Delhi District Court
Parvesh Tyagi vs Saurabh Sharma Cc No. 6424/2017 Page ... on 23 December, 2019
IN THE COURT OF SHRI SUKHMAN SANDHU, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
New CC No.6424/17
Under Section 138 of N.I. Act
In the matter of:
PARVESH TYAGI
s/o Shri Giriraj Tyagi,
R/o House no.WZ-125,
Village Budhela,
Vikaspuri,
New Delhi - 110 018. ... Complainant
Versus
SAURABH SHARMA
s/o Shri Bishan Sharma,
R/o C-191, First floor,
Vikaspuri,
New Delhi -110 018. ..... Accused
Date of Institution : 10.04.2017
Date on which judgment was reserved : 04.10.2019
Date of Judgment : 23.12.2019
JUDGMENT
1. The present case under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act,) arises out of a complaint alleging, inter alia, that in the month of January 2015, the accused approached the complainant and requested the complainant to advance him a sum of Rs.2,50,000/-, as the accused was facing some hardships in his business. On account of friendly relations, the complainant Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.1/17 advanced the accused a friendly loan of Rs.2,50,000/- which was to be repaid by the accused within a period of two years. Further, in the month of February, 2017, when the complainant asked the accused for the repayment of the loan amount, the accused, in order to discharge his legal liability issued a cheque bearing no.049921 dated 14.02.2017 for a sum of Rs.2,50,000/- drawn on Central Bank of India, Anand Parbat, New Delhi Ex.CW1/1 (hereinafter referred to as 'Cheque in question'). The same, on presentment by the complainant, was returned by the bank with endorsement, 'Funds Insufficient', vide return memo dated 15.02.2017 (Ex.CW1/3). Constrained, the complainant sent a legal notice dated 01.03.2017, demanding the cheque amount of Rs.2,50,000/-. Thereafter, on non-payment of the amount, the present complaint was filed.
2. On the accused entering appearance, Notice under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), was framed against the accused, to which he pleaded not guilty. In his plea of defence recorded in the abovestated notice, the accused, denied the signatures on the cheques in question to be his. He further deposed that the cheque in question was a blank cheque when the same was handed over to the complainant. He further deposed that he had issued the cheque in question to the accused as his brother Nitin Sharma had taken a loan from the complainant and he had stood guarantor on behalf of his brother, Nitin Sharma.
3. The complainant chose to examine himself as sole Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.2/17 complainant witness. The complainant adopted his pre- summoning evidence tendered by way of affidavit at the post summoning stage.
4. In his cross examination, it was elicited from the complainant that he had advanced loan of Rs.2.5 lacs to the accused in January 2015 which was sourced from the retiral benefits of his father. He admitted to not being an income tax payee and also to not having executed any written documents evidencing the loan transaction. He deposed that the cheque in question was issued by the accused in February 2017 and he demanded the loan from the accused. He, thereafter, denied the various suggestions put to him by the counsel for the accused.
5. In the statement of accused recorded under section 313 CrPC and in his deposition as DW1, the accused deposed that he had handed over the cheque in question to the father of the complainant in year 2013-2014 as security for loan taken from the father of the complainant. The accused thereafter, deposed to not having signed the cheque in question. The accused sought to rely upon letter Ex.DW1/1. In his cross examination, it was elucidated by him that in his application under section 145(2) NI Act, he had mentioned that his brother had taken a loan from the father of the complainant of Rs.7 lacs and the cheque in question has been issued as a security for the same. He further deposed that his brother had already repaid the loan. He, thereafter, admitted the address mentioned on the legal demand notice sent by the complainant to be his address. On a court question being put to the accused about the correctness of two of his Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.3/17 contradictory statements, that in his testimony dated 18.01.2019, he had deposed that the cheque in question was handed over to the father of the complainant in year 2013-14, and in his testimony dated 16.02.2019 he had deposed that the cheque in question was handed over by him to his brother which one was correct. The accused replied that the cheque in question was handed over by him to his brother for the purpose of being further handed over to the father of the complainant. The accused also examined a bank official as DW2 who sought to rely upon the account opening form Ex.DW2/1, dishonoured cheque Ex.DW2/2 and Statement of account is Ex.DW2/3.
6. Law regarding the ingredients of the offence punishable Section 138 NI Act is well settled. It was held by the Hon'ble Apex Court in the case of 'K. Bhaskaran v. Sankaran Bala' [1999 (7) SCC 510], that ''Offence under section 138 of the NI Act, can be completed only with the concatenation of a number of facts namely,
(i) drawing of the cheque;
(ii) presentation of the cheque to the bank;
(iii) returning the cheque unpaid by the drawee bank;
(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
(v) failure of the drawer to make payment within 15 days of the receipt of the notice''.
It was further held in the abovementioned case that:-
Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.4/17 ''As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act, can be legally be inferred that the cheque was made or drawn for consideration, on the date which the cheque bears. Section 139 of the Act enjoins the court to presume that the holder of the cheque received it for discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption''.
7. File perused and arguments heard. After going through the record and hearing submissions advanced on behalf of the parties, two issues arise for consideration, firstly whether the legal demand notice was validly served upon the accused and secondly whether the cheque in question has been issued by the accused in discharge of legally enforceable debt / liability to repay the alleged loan of Rs.2,50,000/-.
8. Let us begin by examining first, the aspect of service of legal notice. The defence of the accused is that he did not receive the legal notice. However, in his cross examination, the accused admitted that the address mentioned on the legal demand notice was his correct address. This address on the legal notice once having been shown to be correct address of the accused and the legal notice having been dispatched by registered post, a presumption of due service arises (in view of Section 27 of General Clauses Act and Section 114 of Indian Evidence Act) and now it was incumbent on the accused to lead evidence to prove that the notice was not served on him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. To the Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.5/17 contrary, perusal of record shows that the complainant has issued a legal demand notice Ex.CW1/3 to the accused and the same was despatched by way of speed post on 01.03.2017. In any event, in view of the authoritative Judgment of Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed and Ors. (2007) 6 SCC 555, the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. The relevant extract of the decision deserves to be quoted in extenso :-
''17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of Act, make payment of the cheque amount and submits to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court alongwith the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.6/17 under Section 27 of the G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''.
9. The non service of legal notice challenge having been met, let us now turn to the core issue in this case and examine ''whether the cheque in question can be said to have been issued in discharge of legal liability or not''.
10. At the stage of final arguments, it has been vociferously argued by the Ld. Counsel for the complainant that the presumption under section 118 read with Section 139 of the NI Act, arises in favour of the complainant and the accused has failed to rebut the said presumption. Further, it has been submitted, that on account of admission by the accused that his brother had availed a loan of Rs.7 lacs from the complainant and his family members, the factum of advancement of loan stands proved.
11. At this stage it would be relevant to refer to Judgment of Hon'ble Apex Court rendered in, 'Basalingappa v. Mudidasappa', AIR 2019, SC 1983, wherein the principles in relation to the presumption raised under section 118 (a) read with Section 139 were summarised as under :
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
Once the execution of cheque is admitted Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.7/17 Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(i) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(ii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iii) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden.
(iv) It is not necessary for the accused to come in the witness box to support his defence.
24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability."
12 It has been argued by counsel for the accused, at the stage of final arguments, that the burden upon the accused is that of preponderance of probabilities and the same was discharged by the accused as the cheque in question did not bear his signatures and therefore, liability under section 138 NI Act, does not arise against the accused. However, at this stage, it Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.8/17 would be pertinent to refer to order dated 03.04.2019 of this court which is reproduced hereunder:-
''Vide this order I shall be disposing of the application filed by the accused under section 45 read with section 73 of the Indian Evidence Act.
1. The accused has averred in the instant application that the details on the cheque in question have been forged / tampered by the complainant and therefore, only an expert can prove that the cheque in question have been forged and tampered with by the complainant.
2. Before deciding the instant application, it is pertinent to mention that the accused had summoned a bank official from his banker, Central Bank of India and the said witness has brought on record the bank account opening form which contains the specimen signatures of the accused.
3. During the testimony, the said bank official (DW2) had deposed that as a matter of practice, the bank does not verify the signatures of the drawer on a cheque before returning the cheque a dishonoured on the ground of 'Funds Insufficient'. In these circumstances, the accused has preferred an application under section 45 read with Section 73 of Indian Evidence Act, requesting the court for taking an expert's opinion to ascertain the correctness and genuineness of the accused 's signatures on the cheque in question.
4. Right at the outset, it is pertinent to mention that the Hon'ble Apex Court has, in a case titled as 'Kalyani Bhaskar vs M. S. Sampooranam, 2007 (2) CTC 364, has held that, ''Adducing evidence in support of defence is available right and the denial of that right, means denial of fair trial and that a court must grant the request for sending cheque in question for opinion of handwriting expert unless the court is of the opinion that the object of the applicant is vexatious or to delay that the adjudication of the criminal proceedings''.
Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.9/17
5. It is a matter of judicial notice that one of the easiest way to secure protraction of a trial, is to make a request to send the cheques to an expert. It is trite that every such request of an accused is not to be automatically and ritualistically accepted and allowed by a court. Before such a request is allowed, the accused / applicant must show sufficient and satisfactory reasons to justify such reference to an expert.
6. In my opinion, for the reasons mentioned below, the present application of the accused requesting for referring the cheque in question for an expert opinion lacks merit and has been filed, with the only objective of delaying the adjudication of the present trial and therefore, the application deserves to be dismissed.
(a) The cheque in question in the present case has been dishonoured on the ground of ''Funds Insufficient'' and not ''Drawer's signatures differs''. Though, the officer of the banker of the accused (DW2) has deposed that ordinarily as a matter of practice, the signature of the accused / drawer of the cheque has not been verified as there were 'Insufficient funds'', in the account of the accused. However, I am not inclined to believe the version of DW2 as he has deposed contrary to the established guidelines issued by Reserve Bank of India in respect of clearing of cheques. It is pertinent to mention that as per the guidelines contained in New Delhi Banker Clearing House Procedural Guidelines, manual of systems and procedures, every cheque has to be processed by a bank after following prudent practices. The prudent practices, inter alia contains the practice to verify the signatures of the drawer of the cheque when the same is presented for encashment. Therefore, every bank including the banker of the accused is ordained by the procedural guidelines to verify the signatures of the drawer of the cheque before the same is honoured or dishonoured. I am not inclined to believe that the banker of the accused has not followed the abovestated guidelines. More so, when DW2, was not himself the said officer who had Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.10/17 processed the cheque in question, when the same was presented for encashment.
(b) At the same time, a bare perusal of cheque in question shows that the cheque was duly checked and scanned under UV Lamp. At the backside of the cheque, a stamp ''Ultra Violet Checked'' has been affixed by the banker of the accused. As per the RBI Guidelines, issued in the year 2014, every banker is under an obligation to check all cheques above a sum of Rs.2 lacs under UV Lamp against possible forgery / tampering of the instrument. The same has been done by the banker of the accused in conformity with the above guidelines. This in itself shows that the banker of the accused has been following the RBI guidelines in relation to processing of cheques in question which are presented for encashment. The purpose of the examining the cheque under UV Lamp is to detect any kind of forgery and tampering. Therefore, once the cheque in question has been checked under UV Lamp by the banker of the accused, presumption can be raised that the cheque in question has not been forged or tampered with by any person.
(c) At the same time, assuming that the banker of the accused had not tallied / verified the signatures of the accused on the cheque in question, in such case also, there is no requirement of sending the cheque in question for an expert opinion as the account opening form of the accused which contains the specimen signatures of the accused has been brought on record by DW2 (officer of the bank of the accused). I have myself examined with precision the signatures of the accused on the cheque in question with the signatures of the accused on the account opening form Ex.DW2/1 by exercising powers under section 73 of Indian Evidence Act. I do not have even a slightest doubt in holding that the specimen signatures of the accused on the account opening form are exactly the same which have been appended by the accused on the cheque in question.
Both the signatures show fundamental similarities in the manner of making strokes. At the same time, the manner in which the letter 'S', has been written in the signatures available in the bank account opening Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.11/17 form and on the cheque in question, dispels any doubt which might arise in the mind as to the genuineness of the signatures of the accused on the cheque in question.
7. Cumulatively seen, there is no plausible ground for sending the cheque in question for expert opinion. The conduct of the accused in the present case is unequivocal to the effect that he shall leave no stone unturned to delay the adjudication of the present case. The instant application is an act of contrivance with the only objective of delaying the adjudication of the case.
8. At the same time, I am not oblivious to the fact that the accused has deposed that the cheque in question does not bear his signatures. Despite the same, I am not inclined to believe the version of the accused and refer the cheque in question for expert opinion. Suffice it to mention that at this stage, the testimony of the accused cannot be accepted at its face value as the same is not of sterling quality. The accused had, in his testimony deposed that he had handed over cheques in question to the father of the complainant in the year 2013-14. Contrary to the claim made by him as a defence witness, the bank account opening form (Ex.DW2/1) clearly shows that the bank account on which the cheque in question has been drawn was opened in month of April 2015 and therefore, in the ordinary course of nature, it was not possible for the accused to hand over the cheque in question in the year 2013-2014. Thus, prima facie, the accused / DW1 has deposed falsely in the witness box. The legal consequences of the abovestated deposition of the accused shall be determined at the stage of conclusion of trial.
9. Consequently, the application of the accused to refer the cheque in question for expert opinion stands dismissed''.
13. I am in agreement with the view expressed by the Ld. Predecessor of this court as above and have no hesitation in Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.12/17 holding that after a separate examination of the cheque in question against the signatures of the accused on the account opening form Ex.DW2/1, that the cheque in question bears the signatures of the accused. Thus, eliminating any doubt as to the genuineness of the signatures of the accused.
14 . At this stage, once again reference must be made Judgment of Hon'ble Apex Court rendered in, 'Basalingappa v. Mudidasappa', AIR 2019, SC 1983, wherein the principles in relation to the presumption raised under section 118 (a) read with Section 139 were summarised as under :
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 27 (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence."
15. It was further observed in the abovementioned case as hereunder:-
Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.13/17 "17. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, this Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:- "18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable.
When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. ........................The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-
Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.14/17 existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist......"
16. A cumulative analysis of the above decision, reveals that though the burden on the accused is that of preponderance of probabilities, he need not even enter the witness box in support of his defence and may rely upon the material submitted by the complainant in order to raise a probable defence. The accused is also not expected to disprove the existence of the consideration and debt by leaving direct evidence because of the impossibility of adducing negative evidence. However, as has been categorically held by the Hon'ble Supreme Court, a bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused. Something must be brought on record for getting the burden of proof shifted to the complainant whether it be in the form of evidence led by him or by pointing out the inherent improbabilities in the case as set up by the complainant.
17. Now, let us begin to examine, if the accused has on the scale of preponderance of probabilities been able to rebut the Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.15/17 presumption envisaged under Section 118 (a) read with Section 139 of NI Act. The defence that the accused has sought to set up is that he has handed over the cheque in question to the father of the complainant in the year 2013-2014 as his brother had taken a loan from the father of the complainant. However, his own documents Ex.DW2/1, i.e. the bank account opening form, clearly shows that the bank account on which the cheque in question has been drawn was opened in the month of April 2015 leading to the necessary conclusion that the above defence of the accused is a sham defence, nothing but a cock and bull story conceptualized in order to escape from the liability under the cheque in question. No cogent evidence has been led by the accused in order to probablize his defence. The accused has infact sought to establish a defence on the basis of false dispositions not supported by his own documents.
18. Nevertheless, the burden upon the accused could also be discharged by the accused pointing out inherent improbabilities in the case as advanced by the complainant. In the cross examination of the complainant, nothing substantial could be elicited from the complainant, the complainant stuck to the version as put forth by him in the complaint and in his affidavit tendered in evidence.
19. In view of the above, I have no hesitation in holding that the defence as advanced by the accused is a sham defence, nothing but a cock and bull story to escape from the liability arising from the cheques in question. Therefore, in my opinion, Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.16/17 the accused has not succeeded in rebutting the presumption of legal liability even on the scale of preponderance of probabilities. The accused has failed to punch holes in the case of the complainant, and he has in fact, by his admission of friendly relations with the complainant, and that of having availed a loan of Rs.12 lacs from the father of the complainant, further strengthened the case of the complainant, and explains away, the absence of any documentary proof evidencing the advancement of the loan in question.
20. The complainant has, with the aid of, inter alia, evidence led, admissions in his favour, and the presumption of legal liability under Section 118 read with Section 139 of the NI Act, in his favour, successfully proved the basic ingredients of the offence under Section 138 NI Act.
21. Resultantly, the accused SAURABH SHARMA stands convicted for the offence under Section 138 NI Act. Let the convict be heard separately on the quantum of sentence.
22. Let a copy of the Judgment be supplied to the accused, free of cost, and a copy of the Judgment be placed on record.
Digitally signed by SUKHMAN SANDHU SUKHMAN Decided on 23.12.2019 SANDHU Date: 2019.12.24 Announced in open court. 16:35:17 +0530 (SUKHMAN SANDHU) MM (NI Act)-01/SW/DWK New Delhi/23.12.2019 Parvesh Tyagi vs Saurabh Sharma CC NO. 6424/2017 PAGE NO.17/17