Delhi District Court
Sanjeev Mishra vs . Lalit Kumar Cc No. 9430/2017 Page No. 1 ... on 27 July, 2022
IN THE COURT OF MS. PRIYA JANGHU, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-011884-2017
CC No. 9430/2017
Sanjeev Mishra
s/o late Sh. Brij Nandun Mishra
r/o Flat no. 704, Plot no. 8C
Arjun Apartment,Sector -7,
Dwarka, Delhi-110075 ............ Complainant
Versus
Lalit Kumar
S/o Late Sh. Ashok Singh
R/o H. No. 159, Village Naiwan
PS Kishori, District- Mainpuri, UP
Also At:-
C/o Amit Kumar
s/o Late Sh. Ashok Singh
R/o H. No. 201, Gali no.5A,
Gupta Enclave Vikas Nagar
Mohan Garden Delhi-110059 ............. Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty Digitally
signed by
PRIYA
PRIYA JANGHU
JANGHU Date:
2022.07.27
16:54:43
+0530
Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 1 of 20
(3) Date of institution of case : 15.05.2017
(4) Date of conclusion of arguments: 27.06.2022
(5) Date of Final Order :. 27.07.2022
(6) Final Order : Convicted
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he and the accused were having friendly relationship and were well known to each other. It is alleged that in the month of March 2015, on request of the accused, the complainant advanced a friendly loan of Rs.10,00,000/- to the accused for a period of one month and a loan agreement dated 02.04.2015 was also executed between the parties. Thereafter, in the month of May 2015, on request of accused, complainant again advanced a friendly loan of Rs. 3,00,000/- to the accused for a period of two months against receipt dated 19.05.2015.
3. It is further alleged that the accused in discharge of his loan liability issued one cheque bearing No. 000011 dated 06.01.2017 amounting to Rs.13,00,000/- drawn on Bank Of India, Saman Branch, U.P to complainant towards repayment of loan, with an assurance of its encashment. The complainant presented the cheque in his account maintained at Bank of Baroda (45), Navada Branch, Delhi- 110059, Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 2 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:54:55 +0530 which was returned with the remarks "Funds Insufficient" vide bank return memo dated 07.03.2017. Thereafter, complainant served a legal notice dated 29.02.2017 upon the accused through his counsel demanding the said amount . Despite service of aforesaid notice, no money was repaid by the accused Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
4. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record, loan agreement dated 02.04.2015 as Ex. CW-1/1; receipt dated 19.05.2015 as Ex. CW- 1/2; original cheque in question bearing No. 000011 dated 06.01.2017 amounting to Rs.13,00,000/- drawn on Bank Of India, Saman Branch, U.P as Ex. CW-1/3; cheque returning memo dated 07.03.2017 as Ex. CW-1/4; legal demand notice dated 29.02.2017 as Ex. CW-1/5; postal receipts as Ex. CW-1/6 & Ex. CW-1/7 and internet tracking report of delivery as Ex. CW-1/8 & Ex. CW-1/9.
5. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 13.12.2018 to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheque and denied filling of the remaining details on cheque in question. He also denied availing of loan of Rs. 13,00,000/-. However, he admitted that he has availed loan of Rs. 30,000/- only from the complainant. He further stated that at the time of availing of said loan of Rs. 30,000/-, he gave three blank signed cheques including the cheque in question as security to the complainant. The complainant also obtained his signatures on certain blank papers. The said loan was to be repaid in 5-7 months. He has deposited Rs. 30,000/- into account of complainant in January 2016. However, his three security cheques including the cheque in question were not returned to him and the complainant has misused the cheque in question.
Digitally
signed by
PRIYA
Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 3 of 20 PRIYA JANGHU
JANGHU Date:
2022.07.27
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6. Complainant examined himself as CW-1 and he was cross examined by the accused. No other witness was produced by the complainant and complainant closed his evidence by giving a separate statement to this effect. Thereafter, statement of accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice under Section 251 Cr.P.C. Accused denied that he had taken loan of Rs.10,00,000/- on 02.04.2015 and loan of Rs. 3,00,000/- on 19.05.2015 from the complainant. However, he admitted that he has taken a loan of Rs. 30,000/- only from the complainant on 05.05.2015. He further admitted his signature on document Ex. CW-1/1 at point A on all the pages. However, he denied the thumb impression next to his signatures at point A. Accused also denied the signatures at point B on document Ex. CW-1/2 . He also denied the thumb impressions on Ex. CW-1/2. He also stated that complainant also obtained his signatures on certain blank papers and same are converted into the document Ex. CW-1/1. He admitted his signatures on the cheque and denied filling of the remaining details on cheque in question. He further stated that at the time of availing of said loan of Rs. 30,000/-, he gave three blank signed cheques including the cheque in question as security to the complainant. The complainant also obtained his signatures on certain blank papers. The said loan was to be repaid in 5-7 months. He has deposited Rs. 30,000/- into account of complainant in January 2016. However, his three security cheques including the cheque in question were not returned to him and the complainant has misused the cheque in question. Thereafter, the matter was fixed for defence evidence.
7. Thereafter, accused preferred to lead evidence in his defence and has examined himself as DW-1. He placed on record bank slip for deposit of amount of Rs. 30,000/0 into the account of complainant as Ex. DW-1/A. During the cross- examination of DW-1, ld. Counsel for complainant also placed on record print out Digitally signed by PRIYA JANGHU Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 4 of 20 PRIYA Date:
JANGHU 2022.07.27 16:55:13 +0530 of transcript of whatapp conversation between the complainant and accused from 10.01.2017 to 05.11.2018 as Ex. DW-1/C-1 (running into 17 pages) along with certificate under Section 65 B of Evidence Act as Ex. DW-1/C-2. DW-1 was duly cross-examined by counsel for complainant. Accused did not examine any other witness in his defence and same was close vide his separate statement.
8. Thereafter, matter was listed for final arguments. At the stage of final arguments an application under Section 45 of Evidence Act filed on behalf of complainant for sending the documents to FSL, on which the accused has denied his signatures, thumb impression and handwriting. Vide order dated 17.01.2020, said application was allowed and the documents were directed to be sent to FSL for examination as to whether signatures at point A on page 3 of loan agreement Ex. CW-1/1,signatures at point A of the receipt forming part of Ex. CW-1/1, signatures at point B on the hand written note Ex. CW-1/2 are of accused or not. It was also directed to examine by the FSL as to whether thumb impression on the loan agreement and receipt Ex. CW-1/1 on all the pages and upon the hand written note Ex. CW-1/2, are of accused or not.The original admitted signatures of accused under the notice under Section 251 Cr. P.C, statement of accused under Section 313 Cr. P.C, his examination as DW-1 and cross-examination dated 01.05.2019 and 07.08.2019, were also directed to be sent to FSL for comparison with the disputed signatures. Specimen signatures of accused, specimen thumb impressions of left and right thumb of accused, 12 in number each, were also taken on three different sheets, identified by counsel for accused and countersigned by my Ld. Predecessor Court. Same were sent to FSL for comparison with disputed signatures and thumb impressions.
9. Final arguments were heard from both the sides. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act Digitally signed by PRIYA Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 5 of 20 PRIYA JANGHU JANGHU Date:
2022.07.27 16:55:19 +0530 have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well in his statement under Section 313 Cr. P.C. He argued that no payment has been made by the accused for the loan availed by him from the complainant. He placed reliance on Exhibit FSL (running into 3 pages) (colly), as per which signatures and thumb impression on Ex. CW-1/1 and Ex.
CW-1/2 were found matching with the specimen signatures of the accused. He has also relied upon whatsapp chats/conversations between the accused and the complainant Ex.DW-1/C-1 (colly) alongwith certificate u/s 65B of Evidence Act, Ex. DW-1/C-2. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut presumption under Section 139 N.I.Act. Therefor, accused be convicted for the offence under Section 138 of the Act.
10. Per contra, ld. Counsel for accused reiterated the submission made by the accused in his plea of defence at the time of framing of the notice under Section 251 Cr.P.C and his statement under Section 313 Cr.P.C. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. It was also argued that the cheque in question alongwith two other cheques was given as security cheque to the complainant and same has been misused by the complainant. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence under Section 138 of Act. The accused has relied on Lokendra Singh vs. Krishankant 2019 (3) DCR 251 M. Cr. C no. 3771/2018; Anand Chatuvedi vs. I. S. Mourya 2016 (3)DCR 233 M. Cr.C 4752-2013 of Hon'ble Madhya Pradesh High Court; C.P Abdul Rasak vs. P Gangadharan 2016 (3) DCR 239 Crl. Rev. Pet. No. 2219 of 2009 of Hon'ble Kerala High Court and Kulvinder Singh vs.Kafeel Ahmed Criminal L. P. No. 478 of 2011 of Hon'ble High Court of Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 6 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:56:45 +0530 Delhi.
11. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
12. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
13. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
Digitally signed by PRIYA Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 7 of 20 PRIYA JANGHU JANGHU Date:
2022.07.27 16:56:53 +0530 "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - 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, of any debt or other liability".
14. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted 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 etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature.
Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
15. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) Digitally signed by PRIYA PRIYA JANGHU Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 8 of 20 JANGHU Date:
2022.07.27 16:55:35 +0530 RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can 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 on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
16. In the present case, the complainant by way of an affidavit led his own evidence testifying the cheques were issued to him in discharge towards liability, after he has advanced loan of Rs.13,00,000/- in cash to the accused. The dishonour of the memo of cheque and legal demand notice were exhibited on record.
17. The principle defence taken by the accused as brought by accused as brought out from his statement under Section 251 Cr.P.C and under Section 313 Cr.P.C and his examination in chief as DW-1, is that he had taken only a loan of Rs. 30,000/- from the complainant on 05.05.2015 and he gave three cheques including the cheque in question as blank signed security cheques at the time of availing the said loan. It is also his defence that he has already repaid the loan of Rs. 30,000/- to the complainant by depositing the amount in his bank account on 13.01.2016. Bank Slip of deposit of Rs. 30,000/- to the account of complainant is Ex. DW-1/A. Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 9 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:00 +0530 It is also his defence that the complainant also obtained his signatures on some blank papers at the time of giving loan and same have been converted into the document Ex. CW-1/1.
18. However, perusal of evidence shows that said version of accused is not supported by any material on record During his cross-examination accused admitted his signatures at point A on the first and second page of loan agreement dated 02.04.2015 Ex. CW-1/1. Accused denied his handwriting and signatures at point point B of Ex. CW-1/2. The only explanation offered by the accused was that his signature was obtained on 3-4 blank papers by complainant which was later on converted into the document. However, such a mere averment is not sufficient to cast doubt on the said document. The accused could not support his version by placing on record any complaint or legal action taken against the complainant for misuse of blank signed papers. There are several discrepancies and inconsistency in the statements made by the accused. The accused in his statement under Section 313 Cr. P.C admitted his signatures at point A of all the pages of document Ex. CW- 1/1. However, in his cross-examination , he denied the signatures on all pages other than except first and second page of loan agreement Ex. CW-1/1. The complainant on the other hand took steps to verify the signatures/thumb impression of accused on Ex.CW1/1 and Ex.CW1/2 and filed an application for sending the documents to FSL for examination as to whether signature at point A on page 3 of loan agreement Ex. CW-1/1, signatures at point A of receipt forming part of loan agreement EX. CW-1/1, signatures at point B on the hand written note Ex. CW-1/2 are of accused or not and also to examine whether the thumb impression on the loan agreement and receipt Ex. CW-1/1 on all the pages and upon the hand written note Ex. CW-1/2 are of accused.
19. The report from FSL was received in sealed envelope and same was opened in presence of the parties Both the parties recorded their separate statements that Digitally signed by PRIYA Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 10 of 20 PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:06 +0530 they do not deny the genuineness or the authenticity of the FSL report. The FSL report being the report of Government Scientific Expert was Ex. FSL (colly) (running into three pages) dated 17.02.2020 and 18.01.2022.
The FSL report recorded the following findings:-
"Exhibits Questioned"
1. Three (03) sheets of loan agreement marked as Ex.CW-1/1 executed on 02.04.2015 between Sh. Lalit Kumar s/o Sh. Ashok Singh R/o H. No. 159, House no. 159, Village Naigwan, Thana Kishori, Distt Mainpuri, U.P and Sh. Sanjeev Mishra s/o Late Sh. B.N. Lal Mishra, r/o Flat No. 704, Plot no. 8C, Arjun Apartment, Sector -7, Dwarka, New Delhi-110075 bearing questioned Finger/thumb impressions marked as QT-4.1, Q-2 and QT-3 respectively.
2. One (01) Sheet of hand written note marked as Ex.CW-1/2 executed on 19.05.2015 by Sh. Lalit Kumar S/o Sh. Ashok Singh R/o House No. 159, Village Naigwan, Thana Kishorei, distt. Mainpuri, U. P bearing Questioned Finger/Thumb impressions marked as QT-4.
3. Two (02) sheets of specimen Left and Right Thumb Impression of Sh. Lalit Kumar. Thumb impressions for comparison are further marked as ST-1 and ST-2 respectively. III QUESTIONNAIRE:-
1. Whether the questioned Thumb/Finger Impressions marked as QT-1 to QT-4 are identical with Specimen Thumb Impressions marked as ST-1 and ST-2 or otherwise?
2. Any other relevant information?
IV RESULT OF EXAMINATION:-
1. Questioned Thumb/Finger Impression marked as QT-1, is smudged and does not disclose sufficient no. of ride characteristics at its relative position. Hence, it is unfit for comparison.
Therefore, no opinion could be furnished on this Thumb/Finger Impression.
2. Questioned Thumb/Finger Impression marked as QT-2, QT-3 and QT-4 are fit for comparison.
3. Questioned Thumb/Finger Impression marked as QT-2, QT-3 and QT-4 are "INTER-SE- IDENTICAL" and further "IDENTICAL" with Specimen Left Thumb Impression marked as ST-1 of Sh. Lalit Kumar.
Digitally
signed by
PRIYA
PRIYA JANGHU
JANGHU Date:
2022.07.27
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EXHIBITS
QUESTIONED- Red enclosed signature marked Q-1 on an Agreement bearing Page No.3 dated 02.04.2015; Q2 on a Receipt dated 02.04.2015 and Q3 on a Handwritten Receipt dated 19.05.2012.
STANDARDS- Red enclosed standard signatures marked S-1 & A1 to A8 of Sh. Lalit Kumar.
LABORATORY EXAMINATION All the documents were carefully and thoroughly examined with the help of scientific instruments available in the laboratory under various lighting conditions and magnifications and I am of the opinion that:-
(I). The standard signatures in the red enclosed portions market S-1 & A1 to A8 are freely written, show natural variations and consistency among themselves. The questioned signatures in the red enclosed portions marked Q1 & Q2 are also freely written, show natural variations and consistency among themselves. On comparison of questioned signatures with the standard signatures, similarities are observed in formation of character and their minute & inconspicuous details such as manner of execution of letter 'L', slightly titled in rightward direction downward staff followed by horizontal stroke; nature & location of dot after execution of letter 'L';formation of letter 'K', downward vertical staff, nature of their two diagonal strokes; formation of character appearing as letter 'C', enclosing the letters 'L.K'. curvature body in anticlockwise direction;
formation of letter 'h', curved upward commencing movement making a loop while forming downward vertical staff, bifurcating movement from the foot of its vertical staff, angularity at its shoulder, curved finishing stroke and manner of joining it with the subsequent letter 'a'; formation of letter 'a', oval body in anticlockwise direction, shape & size of its oval body and manner of joining it with succeeding letters 'h' &'a'; formation of letter 'n', nature of its commencement downward vertical stroke bifurcating movement from the foot of its vertical stroke, angularity at its shoulder and terminal stroke in curved leftward/backward direction; habit of putting underscoring as observed in questioned signatures similarly observed in standard signatures at one or the other places etc. The aforesaid similarities in the writing habits are significant and sfficient and cannot be attributed to accidental coincidence and when considered collectively indicate that the person who wrote the red enclosed signatures stamped and marked S1 & A1 also wrote the re enclosed signatures similarly stamped and marked Q1 & Q2.
Digitally
signed by
PRIYA
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(II) It has been possible to express any pinion on rest of the items on the basis of
materials at hands.
These findings lend credence to and probabilize the defence of complainant that Ex.CW1/1 and Ex.CW1/2 bear signatures/thumb impressions of the accused.
20. The complainant has also relied upon whatsapp chats/conversation between the complainant and accused from 10.01.2017 to 05.11.2018 Ex. DW-1/C-1 (colly) (17 pages) along with certificate under Section 65 B of Evidence Act Ex. DW-1/C-
2. It is important to mention here that throughout the whatsapp chat/conversation which is between the complainant and accused, there is not even a single instance where accused denied his liability rather there is irrevocable admission of accused that he has liability and sought some time for making the payment to complainant, though the nature of liability is not discussed in specific. The only defence taken by accused regarding his whatapp conversation with complainant is that phone of accused was misused by complainant to send the chats to his number. Since the whatsapp chats/conversation between the accused and the complainant does not relate to the specific liability of the accused regarding the alleged loan in question, same cannot be relied upon.
21. Also, the counsel for accused in the cross-examination dated 22.02.2019 asked the question to the complainant that "is it correct that on 02.04.2015, you had advanced loan of only Rs. 10,00,000/- to the accused and three post dated cheques bearing no. 000011, 000012 and 000013 were taken as security for the loan amount. To this the complainant answered.
A. "It is correct"
22. Therefore, the version of accused that he has taken only loan of Rs. 30,000/- from the complainant is devoid of any merit as the counsel for accused himself has accepted that loan of Rs. 10,00,000/- was taken by the accused from the Digitally signed by PRIYA PRIYA JANGHU Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 13 of 20 JANGHU Date:
2022.07.27 16:55:56 +0530 complainant. It was also stated by complainant that the accused has also taken Rs. 30,000/- on one occasion when his mother was not well and he has repaid the same. Bank slip of the same is Ex. CW-1/A. Moreover, the accused could not bring anything on record to show that said payment was made for repayment of loan in question. The accused in his cross-examination stated that he was ready to make more payment to the complainant because he was under continuous threats from the complainant and his assurances that his cheques would be misused. However, these arguments of the accused are bereft of any merit as the complainant has never filed any police complaint or taken any other legal action against the complainant till date for misuse of his cheques.
23. In his cross-examination, regarding the other cheques, it was stated by the complainant that he has given cheques bearing no. 000012 and 000013 to one doctor sahib for availing loan of Rs. 2,50,000/- after taking consent of the accused for the same as he was in need of funds. Moreover, if the same were given without consent of accused , the accused has never filed any complaint for the same. Therefore, the version of the accused regarding the misuse of his cheques cannot be relied upon.
24. Ld. Counsel for the accused also argued that complainant also did not have requisite sources to advance loan to the accused. However, these arguments of ld.counsel for accused are also devoid of any merits as accused has admitted the factum of taking loan of Rs. 30,000/- from the complainant. This also shows that accused has clearly admitted the financial capacity of complainant to advance loan to him. Complainant in his cross examination stated that the sources of funds for present loan was the amount received upon the sale of his house in Mohan Garden Delhi and that he had to purchase a flat in Dwarka and had kept Rs. 10,00,000/- aside for payment of the same. However, the registry of said flat could not be completed and the amount of Rs. 10,00,000/- in cash was lying with him which Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 14 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:28 +0530 was advanced to the accused. It is was further stated that the amount of Rs. 3,00,000/- was advanced to accused out of his own savings. The counsel for the accused did not ask any question in cross-examination as to the details of the house of the complainant which was sold or did not ask for his bank statement. A mere bald suggestion that he did not have any money to advance loan to accused is not sufficient to rebut the statutory presumptions in the absence of any particular question, to evince any reply or explanation from the complainant regarding the sources of funds out of which the present loan was advanced.
25. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
26. Also the cheque in question has been dishonored vide cheque returning memo dated 07.03.2017 for reason "Funds Insufficient " '(Ex. CW-1/4) and not for any other reason. There is no explanation or evidence as to why, if the cheque was given as a blank signed cheque and not returned even after repayment of loan, stop payment instructions were not issued by accused to bank. In light of above, this court is of the view that simple averment of misuse of the cheque is not a credible defence.
27. Further more, nothing could be elicited in cross-examination of complainant to cast doubt on his testimony. It has been argued by Ld. Counsel for accused that Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 15 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:34 +0530 loan given by complainant was not shown in his ITR and same cast doubt on case of complainant. Ld. Counsel for accused also argued that present loan is in violation of Section 269SS of Income Tax Act, 1961, which prohibits cash transaction over the amount of Rs. 20,000/-. It is argued that therefore present transaction is contrary to law and present loan is not recoverable. However this argument of Ld. Counsel for accused is also bereft of any merit as provisions of Section 269SS of Income Tax Act, 1961, prohibit taking or accepting loan over amount of Rs. 20,000/- in cash and do not make the amount of loan given in cash, unrecoverable in proceedings under Section 138 of the Act. Reliance in this regard can be placed upon the decision of Hon'ble High Court of Delhi in Lekh Raj Sharma v. Yashpal Sharma, (Crl.L.P. 567/2014),D.O.D. 30.06.2015, wherein it was observed:
".......21. The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and income tax return, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous.In this regard, reference may be placed on the decisions of the Bombay High Court in:
........
ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed:
"The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act."Digitally signed by PRIYA JANGHU
Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 16 of 20 PRIYA Date:
JANGHU 2022.07.27 16:56:29 +0530 Therefore, though non-compliance of provisions of Section 269SS of Income Tax Act,1961, may invite penal action under the said Act, however the same cannot operate to undue advantage on borrower who can refuse to pay the loan amount taken by him on this ground.
28. Ld. Counsel for the accused has also argued that the cheque in question was given as security cheque to the complainant by the accused. However, this arguments of Ld. Counsel for accused is also bereft of any merit as accused has not denied taking of loan from the complainant and handing over the cheque to him, though as security cheque. In view of the same, onus was on the accused to show the repayment of the loan and misuse of cheque. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
29. Even otherwise, if for the sake of argument, it is considered that the accused gave a blank signed cheque to the complainant, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that all or some of the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 17 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:40 +0530 Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
30. The accused has denied that legal demand notice under section 138 of the Act was received by him. However, it is worth noting that the address of the accused as mentioned in legal demand notice is the same address as that in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C, testimony as DW-1 and his bail bonds i.e. H. No. 159, village Naiwan, District Mainpuri, UP. Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused Digitally signed by PRIYA PRIYA JANGHU Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 18 of 20 JANGHU Date:
2022.07.27 16:56:04 +0530 has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
31. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
32. The accused in the present case has failed to lead any evidence at all to aid in the discharge of his onus. He has not been able to rebut the presumption that is raised in favour of complainant with respect to the existence of legally enforceable debt or liability .
33. In view of the forgoing discussion, the accused has miserably failed in probablizing his defence, even on the scale of preponderance of probabilities. In view of the above, I have no hesitation in holding that the defence as advanced by accused is a sham defence and nothing but a cock and bull story to escape from the liability arising from cheques in question. Therefore, in my opinion, the accused Digitally signed by Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 19 of 20 PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:57:47 +0530 has not succeeded in rebutting the presumption of legal liability even on the scale of preponderance of probabilities.
34. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
35. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
36. Let the convict be heard on quantum of sentence.
Digitally signed by
37. Copy of Judgment be supplied to the convict free of cost. PRIYA PRIYA JANGHU JANGHU Date:
2022.07.27 16:56:19 +0530 ANNOUNCED IN THE OPEN COURT (PRIYA JANGHU) TODAY i.e. 27.07.2022 METROPOLITAN MAGISTRATE DWARKA COURTS/ DELHI Sanjeev Mishra vs. Lalit Kumar CC No. 9430/2017 Page no. 20 of 20