. Perusal of the same shows that the accused had intimated its banker i.e. Punjab National Bank regarding the fact of misplacement of the cheque bearing no.605959 i.e. cheque in question on 13.05.2014 itself. Thus, the information regarding the fact of misplacement of cheque was given / filed by the accused with its banker after the date of dishonour of the cheque in question. Therefore, the information was given by the accused to its banker at a much belated stage and that too after the dishonour of the cheque in question and thus the same does not advance the case of the accused or help the accused in establishing the defence taken by them.
19. Thus, the defence of the accused that the cheque in question was stolen by the complainant and was not handed over by the accused has to be rejected as the accused no.2 and 3 did not appear in the witness box to dispel the presumption carved out in favour of the complainant or to prove their assertions of the cheque in question being a lost / stolen cheque. Mere fact New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. that the suggestions to this effect were put to the complainant's witness or mere explanation given in the statement of accused under section 313 CrPC, that the cheque in question was a stolen / lost cheque, does not amount to proof.
20. It is pertinent to mention that during their examination under section 313 CrPC, the accused had submitted that they wish to examine one Brother Raj, Bimla and Vimal as defence witnesses, however, for the reasons best known to them, no effort was made to summon the above stated proposed defence witnesses and get them examined before the court. On 17.09.2018, the matter was fixed for leading defence evidence. However, on the said day, all the accused made statements before the court that they do not wish to lead any defence evidence and consequently the defence evidence was closed vide order dated 17.09.2018.
21. At the stage of final arguments, it was argued on behalf of the accused that the complainant had not sent the legal notice dated 08.05.2014, to the accused no.3 (Amrit Kaur), therefore, the same would inexorably result in acquittal of the accused no.3 as the complaint itself is liable to dismissed against accused no.3 on this ground alone. However, this argument of ld. Counsel for the accused is contrary to the record as the accused no.3 had admitted at the stage of recording of her Statement under section 313 CrPC, that she had received the legal demand notice sent by the complainant. Mere fact that the legal demand notice dated 08.05.2014 was received by the accused no.3 in the New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. capacity of being the authorized signatory of accused no.1 and not in personal capacity is of no significance and therefore, the omission on part of the complainant of sending legal demand notice to accused no.3 in personal capacity is a mere irregularity and the same does not go to the root of the matter and cannot solely made basis for acquittal of accused no.3. 22 Furthermore, it has already been proved on record that the legal notice was validly issued to the accused and the accused have themselves admitted that they had received the same. The non reply of the legal notice, is also circumstances that is to be marshalled against the accused.
23. Therefore, in my opinion, all the accused have not succeeded in rebutting the presumption of legal liability even on the scale of preponderance of probabilities. The defence of the accused cannot be termed as a plausible defence.
24. The sheer lack of even an iota of material on record, to this effect, leads to the irresistible conclusion that the defence of the accused is sham.
25. Cumulatively seen, there is no evidence, much less cogent or credible, on record to prove the contention of the accused that the cheque in question is stolen / lost cheque and the same has been misused by the complainant.
26. Therefore, all factors, cumulatively seen, go on to show that all the accused have miserably failed to probablize the defence set up by them with respect to the cheque amounting to Rs.1 lac (Ex.CW1/1). The presumption of legal liability under Section 118 (a) read with Section 139 of the NI Act has gone unrebutted. The complainant has successfully proved the basic New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors. ingredients of the offence under Section 138 of the NI Act.
27. Resultantly, the accused Anugrah Sewa Bhartiya Welfare Society, the drawer of the cheque stands convicted for the offence under Section 138 of the NI Act. At the same time, the accused namely Ajay Masih and accused Amrit Kaur, both authorized signatory of accused no.1 also stands convicted under section 138 read with Section 141 NI Act.
28. Let the convicts be heard on quantum of sentence.
29. Let a digitally signed copy of the Judgment be supplied to the accused persons, free of cost and a copy of the Judgment be placed on record.
Decided on 28.01.2019 Announced in open court.
(PUNEET NAGPAL) MM (NI Act)-01/SW/DWK New Delhi New CC No.:4991056/16 OLD CC NO. 7953/15 VANDANA HALDHAR vs ANUGRAH SEWA BHARTIYA WELFARE SOCIETY & Ors.