Delhi District Court
Cc No.6536/1 Vinay Kumar Yadav vs . Gurinder Pal Singh 1/ 9 on 10 March, 2015
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.6536/1
Vinay Kumar Yadav
S/o Sh. Shiv Nandan Prasad Yadav
R/o M-100-101, Raghubir Nagar
Delhi-27. .....Complainant
Versus
Gurinder Pal Singh
S/o Late Sh. S. Mahender Singh Baweja
R/o B-590, Sudershan Park,
Near Moti Nagar
New Delhi-110015. .........Accused
Date of Institution : 16.09.2013
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 24.02.2015
Date of Decision : 05.03.2015
Final Order : Convicted / Held
guilty.
CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 1/ 9
Judgment
1.This judgment shall dispose of a complaint filed under section 138 of the NI Act on account of dishonor of cheque bearing no. 307008, drawn on Punjab National Bank Kirti Nagar Branch, Delhi. The cheque in question is placed on record as Ex. CW1/2 and the returning memo is Ex. CW1/3.
Factual Matrix:
2. As per the averments in the complaint, the accused entered into an agreement dated 27.2.2013 for repayment of loan amount of 72, 550/-and for this purpose he issued six cheques of various amounts in favour of the complainant. The abovestated agreement is Ex. CW1/1.
The cheque in question is one of the abovestated six cheques. Upon dishonor of the abovestated cheque, demand notice dated 22.8.2013 was issued by the complainant but as the cheque amount was not paid within the statutory period of 15 days, the present complaint was filed within the prescribed limitation period.
3. Per contra, the plea of defence taken by the accused at the time of framing of notice is to the effect that he had given the cheque in question as security for encashment of other cheques which were issued for repayment of the loan as per the agreement arrived at between the parties and these cheques have been encashed. The defence taken by the accused at the time of framing of notice was reiterated by him during his examination under section 313 CrPC. It was specifically stated by him that as per the agreement, he was CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 2/ 9 supposed to repay 60,000/- to the complainant with interest and at that time he gave 5 cheques to the complainant (total amount of 62,500/-). At this time he also stated that he had asked the complainant to return the cheque in question but the complainant did not do so.
4. In other words, the defence of the accused is to the effect that the cheque in question had been given as security.
5. The accused admitted the receipt of legal demand notice. The accused also admitted his signature on the impugned cheque but denied having filled the remaining particulars therein.
Issues for consideration:
6. To prove the commission and successful prosecution of an offence under Section 138 of the NI Act, the following ingredients are required to be proved:
1. Cheque was drawn by the accused on a bank account maintained by him.
2. Cheque was issued in favour of the complainant in discharge of legal liability.
3. Cheque was returned for want of sufficient funds/ arrangement exceeded upon presentation.
4. Cheque was presented during the period of its validity.
5. A demand notice is sent by the complainant to the accused within 30 days of receipt of information from the bank regarding CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 3/ 9 dishonor of the cheque.
6. Notwithstanding the receipt of the demand notice, the accused fails to make payment of the cheque amount within 15 days.
Section 142 of the Act further requires that the complaint should be filed within one month from the date on which the cause of action arises.
7. In view of the plea of defence taken by the accused, only one issue remains to be addressed i.e. the existence of legally enforceable liability qua the cheque in question in favour of the complainant.
Appreciation of evidence:
8. The accused has admitted his signatures on the cheque in question and by virtue of section 139 and section 118 of the NI Act, the burden to prove that the cheque was not given by the accused in discharge of legal liability lies upon him which can be dispelled by creating a reasonable doubt in the story put forth by the complainant. The standard of proof required to be led by the accused to rebut the presumptions of law in favour of the complainant has been enunciated in the pronouncement of the Supreme Court in M.S. Narayana Menon @ Mani vs State Of Kerala & Anr wherein the apex court held that "it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is pre-ponderance of probabilities. Inference of pre-
CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 4/ 9 ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
The evidence led has thus to be appreciated by the legal yardstick enunciated as above.
9. Ex. CW1/1 is the fulcrum of this case. The accused has not impeached this document and it stands admitted with its contents by both the parties. The only contention of the accused is that the cheque in question was given as security. It was pointed out by the Ld. counsel for the accused that the first five cheques total up in the amount of 42,500/- and in conjunction with the sum of Rs.20,000/- paid by the accused on the date on which Ex.CW1/1 was executed, a sum of Rs. 62,500/- (i.e. loan amount of Rs.60,000/- with interest) stands paid to the complainant. Further, the remaining five cheques had already been encashed and it was therefore contended that where a sum of 42,500/- had already been paid, there was no reason for the accused to intentionally avoid payment of the last cheque. On the other hand, it was contended by the Ld. counsel for the complainant that Ex.CW1/1 nowhere mentions that the cheque in question had been given as security and if the cheque had been given for security purpose, this factum would have been mentioned in the agreement.
10. Upon consideration of Ex. CW1/1 and the arguments advanced by the parties, I am inclined to hold against the accused. The recitals of the said compromise deed narrate the facts in which it came to be CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 5/ 9 executed which facts are also admitted between the parties. The last para of the recitals states that "parties have unanimously decided to solve and settle the said matter amicably on the following terms." Para 1 then records that a sum of 20,000/- was paid to the complainant on the same date i.e. the date on which the abovestated compromise deed was executed and further mentions that the remaining amount shall be paid by way of six post dated cheques, details whereof are mentioned overleaf. It is clear from the perusal of Ex. CW1/1 that it nowhere mentions that the cheque in question was given as security. Merely because the remaining five cheques given by the accused in pursuance of the compromise deed were duly executed, it cannot be concluded that the cheque in question which is the last cheque was given as security. The compromise deed Ex. CW1/1 has been entered into admittedly with the volition of both the parties. In fact perusal of the same reflects that where the details of the cheque in question are mentioned in the deed, the signatures of the accused are also present which also goes to show that the addition of the details of the sixth cheque was also made in the presence of and with the consent of the accused. In these circumstances, when the entire settlement was recorded in writing in detail, I fail to understand as to why an important detail regarding the nature of the cheque in question would be omitted by the accused.
11. It was also questioned by the Ld. counsel for the accused as to why the accused would agree to pay 72,550/- (total amount of the six cheques mentioned in the compromise deed) for a loan amount of 60,000/-. To my mind, the answer is simple. By virtue of Ex. CW1/1, the CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 6/ 9 parties compromised their dispute and the settlement of a disputed amount is more often than not, in a larger sum. Further, this is also not a case where the settlement amount is in an unconscionable sum which would induce the court to question its validity. Decision:
12. The corollary of the foregoing discussion is that the accused has not been able to raise a reasonable doubt in the case of the complainant. The case of the complainant therefore stands proved beyond reasonable doubt. Accordingly, the accused is therefore convicted of the offence under section 138 of the NI Act.
Announced today in the (AAKANKSHA VYAS)
open court on 05.03.2015 MM NI ACT (WEST)/DELHI/05.03.2015
CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 7/ 9
IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.6536/1
Vinay Kumar Yadav
S/o Sh. Shiv Nandan Prasad Yadav
R/o M-100-101, Raghubir Nagar
Delhi-27. .....Complainant
Versus
Gurinder Pal Singh
S/o Late Sh. S. Mahender Singh Baweja
R/o B-590, Sudershan Park,
Near Moti Nagar
New Delhi-110015. .........Accused
10.03.2015
Order on Sentence:-
Ld. counsel for the accused has submitted that the family of the accused consists of his mother only who is dependent upon him. It is further submitted that he is sole bread earner of his family. It is further submitted that the accused person is a young person and no other case has been filed against him. It is further submitted that the accused had taken only a sum of Rs.60,000/- from the complainant and the cheque in question had been given as security only. Thus, the accused has prayed for a lenient view.
Counsel for the complainant has not appeared despite repeated calls. As the present hearing is only on the point of sentence, no further opportunity is being given to the complainant for leading arguments.
CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 8/ 9 It is necessary to be mentioned here that the offences u/s 138 of N.I. Act are on high rise and in order to keep the spirit of the legislation, the accused cannot be released on probation as these offences have massive effect on the economic condition of the persons.
I have heard the arguments led by both the counsels on behalf of the parties. In view of the fact that the amount of the cheque in question is small, the accused himself is a young person not having any previous case filed against him, I feel the ends of justice will meet if the accused is sentenced to imprisonment till rising of the court and is ordered to pay the compensation of Rs.14,000/- to the complainant and in case of failure to pay the compensation amount, the accused shall undergo further simple imprisonment of one month. Accordingly, sentence stands passed.
AAKANKSHA VYAS MM NI ACT (WEST),DELHI 10.03.2015 CC No.6536/1 Vinay Kumar Yadav Vs. Gurinder Pal Singh 9/ 9