Delhi District Court
Cc No.7014/10 Md. Tajuddin vs . Shoukat Ali Page No. 1 Of Pages 15 on 19 December, 2012
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 1 of Pages 15
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 7014/10
Unique ID No. 02402R0237572009
PS. Preet Vihar
Md. Tajuddin,
S/o Late Sh. Abdul Gaffur
Proprietor of M/s Perfect Engineers,
Office at 110B, 1st Floor,
Near Badi Masjid,
Khureji Khas, Delhi51 ......... Complainant.
Versus
Sh. Shaukat Ali,
S/o Md. Ibrahim,
R/o H37, Arshi Apartments,
Abul Fazal Enclave,
Okhla, New Delhi25 ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 27.07.2009
Plea of Accused : Not guilty
Complaint filed on : 18.08.2009
Final Arguments heard & Concluded on : 01.12.2012
Date of decision of the case : 19.12.2012
Final order : Acquittal
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Md. Tajuddin, against the accused Shoukat Ali in respect of dishonor of cheque bearing no. 68460.
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 2 of Pages 15
2. The facts in brief necessary for the disposal of the present case are that, complainant is running a business of defective AC, Fridge, TV, CD, DVD, OVEN etc and the accused had approached the complainant for purchasing the defective DVDs and purchased 700 defective DVDs from the complainant vide bill no. 204 dated 05.06.2009 amounting to Rs.4,70,050/. To discharge the partial liability towards the complainant, the accused issued a cheque bearing no. 068460 dated 12.06.2009 for the sum of Rs. 3,50,000/ drawn on Barclays Bank, PLC Ground, First Floor, Eros Corporate Tower, Nehru Place, Delhi19 to the complainant but on presentation the said cheque was returned back dishonored with the remark "PAYMENT STOPPED BY THE DRAWER" vide dishonour memo dated 13.06.2009. Thereafter a legal notice was sent to the accused on 11.07.2009 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the complainant led the pre summoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 19.08.2009 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 11.01.2011 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited bill no. 204 as Ex. CW1/1, original cheque bearing No. 068460 as Ex. CW1/2, the cheque returning memo is Ex. CW1/3, the legal notice of demand dated 11.07.2009 as exhibited as Ex. CW1/4, The original receipts of registered post are Ex. CW1/5 & CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 3 of Pages 15 Ex. CW1/6 and U.P.C. is Ex. CW1/7. Thereafter, the complainant evidence was closed at request.
5. After that on 03.12.2011 the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused. In his statement accused denied the case of the complainant and stated that he gave two blank signed cheques to the complainant as security and had also made a payment of Rs.3,95,000/ by way of DD in the name of Fedders Lloyds company and against that DD complainant supplied him 700 DVDs which were not as per the specification. Thereafter the case was fixed for Defence evidence. The accused examined himself as DW1. He also exhibited a letter written by him to the complainant for return of his security cheque as Ex. DW1/1 and its UPC slip as Ex.DW1/2. Reply to the legal notice of the complainant as Ex. DW1/3 and its UPC slip as Ex. DW1/4. Sh. Zakir examined as DW2. Sh. Sandeep Sharma, Deputy Manager (Accounts) from Fedders Lloyds Corporation Ltd examined as DW3. He also exhibited computer generated print out of ledger statement of S.K. Enterprises as Ex. DW3/1, copy of 'C' form issued by S.K. Enterprises to Lloyds Corporation Ltd as Ex. DW3/2, copy of bankers cheque as Ex. DW3/3 and copy of application made by accused for preparation of banker cheque as Ex. DW3/4. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
6. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
7. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows: CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 4 of Pages 15
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
8. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
WHETHER THE CHEQUE WAS ISSUED OR NOT:
9. CW1 has stated in his examine in chief that cheque in question was issued by the accused. In his statement under section 313 Cr.P.C, it was accepted by the accused that the cheque in question bears his signature, however it is stated by him that this cheque along with one more cheque was given in blank signed condition as security. The legal position in respect to the blank signed cheques is as under:
10. In Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 5 of Pages 15 name of payee there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date.
11. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well as the amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only. "
12. In Ravi Chopra v. State & another (2008 (2) LRC 118 del) it was held by the Hon'ble high court that "it is possible for drawer of a cheque to give a blank cheque signed by him to the payee and consent either implidely or expressly to the said cheque being filed by the payee at a subsequent point of time".
13. Similarly it was held by the Kerala High Court in lillykutty v. lawrence (2004 (1) JCC (NI) 14), that there is no rule in banking business that payee's name and the amount should be written by drawer himself. Further the burden is on the accused to establish that the date, amount and payee's name are written by somebody else without the knowledge and consent of the drawer. Further in Vijender Singh V. Eicher Motors Ltd. & Anr decided on 05.05.2011 it was held by High Court of Delhi that a person issuing a blank cheque is supposed to understand the consequences of doing so. He can not escape his liability only on the ground that blank cheques had been issued.
14. From the above stated cases it is clear that in a case where cheque is handed over without filling the name of the payee or other particulars, it is upon accused to prove by positive evidence that he/she did not give implied or express consent to the complainant to fill in the name of the payee and the other particulars. However in the present case no such cogent evidence have been adduced by the accused.
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 6 of Pages 15
15. In view of the aforesaid discussion and the evidence on record it stands proved that the cheque in question was issued by the accused.
WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
16. It is submitted by the CW1 that he was / is running a business of defective AC, Fridge, TV, CD, DVD, OVEN etc and the accused had approached the complainant for purchasing the defective DVDs and purchased 700 defective DVDs from the complainant vide bill no. 204 dated 05.06.2009 amounting to Rs. 4,70,050/. Towards discharge the partial liability towards the complainant, the accused issued a cheque bearing no. 068460 dated 12.06.2009 for the sum of Rs. 3,50,000/ drawn on Barclays Bank, PLC Ground, First Floor, Eros Corporate Tower, Nehru Place, Delhi19 to the complainant which is Ex. CW1/2.
17. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
18. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
19. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act.
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 7 of Pages 15
20. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
21. Therefore after the establishment of the fact that the cheque was issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence and not by mere plea taken in the statement of the accused recorded under section 313 r.w section 281 of Cr.P.C. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in Birender Singh V. state (NCT of Delhi) 2008(1)JCC (NI) 15).
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 8 of Pages 15
22. In the case in hand following circumstances if taken together can very well rebut the presumption of law as arisen in favour of the complainant:
i) In the present matter the case of the complainant is that he supplied 700 defective DVD players to the accused @ Rs.671.50/ each DVD. During his cross examination it is stated by the complainant that he had supplied the DVD players manufactured by Fedders Lloyds Corporation Ltd having its office at Okhla. Two DVD players were also shown to the complainant who identified them to be of the lot supplied to the accused. The same were exhibited as Ex. CW1/X1 & Ex. CW1/X2. DW3 Sh. Sandeep Sharma, Deputy Manager, Fedders Lloyds Corporation Ltd has also identified the two exhibited DVD players as the same were manufactured by Fedders Lloyds Corporation Ltd. Thus it is proved that the DVD players which were supplied by the complainant to the accused were manufactured by Fedders Lloyds Corporation Ltd.
It is also submitted by DW3 that they never supplied DVD players to the complainant or his firm namely Perfect Engineers.
ii) It is proved on record by the accused that he had made a payment of Rs.3,95,000/ by way of a DD dated 26.05.2009 to Fedders Lloyds Corporation Ltd which was got prepared by him from Barclays bank, Nehru Place branch from his own account. This fact is also proved by DW4 Mr. Vikas Kumar, Manager, Commercial operations, Barclays bank, Nehru Place branch. Receipt of this amount is also accepted on behalf of Fedders Lloyds Corporation Ltd by DW3. It is also explained by DW3 that the DD was received from a Banglore based firm namely S.K. Enterprises against supply of DVD players to the S.K. Enterprises against which a 'C' form was also issued (copy of C form is exhibited as Ex. DW3/2). From above stated discussion the defence of the accused that he had a contract of purchasing 1400 DVD players from the complainant and against which he had issued a DD of Rs.
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 9 of Pages 15 3,95,000/ at the request of the complainant in the name of Fedders Lloyds Corporation Ltd and had also issued two security cheques appears to be probable. As if the accused had direct dealing with Fedders Lloyds Corporation Ltd or had dealing with Fedders Lloyds Corporation Ltd through S.K. Enterprises then he had no need to purchase the DVD players from the complainant. Further the complainant himself in his cross examination admitted that he used to purchase goods from one company situated in Banglore. Thus this chain could be completed if we believe that the complainant was between the Banglore based firm S.K. Enterprises and the accused and therefore the DD got prepared by the accused was given by him to the complainant who further handedover the same to S.K. Enterprises and from there the same was given to the Fedders Lloyds Corporation Ltd.
iii) During his examination in chief the accused has also filed on record copy of a letter written to the complainant dated 07.06.2009 which is Ex. DW1/1 and its UPC slip bearing the postal stamp of 08.06.2009 is Ex. DW1/2 vide this letter accused had requested the complainant to return his security cheques bearing no. 068459 and 068460. Vide this letter it was also informed by the accused that he is going to request its bank to stop payment of those two cheques. It is admitted position that the cheque in question was dishonored due to payment stopped. Ld. Counsel for the complainant had submitted that this letter is a forged one and was got prepared after filling of the case. It is also submitted by him that even the UPC slip is forged one. However prima facie from the Ex. DW1/2 it appears that UPC slip is genuine and bear due stamp of New Friends Colony Post office. Further the complainant had not taken any steps to prove that this slip is forged. As far as UPC slip is concerned the same were written by the accused or on his behalf and were stamped by the postal officials as a proof of the fact that some letters was sent to the addressee and accused is the only CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 10 of Pages 15 person in whose possession the same should be kept in normal circumstances thus these UPC slips are admissible and reliable documents.
As far as the admissibility and reliability of the xerox copies of the letters sent by the accused to the complainant is concerned following legal principal has to be considered:
Section 65: Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in (Section 66) , such person does not produce it;
Section 66: Rules as to notice to produce: Secondary evidence of the contents of the documents referred to in (Section 65) , Cl. (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
(1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 11 of Pages 15 (3) (6) X X X In the present case the document of which secondary evidence have been given is in itself a letter/ notice sent to the opposite party i.e. the complainant, the date of this letter is corresponding with the dates of the UPC slips which make this letters more reliable as the latter is dated 07.06.2009 and UPC bears the date 08.06.2009. Further the secondary evidence produced is a xerox copy thus it is a prefect case in which the requirement to give notice under section 66 Evidence Act can be dispense with. Thus it stands proved that the letter dated 07.06.2009 was sent to the complainant. Which is in compliance to the safe guards discussed in V.S. Yadav v. Reena's case.
iv) The bill Ex. CW1/1 does not inspire confidence as the same is not signed by the accused despite the fact that the accused himself had came to take the delivery of DVD players and the person who signed the same have not been brought before the Court by the complainant as it was upon him to prove that the person who signed on the bill had received the same on behalf of the accused.
v) The accused has proved on record reply of the legal notice and its UPC slip which are Ex. DW1/3 & Ex. DW1/4 where by he duly replied the legal notice of the complainant.
vi) On the basis of above stated discussion even if we assume that the complainant had supplied 700 DVD players on 05.06.2009 to the accused @ Rs.671.50/ and total comes to be Rs.4,70,050/ then still he can not explain as to how the accused paid an amount of Rs.3,95,000/ vide DD dated 26.05.2009 to the same company from where the DVD players were procured by the complainant and supplied to the accused while it is the fact that the complainant had not directly purchased the DVD players from Fedders Lloyds Corporation Ltd (infact complainant has not shown through whom he got the DVD players manufactured by the Fedders Lloyds Corporation Ltd) thus it clearly shows that accused had made a CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 12 of Pages 15 payment of Rs.3,95,000/ in respect of the DVD players well in advance, thus he can not be held liable for payment of an amount of Rs.4,70,050/. It is further an admitted position that apart from 700 DVD players no other DVD players were supplied to the accused.
23. On the basis of above stated facts it can be held that the accused has been able to rebut the presumption of law as arisen in favour of the complainant as the accused has only to create a doubt in the version of the complainant, while as the complainant has to prove the guilt of the accused beyond reasonable doubt. The Ld. Defence counsel has heavily relied on a judgment of Hon'ble Supreme Court cited as Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 wherein it was held:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial....
....Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 13 of Pages 15 of the Act will not again come to the complainant's rescue.
24. Considering all these facts together it can be safely concluded that presumption of law as raised by Sec. 139 and Sec. 118 of the N.I. Act stood rebutted. Further now it was for the complainant to prove by positive evidence that the cheque in question was issued towards payment of legally recoverable debt or liability but no documentary or positive evidence have been adduced by the complainant to prove the same.
25. In view of the above discussion this court is of the opinion that the complainant has failed to prove that the cheque in question which is Ex. CW1/2 was issued and drawn in discharge of legal liability of the accused and for consideration. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY AND DISHONOR OF THE SAME DUE TO PAYMENT STOPPED:
26. Perusal of the record reveals that the cheque in question which is Ex. CW1/2 is dated 12.06.2009, was got dishonoured due to the reason payment stopped vide cheque returning memo which is Ex. CW1/3 dated 13.06.2009 which clearly shows that the cheque has been presented and dishonored within period of its validity i.e. within six months from the date of the cheque. The accused has not objected to or denied these facts. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED:
27. CW1 has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 11.07.2009 which is Ex. CW1/4 and it was sent to the accused on the same day (within 30 days of knowledge of dishonour of cheque) CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 14 of Pages 15 vide Registered Posts and UPC which are Ex. CW1/5, Ex. CW1/6 & Ex. CW1/7. The legal notice was sent to the accused at his address i.e. H37, Arshi Apartments, Abul Fazal Enclave, Okhla, New Delhi25.
28. The accused has stated in his plea of defence that he had not received the legal notice and during his statement recorded U/s 313 Cr. PC he again denied the receipt of legal notice, however in his examination in chief U/s 315 Cr. PC it is submitted by the accused that he had replied the legal notice of the complainant vide his reply which is exhibited as Ex. DW1/3 and its UPC slip is exhibited as Ex. DW1/4. Infact these documents were put to the complainant as well in his examination in Chief. It is further submitted by the accused that the legal notice sent by the complainant was received by his son and not received by him personally and that is why during his examination U/s 251 Cr. PC & U/s 313 Cr. PC he denied the receipt of legal notice. From these facts its proved that legal notice was duly served upon the accused which was also replied by him.
THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE:
29. CW1 has deposed in his examination in chief that despite service of legal notice of demand accused has failed to pay the cheque amount to the complainant. It is submitted by the accused that he had duly replied the legal notice and he did not make the payment as he was not liable to pay anything in respect of the cheque in question. Therefore this fact also stands proved.
30. In view of the aforesaid discussion, this court is of the considered opinion that the complainant has failed to prove his case against the accused beyond shadow of reasonable doubts. The CC No.7014/10 Md. TAJUDDIN Vs. SHOUKAT ALI page no. 15 of Pages 15 Complainant has failed to prove one of the most important ingredients of offence U/s 138 NI Act i.e whether the cheque in question which is Ex. CW1/2 was issued and drawn in discharge of legal liability of the accused and for consideration. Accordingly, accused Sh. Shaukat Ali, S/o Md. Ibrahim, R/o H37, Arshi Apartments, Abul Fazal Enclave, Okhla, New Delhi25 stands acquitted of the offence u/s 138 Negotiable Instruments Act.
Announced in the open court today i.e. 19.12.2012 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:19.12.2012 Containing 15 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:19.12.2012