Delhi District Court
Cc No. 5053/14 Ram Karan vs . Ashok Kumar Page No. 1/14 on 30 August, 2014
IN THE COURT OF SHRI RAVINDER SINGHII
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI
Case No. : 5053/14
Unique Case ID No. : 02405R0234102011
Sh. Ram Karn
S/o Late Sh. Mohan Lal
R/o RZ697, Gali No. 7,
Raj Nagar PartI, Palam Colony,
New Delhi110045. .................................................Complainant
Versus
Sh. Ashok Kumar
R/o R.Z.B.208/1,
Raj Nagar PartII,
Palam Colony,
New Delhi110045
Also at:
Traffic Police Head Quarter,
Traffic Police Lines,
Toda Pur, Near Inderpuri,
New Delhi ..................................................Accused
Date of Institution: 30.07.2011
Plea of the accused: Pleaded Not Guilty
Date of Reserving Judgment: 19/07/2014
Sentence or final Order: Convicted
Date of Judgment: 30/08/2014
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (hereinafter Said as NI Act) filed by the complainant Sh. Ram Karan against the accused Sh. Ashok Kumar.
CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 1/14PROLOGUE (COMPLAINANT'S VERSION)
2. The factual matrix necessary for disposal of the present case as per the allegations in the complaint are that the accused and the complainant are residing in the same locality and are known to each other for the many years. It is further submitted that the complainant is working as a bus conductor in DTC and the accused is a policeman in Delhi Police. It is further alleged that in the month of October, 2010 the accused along with his wife Geeta Rani approached the complainant and asked for financial assistance. It is further alleged that the accused requested for a sum of Rs. 10 lacs as friendly loan on the pretext that he has some financial difficulty. It is further alleged that the accused and his wife assured the complainant to repay the said loan within a reasonable time. It is further alleged that the complainant relied upon the promise of the accused and keeping in view the friendly relations with him the complainant arranged a sum of Rs. 7,90,000/ and gave the same to the accused on 18.10.2010 as a friendly loan. It is further alleged that the accused assured for repayment of the said loan within two months period. It is further alleged that after the expiration of two months i.e. 18.12.2010, the complainant visited the house of the accused and made demand for his money from the accused in presence of his wife. It is further alleged that in order to discharge his legal liability towards the loan amount the accused issued the signed cheque in question bearing no. 458603 dated 19.12.2010 for a sum of Rs. 7,90,000/ drawn on SBI, Palam Colony, New Delhi in favour of the complainant. It is further alleged that the accused requested the complainant not to deposit the said cheque for further two months and also assured the complainant that he would by that time arrange and deposit the required money in his bank account. It is further alleged that in the first week of February 2011, the accused along with his wife came to the complainant and tendered his apology that he still could not arrange the requisite money and further sought three months extension time for making CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 2/14 payment to the complainant. It is further alleged that the accused and his wife also assured and promised the complainant that he is a government employee and there is no reasons for him to abscond and shift his address. It is further alleged that the accused and his wife assured the complainant that they are seeking extension of time for payment for the last time and also assured the complainant to present the cheque in question in the mid of May, 2011. It is further alleged that on the basis of assurances of the accused the complainant presented the cheque in question for encashment with its banker, and the same was dishonored vide cheque returning memo dated 18.05.2011 with remarks "Funds Insufficient". It is further alleged that thereafter the complainant has given a legal notice of demand dated 15.06.2011 to the accused which was sent through registered post and speed post thereby calling upon the accused to make the payment of the cheque amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand as a result of which the complainant has filed the present complaint for prosecution of the accused U/s 138 of the NI Act.
COMPLAINANT'S EVIDENCE
3. The complainant Ram Karan got himself examined as CW1 and adopted his pre summoning evidence affidavit Ex. CW1/A. CW1 also relied upon documents Ex. CW1/1 to Ex. CW1/9. Ex. CW1/1 is the original cheque in question, Ex. CW1/2 is the cheque returning memo, Ex. CW1/3 is the legal notice of demand, Ex. CW1/4 (Colly.) are the registered post receipt, CW1/5 (Colly.) are the speed post receipt CW1/6 & CW1/7 are the returned registered post and speed post envelopes respectively, CW1/8 is the Internet tracking report and the complainant as CW1/9. CW1 was duly cross examined by Ld. Counsel for the accused. Thereafter, the complainant's evidence was closed at request.
CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 3/14STATEMENT OF ACCUSED U/S 313 OF THE CODE
4. Thereafter the statement of accused was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to the accused Ashok Kumar. The accused denied that he along with his wife has approached the complainant in the month of October, 2010 for the loan of Rs. 10 lacs. The accused further denied that he has taken loan of Rs. 7,90,000/ from the complainant on 18.10.2010. The accused further stated that the cheque in question does not bears his signature. The accused further stated that he has also not filled the contents/particulars in the cheque in question however, the accused admitted that the cheque in question is drawn on his account. Accused further stated that he is not aware about the dishonoring of the cheque in question. The accused further denied that he has received the legal demand notice. The accused further stated that the present complainant case is a false case and the complainant has deposed falsely against him. The accused also stated that he has taken a loan of Rs. 1,45,000/ from the complainant in the month of November, 2010 which he has already paid on 08.12.2010 from the loan taken on his salary. The accused further stated that the cheque in question was given by him to the complainant in the month of September 2010. The accused also stated that he has given the cheque in question in the month of October, 2010. The accused also stated that entirely blank cheuqe was given by him to the complainant and the complainant also assured him to return the same on repayment of the loan. The accused further stated that the complainant has failed to return the cheque in question and he do not owe any liability towards the complainant. Altogether the accused denied all his liability towards the complainant. Thereafter the case was fixed for defence evidence.
CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 4/14DEFENCE EVIDENCE.
5. Accused examined three witnesses in his defence i.e. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony, DW2 Dr. Amulya Bharat and DW3 handwriting expert Deepak Jain. Opportunity was given to Ld. Counsel for the complainant for cross examining the defence witnesses. Thereafter defence evidence was closed at request of the accused and the case was listed for final arguments.
FINAL ARGUMENTS
6. Final arguments were addressed on behalf of both the parties. I have heard Ld. Counsels for both the parties and have perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 5/14 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
7. It is not disputed by the accused that the Cheque in Question Ex. CW1/1 is drawn on the account maintained by him. Infact the accused in his statement U/s 313 of the Code has specifically admitted that the cheque in question Ex. CW1/1 belongs to him, however the accused denied his signature's on the same. Further the presentation, dishonor of the cheque in question and the cheque returning memo has also not been challenged by the accused. Therefore, In light of the evidence on record coupled with the admission by the accused it stands duly proved that the cheque in question Ex CW1/1 is drawn on the account of the accused. Further it also stands proved that the cheque in question Ex. CW1/1 was got dishonored vide cheque returning memo Ex. CW1/2 with the reason "Funds Insufficient".
8. From the perusal of the entire evidence it has come to fore that twofold defence has been taken by the accused. Firstly, that he has not been served with the legal demand notice by the complainant and the Secondly that he has not taken loan of Rs. 7,90,000/ from the complainant and he has taken loan of Rs. 1,45,000/ from the complainant which he has already repaid and the cheque in question Ex. CW1/1 do not bears his signature and the same has not been issued by him to the complainant in order to discharge his loan liability as alleged by the complainant.
CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 6/149. Coming to the first line of defence taken by the accused that he has not been served with the legal demand notice by the complainant. It is pertinent to note that the complainant Ram Karan has examined himself as CW1 and has specifically stated in his evidence affidavit Ex. CW1/A that he has got issued the legal demand notice Ex. CW1/3 to the accused through registered post and UPC. The complainant (CW1) has also placed the postal receipts Ex. CW1/4 (colly) and Ex. CW1/5 (colly) on record vide which the legal demand notice has been send to the accused. The complainant has also tendered in evidence the returned registered post envelope Ex. CW1/6 and the returned speed post envelope Ex. CW1/7. The accused Ashok Kumar has denied the receipt of the legal demand notice both at the time of framing of notice U/s 251 of the Code and also in his Statement U/s 313 of the Code. On perusal of the returned envelopes Ex. CW1/6 and Ex. CW1/7 it is revealed that they have been sent at RZ B208/1, Raj Nagar PartII, Palam Colony, New Delhi110045 i.e the same address as mentioned by the complainant in the complaint and the legal demand notice Ex. CW1/3. Further, on perusal of the returned envelopes Ex. CW1/6 & Ex. CW1/7 it is revealed that both of them have been returned unserved with remarks "no such number". Further perusal of the legal demand notice Ex. CW1/3 and the postal receipts Ex. CW1/4 (colly) and Ex. CW1/5 (colly) shows that the other address on which the said notice has been sent to the accused is Traffic Police Head Quarters, Traffic Police Lines, Todarpur, Near Inderpuri, New Delhi. The speed post tracking report Ex. CW1/8 placed on record by the complainant in respect of said address shows the status of the post as delivered. It is interesting to see that throughout the trial the accused has never challenged that the addresses mentioned on the legal demand notice Ex. CW1/3 or the returned envelopes Ex. CW1/6 & Ex. CW1/7 are incorrect or he was not residing and working respectively at the said addresses at the time when the legal demand notice was sent to him. It is also surprising to see that accused has simply denied the receipt of the legal demand CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 7/14 notice Ex. CW1/3 and has not any lead any evidence to corroborate his stand. Furthermore not even a single suggestion to this effect was put to witness CW1 (Complainant) during his cross examination by the counsel for the accused. Therefore in the absence of any contrary evidence it stands proved that the legal demand notice Ex. CW1/3 has been sent by the complainant at the correct addresses of the accused. It is trite to say that when there is service of notice by post on the correct addresses of the accused which evidently has taken place in the present complaint case there is always a presumption that the same has been duly served upon the accused unless some cogent evidence in rebuttal is adduced by the accused to establish that the legal demand notice has not been served upon him. It is further trite to say that even in cases of returned envelopes intentional non receipt of the same on the part of the accused would amount to proper service otherwise a trickster cheque drawer would avoid receiving the legal demand notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. Therefore, when notice has been dispatched through post there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that he has not been served with the legal demand notice which is totally absenting in the present case. It was for the accused to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that remarks on the returned envelopes are incorrect or he was not responsible for the non service. Except denials the accused has not any lead any evidence to corroborate his stand. Therefore it stands proved that the legal demand notice Ex. CW1/3 has been served upon the accused. As such non receipt of the legal demand notice as a defence on part of the accused has no force.
10. Coming to the second line of defence taken by the accused that that he has not taken loan of Rs. 7,90,000/ from the complainant CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 8/14 and he has taken loan of Rs. 1,45,000/ from the complainant which he has already repaid and the cheque in question Ex. CW1/1 do not bears his signature and the same has not been issued by him in order to discharge his loan liability as alleged by the complainant.
11. It is trite to say that the crux of penal liability under Section 138 of NI Act is that the Cheque in question must be issued for the discharge of any legal debt or liability. Existing of legal debt or liability is sine qua non for constituting the offence.
12. In the case in hand it is the case of the complainant that in the month of October 2010 the accused along with his wife approached him for granting a loan of Rs. 10,00,000/ lakhs stating financial difficulty and a loan of Rs. 7,90,000/ was granted by the complainant to the accused on 18.10.2010 and in discharge of his liability the accused has issued the cheque in question Ex. CW1/1. The accused has refuted the claim of the complainant. At the time of framing of notice under section 251 of the code the accused has stated that he has given two blank cheques to the complainant. The accused further stated that he had taken loan of Rs. 1,45,000/ from the complainant which he has already repaid. The accused also stated that he owes no liability towards the complainant. The accused also stated that the cheque in question Ex. CW1/1 do not bears his signature nor the contents of the same has been filled by him. In his statement under section 313 of the code the accused again denied having taken any loan of Rs. 7,90,000/ from the complainant and stated that he has taken a loan of Rs. 1,45,000/ from the complainant and further stated that blank cheque was given by him to the complainant and the complainant has not returned his cheque despite the payment. It was also contended by the accused that the cheque in question Ex. CW1/1 do not bears his signature and contents of the same has also not been filled by him. To corroborate his stand the accused has examined three witnesses in her defence. DW1 Kailash Chopra, Deputy Manager, SBI Bank, Palam Colony (drawee bank), DW2 Dr. Amulya Bharat and CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 9/14 DW3 handwriting expert Deepak Jain.
13. It is not the case of the accused that the cheque in question Ex. CW1/1 is not drawn on the account maintained by him. Further the issuance of cheque in question to the complainant has also not been disputed by the accused, the accused has simpliciter denied his signature and filling of particulars on the same. Further the taking of the loan by the accused from the complainant has also not been disputed by the accused, only the amount is disputed. Now coming to the aspect whether the cheque in question Ex. CW1/1 bears the signature of the accused. It is trite to say that an essential feature of a cheque is that it has to be signed by the maker. The accused has denied his signature on the cheque in question Ex. CW1/1 at both the stages under section 251 of the code and also in his statement under section 313 of the code. To prove the same the accused has examined the handwriting expert Sh Deepak Jain as DW3. The said witness has placed on record his report Ex. DW3/A and enlarged photographs of disputed, admitted and specimen signatures of the accused as Ex. DW3/B (Colly.). From the perusal of the report Ex. DW3/A it is revealed that the handwriting expert DW3 has come to the conclusion that the signature on the cheque in question Ex. CW1/1 are not that of the accused Ashok Kumar
14. It is pertinent to note that the cheque in question Ex. CW1/1 is drawn on State Bank of India Palam Colony branch and the same was deposited in the Syndicate bank, DTC S.N. Depot branch in the account of the complainant. It is also pertinent to note that the cheque in question Ex. CW1/1 is dishonored vide cheque returning memo Ex. CW1/2 due to "Funds Insufficient". It is quite surprising to see that the cheque in question Ex. CW1/1 bounced not on account of the fact that the signature on cheque in question Ex. CW1/1 was not tallying with the specimen signature of the accused kept with the bank, but on account of 'Funds Insufficient'. Had the signature on cheque in question Ex. CW1/1 been different, the bank would have CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 10/14 returned the same with the remark that the signature on the cheque in question Ex. CW1/1 was not tallying with the accused specimen signature's kept with the bank. The Cheque returning memo Ex. CW1/2 issued by the bank clearly show that signature of the accused on cheque in question Ex. CW1/1 was not objected to by the bank, but the same was returned with the remark " Funds Insufficient ". In the case of denial of signature by the drawer of a cheque, the best witness would be the concerned Bank Manager. It is interesting to see that the accused has also examined the official of his bank (drawee bank) as DW1. Now coming to the evidence of DW1 Kailash Chopra, Deputy Manager, SBI Bank i.e. the accused bank (drawee bank). DW1 has placed on record the statement of account of the accused as Ex. DW1/1 and has also placed on record the copy of the account opening form of the accused as Ex. DW1/2. The witness has also placed on record the photocopy of the cheque obtained for clearance from CTS as Ex. DW1/3. Surprisingly throughout his testimony DW1 has nowhere deposed about the fact that the cheque in question Ex. CW1/1 does not bears the signature of the accused or the signatures on the cheque in question Ex. CW1/1 do not tally with the signature of the accused available with the bank in records maintained by it. DW1 simpliciter has tendered the statement of the account of the accused, copy of the cheque obtained through CTS and account opening form of the accused. It is quite surprising to see that if the cheque in question did not bears the signature of the accused than what prevented the bank witness to testify to this effect in the court. Therefore, the silent testimony of DW2 and the return memo Ex. CW1/2 showing the dishonor of the cheque in question Ex. CW1/1 due to "Funds Insuffcient" clearly casts serious doubts about the report Ex. DW3/A given by the handwriting expert DW3 and surrounds the same with clouds of suspicion and further makes it evidently clear that the cheque in question Ex. CW1/1 bears the signature of the accused. Therefore, I have no hesitation in discarding the report Ex.DW3/A given by the handwriting expert DW3 as the surrounding evidence itself speaks to the contrary and makes the report submitted by the CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 11/14 witness highly unbelievable. Accordingly, I hold that the signature on cheque in question Ex. CW1/1 are that of the accused.
15. Coming to the aspect that the particulars in the cheque in question Ex. CW1/1 have also not been filled by the accused. It is also trite to say that once the signature on the cheque in question is proved to be that of the accused as has happened in the case in hand the plea of the accused that particulars in the cheque in question Ex. CW1/1 has also not been filled by him are of no consequence as 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, as no law provides that in case of cheque the entire body has to be written by the drawer only.
16. Now coming to the evidence of DW2 Dr. Amulya Bharat, the said witness has deposed before the court about the medical condition of the accused Ashok Kumar. The witness has stated that accused is under his treatment since April 2011 as he is suffering from Paranoid Schizophrenia. Interestingly DW2 has himself admitted in his testimony that accused is under his treatment since April 2011, whereas the alleged transaction has taken place on 18.10.2010 and the cheque in question is also dated 19.12.2010. Furthermore the witness has nowhere deposed that the accused is of legally unsound mind or is not capable of issuing a cheque or is not in position to obtain loan from the complainant or is not in a fit state to stand trial. The witness has simplicitor deposed that the accused Ashok Kumar is his patient and is under his treatment as such the evidence of the said witness is not at all relevant in the present proceedings and has not at all supported the case of the accused.
17. Therefore it is apparent that accused has not found support from any quarters. Further nothing material could be elicited from the cross examination of the complainant so as to doubt or disbelieve him and only suggestion have been put the witness. Further CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 12/14 the accused has not even examined himself as a defence witness to corroborate his stand. Furthermore the accused has also not lead any evidence to show that he has only taken loan of Rs 1,45,000/ from the accused and he has repaid the same. Apart from the aforesaid discussed vague and flawed defence, the accused has not lead any cogent evidence to corroborate his stand. It is trite to say that mere denial on the part of the accused would not absolve him from any liability. It was for the accused to prove the circumstances under which the cheque in question Ex. CW1/1 has come in the possession of the complainant by leading cogent evidence so as to discharge and rebut the presumption raised against him by the Statute U/s 139 and 118 (a) of the NI Act and mere simplicitor denying the allegations would not be at his advantage. Further, mere pleading non guilty at the stage of notice U/s 251 of the Code or giving explanations in statement U/s 313 of the Code or putting suggestions to the complainant in cross examination without leading any defence to corroborate the same would not be sufficient to discharge the burden of presumptions casted upon the accused by virtue of provisions of Section 118 (a) and 139 of the NI Act as there is no presumption of law that the explanations and suggestion given by the accused are truthful.
18. The accused has not brought any material on record and also no cogent explanations or any probable defence which would re but the shadow of presumption existing in favour of the Complainant. This court do not find any force in the arguments advanced by the learned counsel for the accused that the accused has succeeded in re butting the presumption under Section 139 of the Act.
19. From the materials brought on record and evidence lead by the parties it stands duly proved that the accused has failed to rebut the presumptions U/s 118 (a) and section 139 of the NI Act. Therefore, I hereby hold that the Complainant has proved and substantiated its allegations that the cheque in question Ex. CW1/1 was issued by the ac cused in discharge of his legal liability and for consideration. Further CC No. 5053/14 Ram Karan Vs. Ashok Kumar Page No. 13/14 more, it also stands proved that no payment has been made by the ac cused to the complainant within 15 days from the receipt of the legal demand notice.
20. In view of the aforesaid discussion, I hereby hold that the complainant has proved and substantiated its allegation against the accused and all the ingredients of Section 138 of NI Act also stands proved. Accordingly, accused Ashok Kumar S/o Sh. Vijay Singh, is hereby convicted for the offence U/s 138 of NI Act.
This Judgment contains 14 pages and every Page of this judgment has been signed by me.
Announced in the open Court (RAVINDER SINGH II)
Dated 30.08.2014 MM (NI Act 07)
Dwarka/New Delhi
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