Delhi District Court
Gurmail Singh vs Simran Bhalla on 25 July, 2013
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IN THE COURT OF SH SUNIL BENIWAL : METROPOLITAN
MAGISTRATE - 03 : SOUTH : SAKET COURT : NEW DELHI
Gurmail Singh vs Simran Bhalla
CC No 142/1
U/s 138 Negotiable Instruments Act
Unique Identification No. : 02406R0060112012
JUDGMENT
(1) Serial number of the case : 142/1
(2) Name of the complainant : Gurmail Singh
s/o Late Darshan Singh
(3) Name of the accused, : 1. Simran Bhalla
parentage & residential address w/o Gagan Bhalla
2. Gagan Bhalla
s/o K L Bhalla
Both r/o F-1, Hans
Apartment, East Arjun
Nagar, Shahdara,
Delhi-110032
(4) Offence complained of or proved : 138 Negotiable
Instruments Act
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : ACQUITTED
(7) Date of Institution : 17/03/2012
(8) Date on which reserved for judgment : 25/07/2013
(9) Date of Judgment : 25/07/2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION Gurmail Singh vs Simran Bhalla Page 1 of 11 2 The material facts as carved out from the complaint are that the accused had taken the well furnished property of the complainant at F-1, Hans Apartment, East Arjun Nagar, Shahdara, Delhi-110032 on rent @ Rs. 7600/- per month on 13/09/2011. Accused issued a cheque bearing no. 020057 dated 27/01/2012 drawn on Axis Bank Ltd for Rs.50,000/- in favour of the complainant. The complainant presented the aforesaid cheque for encashment through his banker i.e. Syndicate bank. However, the same was returned dishonoured twice by the banker of accused with the remarks "Drawers Signature Differ" vide memo dated 30/01/2012. Thereafter, the complainant made a demand for payment of the said amount of money by giving a Demand Notice dated 02/02/2012 to accused. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within stipulated time. Thereafter, the complainant has filed this complaint U/s 138 of Negotiable Instruments Act, 1881 (hereinafter "the Act") against the accused.
2. On 17.03.2012 after being satisfied that the complainant has a prima facie case against the accused, the court summoned accused for offence U/s 138 of the Act.
3. Accused appeared pursuant to the process issued by the court and on 01/06/2013, the particulars of the offence were read over and explained to the accused, to which accused pleaded not guilty and claimed trial and also disclosed its defence.
Gurmail Singh vs Simran Bhalla Page 2 of 11 3
4. In order to substantiate his case, the complainant examined himself as the only complainant witness by way of evidence affidavit.
5. All the circumstances appearing in the evidence against the accused were put to the accused in order to enable accused to offer explanation. In statement U/s 313 CrPC recorded on 27/06/2013, accused stated that the cheque was issued for security purpose and it was filled by the complainant while they had vacated the premises in the month of August 2011. Accused further stated that the complainant misused the cheque and did not return the same even after repeated asking by them.
6. Accused did not lead defence evidence.
7. Arguments have been advanced by both the parties at length. It has been argued by Ld. counsel for the complainant that from evidence, he has proved that the cheque in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment.
8. Per contra, for knocking down the edifice of complainant's case, it has been argued by Ld. counsel for defence that no case is made out against accused as they are innocent and complainant has misused the cheque in question.
Gurmail Singh vs Simran Bhalla Page 3 of 11 4
9. I have heard both the parties at length and perused the record and the written submissions filed on behalf of both the parties. Before entering into factual matrix of the present case, I deem it fit to discuss certain statutory provisions of Negotiable Instruments Act. Section 118 (A) of N I Act provides for presumptions regarding consideration for a Negotiable Instrument. It reads as under :
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
10. Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as under :
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability".
11. Apex court in Rangappa vs Mohan AIR 2010 SC 1898 while overruling the judgment titled Krishna Janardhan Bhatt vs Dattatraya G Hegde AIR 2008 SC 1325 observed in para 14 that :
"the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt Gurmail Singh vs Simran Bhalla Page 4 of 11 5 or liability. To that extent, the impugned observation in Krishna Janardhan Bhatt (supra) cannot be correct............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 debt or liability can be contested".
12. Therefore, in view of the statutory provisions and Apex Court's judgments, there is a presumption in favour of holder of the cheque that he has received the same for discharge in whole or in part of any legally enforceable debt or other liability. It is a well settled principle of law that the presumption available U/s 139 N I Act can be rebutted by the accused by adducing evidence. Therefore, the burden of proof is on the accused to rebutt the statutory presumption. The accused can prove the non existence of consideration by raising a probable defence and if he proves the same, then only the onus would shift upon complainant, who has to prove it as a matter of fact and his failure to prove would dis-entitle him to grant the relief.
13. Apex Court in Krishna Janardhan Bhatt vs Dattatraya G Hegde AIR 2008 Supreme Court 1325 has held as follows :
"23. ...............Standard of proof on the part of an accused and that of the prosecution in a criminal case is different".
14. I shall now appreciate the testimony of complainant witness to see whether the accused has discharged the burden of mandatory presumption or whether the guilt of accused has been proved beyond Gurmail Singh vs Simran Bhalla Page 5 of 11 6 reasonable doubt by the complainant in the present case. It has been argued by Ld. counsel for the complainant that from evidence, he has proved that the cheque in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment. Counsel for complainant has further submitted that the complainant has been able to prove his case to the hilt. It has been argued that accused has failed to discharge the burden cast upon him to rebut the presumption. CW-1 is complainant himself who has reiterated the averments of complaint in his affidavit of evidence.
15. For the sake of giving this present judgment, the cross examination of CW-1 is reproduced as under :
"I cannot say for sure as to when the accused became tenants in my property. Accused vacated the tenanted premises about one to one and a half years back.
Q. You have filed two cases against the accused which are pending in the court and th other case is also listed for today bearing case no. 143/1. The cheque in the case 143/1 bears the date of 13/09/2011. So according to you, did the accused vacate the tenanted premises before or after this date of 13/09/2011?
A. I do not remember.
No, I had not read and understood the contents of my evidence affidavit ExCW1/N before signing the same. No, I was not aware about the contents of the complaint at the time of signing and filing of the same. I do not know whether in my complaint or affidavit, I have mentioned as to for what purpose cheque ExCW1/A was issued by the accused.Gurmail Singh vs Simran Bhalla Page 6 of 11 7
I do not remember if the accused vacated the tenanted premises in the month of August 2011. Yes, another tenant had come after the present accused had vacated the tenanted premises. I do not remember on which date or in which month the other tenant took over the tenanted premises. Yes, I execute agreements with my tenants. It is wrong to suggest that accused did not have legal liability to pay the cheque amount to me and that is why in my above mentioned deposition I have deposed that I do not know for what liability the accused had issued the disputed cheque ExCW1/A. Q. When was the disputed cheque ExCW1/A issued by the accused to you?
A. I do not remember.
I do not remember whether the disputed cheque ExCW1/A was given to me before or after vacating the tenanted premises. Accused owed me the rent amount as well as the security charges of the society. Accused had stopped paying the rent 8-10 months prior to vacating the tenanted premises. No, I did not issue any legal notice to the accused asking the accused to pay the arrears of rent. Vol : But I continuously visited the accused requesting them to clear the arrears of rent.
I do not remember whether I have the original rent agreement with me or not. No, I have not filed the said rent agreement along with my complaint. Yes, I get the police verification conducted before keeping a tenant. No, I do not know the reason for dishonour of cheque ExCW1/A. Yes, it is correct that the cheque ExCW1/A was dishonoured because of the reason "signature differ". Accused herself had filled up the cheque ExCW1/A and tendered it to me. Yes, the cheque ExCW1/A was given in lieu of another cheque which was previously issued and dishonoured by the accused. Yes, it is correct that I have filed another parallel case for dishonour of that previous cheque also. It is wrong to suggest that the cheque ExCW1/A was taken by me from the accused at the time of police verification and inducting the tenant and that I have misused the same after filling it myself and also forging the signatures of the accused. It is wrong to suggest that I did not return back the Gurmail Singh vs Simran Bhalla Page 7 of 11 8 security amount of accused taken at the time of inducting them as tenants and rather I implicated them in the present false case. ".
16. CW-1 is complainant himself who has reiterated the averments of complaint in his affidavit of evidence. Complainant was cross examined by the Ld. Counsel for accused. During cross examination, nothing reliable came out to prove the case of the complainant. But during cross examination, complainant deposed that he was not aware of the contents of the complaint and his evidence affidavit and signed them without reading. In view of the deposition given by the complainant and material contradictions in the complaint as well as evidence affidavit, the testimony of the complainant is not reliable. Although there are presumptions in favour of the complainant in a case under Section 138 N I Act but the onus is upon the complainant to prove the facts alleged and raised by him. The cross examination of complainant is not in consonance with the evidence affidavit. On the whole, after reading cross examination of complainant along with material available on record, the court is of the opinion that his testimony is not reliable and trustworthy and the version given by the accused appears to be more genuine. Complainant has submitted that he has not read the contents of the affidavit and signed the same without knowing the contents of the same. Since the complainant has not read the contents of the affidavit, his evidence affidavit cannot be relied upon. During the course of evidence and trial, complainant has not been able to establish as to why accused Gagan Bhalla is liable to be convicted for the offence U/s 138 N I Act merely on the bald allegation of the complainant against the accused that the accused had a Gurmail Singh vs Simran Bhalla Page 8 of 11 9 joint account with the complainant from which the cheque in question was issued.
17. In a case before the Andhra Pradesh High Court titled as Cheruku Enterprises versus State bank of Hyderabad it was held "the accused could not have been prosecuted as he was not the drawer of the cheque but was a payee. The drawer of the cheque, that is, dealer who issued the cheque should have been impleaded as an accused and not the witness. Banks right was only to proceed against the drawer of cheque and it had no right to proceed against third-party, so after finding that accused/petitioner not being drawer of the cheque proceedings were quashed."
18. In the case of Suresh Kallappa Makavi versus Madan Bindurao cited as 2009 criminal Law Journal 224, it was held, "in case of a cheque signed by two persons having joint account, the complainant has an option to either proceed against both signatories or against one of the signatory of the cheque. He cannot be compelled to proceed against both". This is a case of Karnataka High Court.After considering the facts and circumstances of the case, and in light of the evidence brought on record, I am of the considered view that accused has been able to successfully rebutt the statutory presumption because the defence of accused during the whole trial has remained consistent and looks probable. Further, there are material contradictions in the testimony of Gurmail Singh vs Simran Bhalla Page 9 of 11 10 complainant. Counsel for accused has submitted that accused has proved her innocence on the scale of preponderance of probabilities.
19. Apex Court in Krishna Janardhan Bhatt's case (supra) has also held at para 25 that :
"25. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities".
Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
20. Therefore, what has been upheld by Apex Court in Krishna Janardhan Bhatt's case (supra) that accused can prove his defence by "preponderance of probabilities" whereas prosecution has to prove the guilt of accused beyond all reasonable doubts. It was also held by Apex Court in the said case that :
"26. A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In the case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration".
21. In totality of the facts and circumstances of the case, from the Gurmail Singh vs Simran Bhalla Page 10 of 11 11 evidence brought on record and after going through the relevant paras of the judgments relied upon by both parties which have been reproduced herein, I am of the considered view that accused has successfully proved their defence on the scale of preponderance of probabilities and there are reasonable doubts in the story of complainant. The complainant has failed to prove the guilt of accused beyond all reasonable doubts and accused has successfully rebutted the presumption drawn under Section 139 as well as Section 118 of Negotiable Instruments Act on the scale of preponderance of probabilities.
22. In view of above discussion, accused Simram Bhalla and Gagan Bhalla stand acquitted of offence U/s 138 N I Act. Bail bond & surety bond in terms of Section 437(A) CrPC have been furnished and accepted. Announced in the open court on 25/07/2013 (SUNIL BENIWAL) Metropolitan Magistrate -03/N I Act/South Saket Court/New Delhi Certified that this judgment contains 11 pages and each page bears my signature.
(SUNIL BENIWAL) Metropolitan Magistrate -03/N I Act/South Saket Court/New Delhi Gurmail Singh vs Simran Bhalla Page 11 of 11