Delhi District Court
Signature On The Cheque Is Disputed : As ... vs . on 14 February, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
CC No. : 740/1/11
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0362962010
Sh. Praveen Kumar S/o Sh. Prem Chand
R/o 527E, Gali No. 4, Prem Gali, East Babarpur, Shahdara, Delhi32.
.............. Complainant
Vs.
Sh. Kishan Pal Tomar S/o Sh. Hukam Singh Tomar
R/o 51/52, Shiv Mandir Gali, Babarpur, Shahdara, Delhi32.
............. Accused
Date of Institution : 24.12.2010
Plea of accused : Pleaded not guilty
Date of pronouncement : 14.02.2013
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant had given a friendly loan of Rs.50,000/ in first week of January, 2010 to the accused for the marriage of his son namely Deepak Tomar and accused in lieu of repayment of the loan amount issued a cheque bearing No. 500403 dated 01.06.2010 of Rs.50,000/ drawn on ICICI Bank Ltd., Preet Vihar Branch, Delhi, which on presentation got dishonoured vide memo dated 18.11.2010 and returned back with remarks "Insufficient Funds". Thereafter, a Legal Notice dated 22.11.2010 Ex. CW1/C Page No.: 1 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) was sent by complainant through his counsel by Regd. A.D. and UPC vide postal receipts Ex. CW1/D, CW1/E and CW1/F respectively on 23.11.2010. However, despite that the accused failed to make any payment within the statutory period, hence, this complaint.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 24.12.2010.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. Notice was framed against the accused u/s 138 N.I. Act on 07.02.2012 and in reply to notice the accused admitted the cheque in question, but, denied his signature on the cheque and the accused took the defence that his cheque was stolen by the complainant and complainant has misused the same. Accused further stated that he has also instructed his banker to stop payment of cheque in question.
4. Oral request was made for crossexamination of complainant u/s 145(2) N.I. Act and in view of the mandatory provision of section 145(2) N.I. Act (as per judgment of Hon'ble Delhi High Court titled Rajesh Aggarwal Vs. State dated 28.07.2010) on 07.02.2012 request was allowed. On 19.04.2012 complainant was crossexamined at length by Ld. Defence Counsel and on the same day complainant closed his CE. Thereafter, on 18.07.12 Statement of Accused was dispensed with as no new evidence/ incriminating fact has come on record which was not put to accused at the stage of framing of notice u/s 251 Cr.P.C, and thereafter, case was fixed for DE. Only DW1 Vaibhav Motani from ICICI Bank was examined during DE, thereafter, on 03.12.12 DE was closed and matter was listed for Final Arguments. Final arguments were heard on 24.01.13 and matter was listed for order on 06.02.13, however, as on 06.02.13 Presiding Officer has gone Tihar Jail for TIP, hence, the matter was listed for judgment today. Page No.: 2 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E)
5. The questions before the court for the disposal of the complaint are:
(i) Whether the cheque in question was given by the accused to the complainant in discharge of legally enforceable debt?Disputed as the accused in his reply to notice u/s 251 Cr.P.C took the defence that the cheque in question was stolen and that the same has been misused by the complainant.
(ii)Whether the cheque in question was dishonored on presentation? Undisputed, as the accused never disputed the fact that the cheque was dishonored and this fact also stands proved from the return memo Ex. CW1/B.
(iii)Whether the reason for dishonor of cheque was Insufficient Funds?Undisputed, as the accused never disputed that the cheque was dishonored because of aforesaid reason and this fact also stands proved from the return memo Ex. CW1/B.
(iv)Whether the cheque was presented within the period of 6 months from the date when it was issued?Undisputed, as the accused never disputed that the cheque was presented in time and this fact also stands proved from Ex. CW1/A wherein date of cheque is 01.06.2010 and return memo Ex. CW1/B dated 18.11.2010.
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank?Disputed, as the accused in reply to notice u/s 251 Cr.P.C did not admit receipt of Legal Notice.
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(vi)Whether the accused failed to make payment of cheque amount within 15 days of receipt of said notice?Undisputed, as the accused never took the defense that the payment was made by him, rather, he took the defence that the cheque in question was stolen and that the same was misused by the complainant.
6. On the basis of the evidence on record, complainant sought conviction on the ground that the cheque in question was given by accused towards return of Rs.50,000/ which was received by the accused from the complainant as friendly loan.
7. On the other hand, Ld. Defence Counsel sought acquittal on the ground that the cheque in question was stolen and that the said stolen cheque has been misused by the complainant by filing the present case.
8. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIONS:
In order to prove the allegations, CW1 Praveen Kumar appeared in the witness box as CW1 and filed his affidavit by way of evidence in which he reiterated the allegations made by him in the complaint. The documents produced by the complainant and exhibited are:
(a) Dishonored cheque bearing No. 500403 - Ex. CW1/A. (b ) Returning Memo - Ex. CW1/B.
(c) Legal Notice dated 22.11.2010 - Ex. CW1/C.
(d) Receipt of Regd. A.D. - Ex. CW1/D.
(e) UPC - Ex. CW1/E. (f ) Returned postal envelope with the remarks refused Ex. CW1/F.
9. PRESUMPTION : Page No.: 4 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) The complainant produced the original cheque, return memo, legal notice and postal receipt/ courier receipt. He also appeared as witness to support his allegations with his testimony by way of affidavit.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheques are dishonored by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonored by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
An argument was raised as regards the extent of presumption which can be raised in favour of the complainant and against the accused. While the complainant submitted that the presumption is as regards legally enforceable debt, the accused submitted that the presumption is as regards existence of debt only and not as regards legally enforceable debt.
However this issue now stands settled in the light of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court Page No.: 5 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 that "the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not 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." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words : "The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of low, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
It is further held that : "The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man Page No.: 6 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) would act on the supposition that it exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheques in question were issued in discharge of a legally enforceable debt or liability.
10. DEFENCE OF THE ACCUSED : The accused has admitted that the cheque belongs to him, but, he denied his signature on the same. However, accused took the defence that the said cheque was stolen and that the said cheque is now being misused by the complainant by filing the present case.
The court would now discuss the evidence on record and the arguments put forth by the parties in tabular form for proper appreciation of evidence and issues between the parties : Sr. No. Accused Complainant 1 :Signature Accused in reply to notice u/s 251 Cr.P.C That the accused has himself on the cheque admitted that the cheque pertain to his handed over the cheque to is disputed. account, but he denied his signatures on the complainant and that he has same and this fact was proved by DW1 deliberately sign the cheque in Vaibhav Motani, a witness summoned from the English, despite knowing that the bank of the accused, who brought the entire specimen signature in the bank record of the bank account mentioned on were in Hindi. cheque and stated that the sign on cheque is in English and different from specimen signature available with the bank.
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Sr. No. Accused Complainant
2 : Legal The complainant has wrongly mentioned the The address of accused as H. No.
Notice address of accused Kishan Pal Tomar as H. 51/52 Shiv Mandir, Main Road,
whether No. 51/52, Shiv Mandir Gali, Babarpur, Babarpur, Delhi has been
served or not. Shahdara, Delhi, though the correct address of mentioned in Voter I Card of
accused was 51/17, Shiv Mandir Gali, West accused which was produced by
Babarpur, Delhi. It is further submitted that the DW1 with bank record, thus, the
address at which the notice was sent does not address of accused is correctly
specify East or West Babarpur and the mentioned on legal notice and
address is incomplete, hence, the notice was envelope and the accused
never served. deliberately refused to accept the
legal notice as is clear from
returned envelope.
3 : Payment The accused submitted that complainant has Complainant submitted that he
how and failed to state as to when and how payment came in possession of the cheque
when made. was made in the complaint. The complainant as the same was given to him by
in his affidavit stated for the first time that loan accused and he is having the
was paid in January, 2010, as accused benefit of presumption u/s 118 &
approached deponent for money for marriage 139 N.I. Act in his favour.
of his son Deepak Tomar. However, in cross
examination, the complainant admitted that
marriage of Deepak took place in November,
2008 and that in 2009 there took a quarrel
between Deepak and Complainant with
respect to the amount in dispute which is not
possible as the complainant stated that loan
was advanced in January, 2010.
4 : Cheque That the cheque of accused was stolen by There is no complaint regarding
stolen complainant and that he forged the signatures stolen cheque and no letter
of accused on the same and presented it. regarding stop payment instructions
That, because of this reason, accused also was either filed by the accused or
issued stop payment instruction to bank. produced by the banker of accused
through DW1 Vaibhav Motani. The
cheque got dishonoured due to
insufficient funds and not due to
stop payment by drawer.
1.Signature on the cheque is disputed : As regards this issue, a perusal of the record reveals that the accused in reply to notice u/s 251 Cr.P.C admitted that the cheque pertains to his account, but he denied his signatures on the same. The accused in his defence evidence summoned a witness from his bank and Page No.: 8 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) the said witness namely DW1 Vaibhav Motani brought the entire record of the bank account number mentioned on the cheque and stated that the signature on cheque is in English and different from specimen signature available with the bank. The court has also gone through the record filed by this witness which is Ex. DW1/A and found that the specimen signature of the accused in the said bank account is in Hindi and not in English and for this reason there cannot be any comparison between the signature on the cheque which is in English and specimen signature in the Bank Account which are in Hindi.
(a) Ld. counsel for the complainant submitted that in view of the judgment titled M/s Laxmi Dyechem Vs. State of Gujarat in Crl. Appeal No. 1910 49 of 2012 decided on 27.11.2012 by the Hon'ble Supreme Court, the drawer of the cheque is liable u/s 138 N.I. Act even if signature differ on the cheque.
(b)The court has gone through the said judgment of Hon'ble Supreme Court and the this court found that the said judgment relates to bouncing of a cheque in a case where the signature did not match because the specimen signature provided by the company to its banker were changed upon change of Directors of the Company.
(c)The facts of the present case are entirely different and the accused has categorically denied his signature on the cheque and his denial is further corroborated by the testimony of Bank Witness DW1 Vaibhav Motani. Besides this, the cross of the complainant in this regard is also relevant and hence reproduced as under : "The cheque Ex. CW1/A was filled by me in the presence of accused including date, amount. It is incorrect to suggest that sign on Ex. CW1/A is forged and not that of accused. Vol. :
He may have got the cheque signed by his son. Again said :
Page No.: 9 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) Accused signed in my presence."
(d)Thus, from the crossexamination of the complainant it is clear that the cheque has been filled up by the complainant and as regards the signature on the cheque, it seems that the complainant is not very sure as to whether the signature on the cheque are that of the accused or whether the accused got it signed from his son.
(e)In view of the above discussions, the court is satisfied that the aforesaid argument/ defence goes in favour of the accused and against the complainant.
• However, it is made clear that in case the signature on the cheque is actually of the accused and the complainant can prove this fact then the complainant has an option to approach the concerned court under relevant section of IPCs but not under N.I. Act.
: An argument was made by the accused
2.Legal Notice whether served or not that the complainant has wrongly mentioned the address of accused Kishan Pal Tomar as H. No. 51/52, Shiv Mandir Gali, Babarpur, Shahdara, Delhi, though the correct address of accused was 51/17, Shiv Mandir Gali, West Babarpur, Delhi. It is further submitted that the address at which the notice was sent does not specify East or West Babarpur and the address is incomplete, hence, the notice was never served.
(a)A perusal of the record reveals that legal notice was sent to the accused by registered post and UPC at address H. No. 51/52, Shiv Mandir Gali, Babarpur, Shahdara, Delhi110032. A perusal of the record also reveals that the accused had summoned a witness from his bank and the said witness DW1 Vaibhav Motani, produced the account opening form of the accused along with the documents filed by the accused at the time of opening the account. Page No.: 10 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) As per the the Voter I card of the accused bearing No. DL/04/048/081012 that address of the accused is "51/52, Shiv Mandir Gali, Main Road, Babarpur, Delhi". The same address has been mentioned in the Savings Bank Account Passbook of the accused of Punjab & Sind Bank the copy of which was filed by the accused with the account opening form. The said documents were produced by DW1 and the same are collectively Ex. DW1//A (colly).
(b) From these documents it is clear that the address of the accused as mentioned in the UPC and also on the returned envelope is correct and the argument of the accused that the address was incomplete or incorrect do not stand proved.
(c)Moreover the returned envelope Ex.CW1/F was returned due to refusal and not due to incorrect or incomplete address. Thus, there is deemed service of the notice upon the accused in view of the refusal to accept notice by registered post. The said presumption do not stand rebutted as the accused has not entered the witness box to state on oath that the acceptance of notice was not refused by him and that the report on the returned envelope Ex. CW 1/F is forged.
(d)In judgment titled Mahmuda Khatun Vs. Ajit Chandra Deka AIR 1978 NOC 112 (GAU) it was observed the Hon'ble Gauhati High Court as under : The presumption of service of a notice sent under registered post is availabvle under sections 16 and 114 (e) of the Evidence Act as well as under Section 27 of the General Clauses Act only when the plaintiff proves that the letter was properly addressed and was put into the Post Office. The mere fact that the full address was given in the body of the notice, does not raise any presumption that the envelope containing the notice was also correctly addressed. At any rate presumption under Sections 16 and 114 (e ) of the Evidence Act as well as under Section 27 of the General Clauses Act is a rebuttable one. When the person on whom the notice is said to have been served appears before the Court and denies on oath that the notice was served on his, the presumption is rebutted and in such a case the evidence of the Postman becomes necessary. Page No.: 11 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) (emphasis supplied)
(e)n the present case, the complainant is relying upon the presumption which are in his favour u/s 16 and 114 (e) of the Evidence Act and under section 27 of General Clauses Act and the court understands that the said presumptions are not conclusive presumptions and that they are rebuttable one. However, in the present case nothing has been done by the accused to rebut the presumptions as mentioned above. He never denied on oath that the notice was served upon him and in absence of such denial on oath the presumption cannot be rebutted by merely saying that the address on the postal receipt and the UPC is incomplete or incorrect, in view of the aforesaid judgment. Had the accused denied on oath that he never received the legal notice sent by complainant or that he never refused to accept the legal notice and that the reporting on the returned envelope is wrong it would have become necessary for the complainant to examine the post man in order to prove service of notice. However, in absence of such denial on oath, the presumption stands unrebutted, more so because the address of accused as mentioned in legal notice, UPC and the returned envelope is correct as per the record filed by DW1 i.e Ex.DW1/A (colly).
(f) Thus, the service of the notice stands proved in view of the legal presumptions and in view of the discussion made above.
: The accused submitted that complainant has
3.Payment how and when made failed to state as to when and how payment was made in the complaint. The complainant in his affidavit stated for the first time that loan was paid in January, 2010, as accused approached deponent for money for marriage of his son Deepak Tomar. However, in crossexamination, the complainant admitted that marriage of Deepak took place in November, 2008 and that in 2009 there took a Page No.: 12 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) quarrel between Deepak and complainant with respect to the amount in dispute which is not possible as the complainant stated that loan was advanced in January, 2010.
(a)The said submission of the accused is found to be correct as in the affidavit it has been stated that the loan was granted by the complainant to the accused in first week of January, 2010 as the accused was in dire need of money for the marriage of his son namely Deepak Tomar, but in the cross examination the complainant admuitted that Deepak Tomar got married on 9.11.2008 and he also admitted that as regards the said loan amount, a quarrel also took place between Deepak Tomar and the complainant in 2009. The relevant portion of the cross examination of the complainant in this regard is reproduced as under:
" ... I attended Deepak's marriage as I was invited. His marriage took place in Nov 2009, probably on 11th. It is correct that in legal notice I have stated that accused took money from me in Jan, 2010, for marriage of Deepak. Vol: The loan was taken for payment of expenses already incurred in marriage. It is correct that the marriage took place on 9.11.2008. Vol: Due to confusion I did not remember the year. .................... It is correct that in 2009 there took a quarrel between me and Deepak. Vol: The said quarrel was with respect to money involved in this case as I had demanded the said money from him, but he refused to pay it. In the complaint to police I did not mention that the quarrel was with respect to money transaction. Vol: Complaint was only wrt abusive language used by accused on telephone."
(b)From the said cross examination of the complainant it is clear that a quarrel had taken place in the year 2009 between Deepak Tomar and the complainant as regards the money in dispute in this case, as the complainant had demanded the said money from Deepak who had refused to pay the Page No.: 13 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) same. The said testimony of the complainant is contrary to the deposition made in the affidavit as in the affidavit the complainant stated that the loan was advanced in the first week of January 2010 and if it is so then how could the complainant ask Deepak to return the said money in 2009.
(c)Thus, this argument of the accused is found to be correct as per record and it creates a serious doubt in the mind of the court as regards the liability behind the cheque in question and thereby absolves the accused of penalty under section 138 N.I.Act.
4.Cheque stolen : The accused took the defence that the cheque of accused was stolen by complainant and that he forged the signatures of accused on the same and presented it. That, because of this reason, accused also issued stop payment instruction to bank.
(a)The complainant on the other hand argued that there is no complaint regarding stolen cheque and no letter regarding stop payment instructions was either filed by the accused or produced by the banker of accused through DW1 Vaibhav Motani. The cheque got dishonoured due to insufficient funds and not due to stop payment by drawer.
(b)Though the accused has taken the defense that his cheque was stolen and misused by the complainant, and that the accused had issued stop payment instructions to his banker, the accused failed to produce any complaint made by the accused to the police or other authorities as regards stolen cheques and he also failed to bring on record any document to show that stop payment instructions were issued by him to his banker. Though, accused had summoned his banker and DW1 from the bank of the accused came and deposed before the court, but no such document was produced by DW1 Page No.: 14 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E) which would show that the accused had issued stop payment instructions to its banker as they cheque in question was stolen by the complainant or some other person.
(c)Thus the accused failed to show that the cheque in question was stolen and that he had issued stop payment instructions to its banker as regards the cheque in question.
BESIDES this the complainant also admitted in his cross examination that he had not mentioned about the present loan in the ITR filed by him with the Income Tax Department.
11. CONCLUSION : In view of the above discussions and cited judgments, it is clear that the accused has proved that the specimen signature with his banker and the signatures on the cheque in question are entirely different and through the cross examination of the complainant he has been able to rebut the presumption u/s 139 N.I. Act. Accordingly, accused Kishan Pal Tomar is Acquitted for the offence u/s 138 N.I. Act.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 14.02.2013.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/14.02.2013 Certified that this judgment contains 15 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/14.02.2013 Page No.: 15 / 15 CC No. 740/1/11 S.P.S. Laler, MM06 (E)