Delhi District Court
Shabbir Ahmad vs . on 10 December, 2007
IN THE COURT OF SH VIKAS DHULL MM DELHI
Shabbir Ahmad
Vs.
Anil Sharma
a) Complaint case no. : 2707
b) Date of the commission of
the offence : 23/11/04
c) Name of the complainant : Sh. Shabbir Ahmed
S/o Md. Salim
R/o F-191/U F-3
Dilshad Colony, Delhi
d) Name of the accused, and his Sh. Anil Sharma
parentage and residence : S/o (Not known)
R/o B-233, Ram Nagar
Behind Yashoda Hospital,
Ghaziabad, U.P.
e) Offence complained
of or proved : U/s 138 of the Negotiable
Instruments Act 1881.
f) Plea of the accused : Pleaded not guilty.Examined U/s 313 Cr.P.C.
and accused submitted that cheques were
given as security for the consideration of
sale of flat but since flats were not sold by
complainant, cheques were not encashed.
(g) Date of Institution : 27/11/04
(h) The date on which : 20/11/07
judgment was reserved
(i) The final order : Convicted
(j) The date of such order : 10/12/07
JUDGME NT
1.The prosecution story in brief is that the accused was working/dealing with the complainant in the business of construction of the flat over the plots for the last more than 1 year and step by step he became able to develop faith upon the complainant. Due to said intimacy the accused induced the complainant to spend the money to build-up flats over plot no.A-11, at DLF Dilshad Ex.-II, Ghaziabad, U.P. It is also alleged that the complainant spend money at the tune of Rs. 2.0 Lacs and spend his time to supervise and to get completion of the said flats. It is also alleged that after the settlement of account an amount of Rs.
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63800/- fallen into the share of complainant plus Rs. 2,00,000/- spend by the complainant on the aforesaid construction. It is also alleged that the in lieu of payment of share amount the accused issued 03 different post dated cheques of of Rs. 100000, Rs. 100000/- and for Rs. 63800/- bearing no. 833709, 833710 and 833711 respectively. It is also alleged that all the cheques on presentation were dishonoured with the remarks "Fund Insufficient" vide return memos dated 27/10/04, 23/10/04 and 18/10/04. It is also alleged that thereafter the complainant sent a legal notice dated 01/11/04 through regd. Post AD and UPC but despite receipt of the said notice no payment was made by accused. Accordingly, a complaint U/s 138/142 of Negotiable Instrument Act, 1881 (hereinafter referred to as Act) and Section 420 of IPC was filed by complainant on 24/11/04.
2. After considering the material on record my Ld. Predecessor has summoned the accused U/s 138 of the Act.
3. Accused was served and appeared in the court. Thereafter a notice U/s 251 Cr.P.C. was framed against the accused to which accused pleaded not guilty and claim trial.
4. Thereafter the matter was posted for Prosecution Evidence and the Prosecution has examined three witnesses.
5. CW1 Sh. C S Gautam, Sr. Asstt. SBI has proved on record cheque return memo dated 23/10/04 Ex.CW1/B1 and memo dated 18/10/04 Ex.CW1/C1 and memo dated 27/10/05 Ex.CW1/A1.
6. In his cross-examination CW1 has deposed that he has no personal knowledge about this case and whatever he has deposed is as per the knowledge derived from records. CW1 admitted that the statement of account brought by him does not contain an entry with regard to debt of charges of three cheques in question. CW1 denied that according to RBI guidelines a saving account has to have minimum balance of Rs. 3000/-. CW1 denied that they are not following the procedures.
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7. CW2 Sh. Mahender Kumar Sharma, Marketing Asstt. Corporation Bank has proved on record certified copy of account statement Ex.CW2/1.
8. In his cross-examination CW1 deposed that he has no personal knowledge about this case and whatever he has deposed is as per the knowledge derived from records.
9. CW3 Sh. Shabbir Ahmed has deposed by way of affidavit that accused was working/dealing with the complainant in the business of construction of the flat over the plots for the last more than 1 year and step by step he became able to develop faith upon the complainant and due to said intimacy the accused induced the complainant to spend the money to build-up flats over plot no.A-11, at DLF Dilshad Ex.-II, Ghaziabad, U.P. CW3 further deposed that the complainant spend money at the tune of Rs. 2.0 Lacs and spend his time to supervise and to get completion of the said flats. CW3 further deposed that that after the settlement of account an amount of Rs. 63800/- fallen into the share of complainant plus Rs. 200000/- spend by the complainant on the aforesaid construction. CW3 further deposed that in lieu of payment of share amount the accused issued 03 different post dated cheques of Rs. 100000, Rs. 100000/- and for Rs. 63800/- bearing no. 833709, 833710 and 833711 respectively which are Ex.CW1/A, Ex.CW1/B and Ex.CW1/C. CW3 further deposed that all the cheques on presentation were dishonoured with the remarks "Fund Insufficient"
vide return memos dated 27/10/04, 23/10/04 and 18/10/04 and the same are Ex.CW1/A-1, Ex.CW1/B-1, Ex.CW1/C-1. It is also alleged that thereafter the complainant sent a legal notice Ex.CW1/1 through regd. Post AD and UPC and the same are Ex.CW1/2 and 3 and the acknowledgment is Ex.CW1/4 but despite receipt of the said notice no payment was made by accused.
10.In his cross-examination CW3 admitted that accused and he are both builders and were good friends earlier. CW3 denied that the cheques were issued against purchase of flat. CW3 further denied that the said cheques were issued against purchase or sale of the flat. CW3 further denied that the registry of the said flat was done on 17/06/04. CW3 admitted that information regarding dishonour of cheque was duly given to the accused. CW3 denied that the accused persons :: 4 ::
met him and asked to execute the sale deed with respect to the aforesaid flat. CW3 further denied that the cheque in question were delivered through Sh. Nazir Ahmad. CW3 admitted that Haroon is a parner in the flat no. B1/16.
11.No other witness has been examined by the Prosecution and accordingly the Prosecution Evidence was closed.
12.The accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record has been put to him. Accused admitted that he was a builder and was running the business under the name and style of Sharda Construction Company. Accused denied that he had induced the complainant to spend money in construction of flat at plot No. A-11, Dilshad Ext., Part-2, Ghaziabad. Accused further denied of issuing a receipt dated 20/12/03. Accused admitted that he was not having sufficient funds in his account in the month of October, 2004. Accused admitted that he received the legal notice dated 01/11/04 Ex.CW1/1. Accused submitted that he would like to lead defence evidence.
13.Thereafter, the matter was posted for Defence Evidence and accused has examined 02 witnesses.
14.DW1 Sh. Nazir Ahmad has deposed on oath that Haroon and Shabbir were the partners in a firm and they took a loan from a bank namely State Bank of Patiala. DW1 further deposed that the complainant requested the accused for some money so that loan of the bank may be paid. DW1 further deposed that accused delivered cheque to him because they were not having faith in each other and these cheques were delivered to the complainant with the assurance that he being the guarantor to get the flat registered in the name of accused and it was his duty to deliver the cheque on demand and then the cheques were delivered to the complainant.
15.In his cross-examination DW1 deposed that accused is not his relative. DW1 further deposed that he is not having any business relations with the accused. . DW1 denied that he has not gone to the house of accused. DW1 admitted that the complainant had repaid the loan taken from State Bank of Patiala before :: 5 ::
issuance of cheque by the accused. DW1 denied that there was no verbal agreement between the accused and the complainant for the purchase of flat. DW1 further denied that he has neither brought the cheques from the complainant and nor handover to the accused. DW1 further denied that he is deposing just to help the accused. DW1 further denied that he is deposing falsely. DW1 admitted that an amount of Rs. 263000/- was due and payable by accused to the complainant.
16.DW2 Md. Haroon has deposed on oath that he is the partner of the complainant. DW2 further deposed that they took a loan for construction of flat from State Bank of Patiala, Defence Colony, New Delhi. DW2 further deposed that out of the total flat 02 flats were disposed of and payment was to be made to the bank. DW2 further deposed that when the flats were not disposed of then they made a verbal agreement with the accused and the deal was decided for Rs. 925000/- for two flats. DW2 further deposed that the amount of the cheque was Rs. 263000/- and these cheques were delivered through Mr. Nazir Ahmad who is a guarantor in the loan account. DW2 further deposed that the cheques were deposited in the bank without his consent and got dishonoured without getting the flats registered in the name of the accused.
17.In his cross-examination DW2 denied that there is no partnership between him and the complainant. DW2 deposed that he has done sale and purchase of property at the personal level by regd. Sale deed and also through agreement. DW2 denied that since there was no agreement, therefore, the same was not in writing. DW2 further denied that he is deposing falsely at the instance of accused. DW2 further denied that the entire statement narrated by him is after thought and the same is at the instance of accused. DW2 further denied that he is deposing falsely.
18.No other witness was examined by defence and Defence Evidence was closed and the matter was posted for arguments.
19.I have heard the counsel for complainant and the counsel for accused and have perused the material on record and the judgments relied upon by both the :: 6 ::
parties. For prosecution U/s 138 of the Act, the following ingredients has to be proved :
(a) That a cheque have been presented in a bank within a period of six (6) month from the date on which it is drawn or within a period of its validity.
(b) The said cheque should have been issued for discharge in whole or in part of debt or other liability.
(c) The cheque should have been returned by the bank unpaid due to reason of insufficient funds or that it exceed the amount arranged to be paid from that account.
(d) The payee or holder in due course makes the demand of payment of the said loan of money by giving a notice in writing to the drawer of cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque.
(e) The drawer of said cheque fails to make the payment to the payee or holder in due course within 15 days of receipt of said notice.
20.In the light of testimony of CW3, admission made by accused U/s 313 Cr.P.C. of having received the legal notice Ex.CW1/1 and not having sufficient funds in his account in the month of October, 2004 and further admission made by him that he has not made the payment of the cheques in question to the complainant and having regard to the fact that original memos Ex.CW1/A1, B1 and C1 which are on record all the ingredients mentioned at S. No. a,c,d and e of the preceding paras stands proved by the prosecution beyond reasonable doubt.
21.From the evidence led on record and after hearing both the parties only one point which requires determination vide this judgment is whether cheques Ex.CW1/A, B and C have been issued by the accused to the complainant in discharge of his liability or not.
22.As far as the case of the prosecution goes it is deposed to by the complainant that cheques Ex.CW1/A to C were issued by the accused after settling the account with the complainant. The accused has admitted U/s 313 Cr.P.C. that :: 7 ::
all the three cheques in question Ex.CW1/A to C have been issued by him to the complainant. The complainant has also filed on record receipt dated 20/09/03 Ex.cW1/B showing the liability against the accused which has not been disputed by the accused in the cross-examination of the complainant. In the light of above discussion the factual basis for raising a presumption U/s 139 of the Act arises in favour of the complainant that cheques Ex.CW1/A to C were issued by the accused to discharge his liability arising from the settlement of the account between him and the complainant. The presumption U/s 139 of the Act is rebuttable and the same can be rebutted by the accused by proving to the contrary.
23.It is a settled principle of law that mere denial of liability is not enough and accused has to lead cogent and clear evidence on record in order to discharge the onus put upon him to rebut the presumption in the light of judgment passed by Hon'ble Supreme Court of India in "Hiten P Dalal Vs. Bratindranath Banerjee 2001(3) C.C. Cases SC 45" wherein it was held in para 22 that "Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram Vs. Custodian Evacue Property, Bombay, AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised U/s 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantraj Balwantraj Desai Vs. State of Maharashtra, AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras Vs. Vaidyanath Iyer(Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court but also in the nature of evidence required to rebut the two. In the case of a 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 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 U/s 14 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 :: 8 ::
further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provisions 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 would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted".
24.Now let us see whether accused has been able to rebut its presumption or not.
25.In the present case the defence of the accused is that the complainant had taken a loan from State Bank of Patiala branch Defence Colony, New Delhi and since he was unable to pay back the loan one Mr. Haroon Partner of the complainant approached him to deposit the loan amount in the bank and further agreed to sell to sell 02 flats which was being constructed by Haroon and the complainant at B1/16, DLF Dilshad Ext.-II, Bhopura, Ghaziabad for a total sum of Rs. 9.25 Lacs. It is also defence of the accused that thereafter, they had paid Rs. 6.50 lacs to the State Bank of Patiala, branch Defence Colony to clear the loan account of the complainant and Rs. 12000/- was paid in cash to Mr. Haroon and the cheques were issued in security which were to be encahsed at the time of execution of Sale-deed of two flats. However, since the complainant did not get the sale deed registered with regard to these two flats, therefore he did not get the cheques honoured.
26.The defence taken up by the accused is not believable as this defence that accused had paid Rs. 6.50 Lacs to the bankers of the complainant to discharge the loan amount taken up by the complainant has been taken for the first time at the stage of statement of accused U/s 313 Cr.P.C.. The present defence was never put to the complainant when he was cross-examined by the accused as no suggestion has been given to the complainant regarding discharge of the loan of the complainant by accused by making payment of Rs. 6.50 lacs. The taking up of the defence by the accused at the stage of statement U/s 313 Cr.P.C. is nothing but an after thought and cannot be believed.
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27.In order to prove its defence the accused had examined two witnesses i.e. DW1 Sh. Nazir Ahmad and DW2 Sh. Md. Haroon.
28.DW1 Sh. Nazir Ahmad has admitted in his cross-examination that it was the complainant who had repaid the loan taken from State Bank of Patiala before issuance of cheques by the accused. In the light of admission made by DW1 who was a defence witness that the loan was repaid by the complainant, the defence of the accused that he had paid Rs. 6.50 Lacs on behalf of the complainant to State Bank of Patiala stands demolished. DW1 has also admitted in his cross-examination that the amount of Rs. 2.63 Lacs equals to the cheque amount was due and payable to the complainant after settlement. By the admission of DW1 the prosecution case gets further corroborated that cheques in question were issued by the accused pursuant to settlement of account in order to discharge his liability. Therefore, the testimony of DW1 is of no help to the accused and on the contrary the testimony of DW1 has supported the case of the prosecution that the cheques in question were issued by the accused in discharge of legal liability.
29.DW2 Md. Haroon has deposed on oath that he being the partner of the complainant had entered into an agreement with the accused to sell two flats belonging to him and complainant for a total sum of Rs. 9.25 Lacs. He has further deposed that for the construction of flats they had taken a loan from State Bank of Patiala and whatever amount was demanded by bank it was deposited by the accused on their behalf. The testimony of DW2 does not inspire confidence as he is not aware as to what amount was demanded by the bank and what amount was paid by the accused on their behalf to State Bank of Patiala. DW2 has nowhere deposed in his examination in chief that amount of Rs. 6.50 Lacs was deposited by the accused on their behalf to the bank. Even otherwise, the deposition made by DW2 that on their behalf accused had deposited amount in their bank in State Bank of Patiala, is not believable as in the reply sent to the legal notice by the accused dated 19/02/05 which is Ex.CW1/D and which has been admitted by the accused to have been issued by him it is mentioned that an amount of Rs. 3.0 Lacs vide receipt dated 01/02/04 and a further amount of Rs. 3.50 Lacs vide again a receipt has been :: 10 ::
given to the complainant. In the light of submissions made by the accused in his legal notice Ex.CW1/D regarding payment of Rs. 6.50 Lacs to the complainant the testimony of DW2 that the amount was paid to the bank is contrary to the defence taken up by the accused in his legal notice Ex.CW1/D. Therefore, the testimony of DW2 does not inspire any confidence and cannot be believed.
30.Another reason for doubting the defence of the accused is the fact that although in the reply Ex.CW1/D accused has mentioned that he had made a payment of Rs. 6.50 Lacs to the complainant vide receipt dated 01/02/04 with regard to the consideration of sale of flats. However, both the receipts showing the receipt of Rs. 6.50 Lacs has not been produced by the accused in this case. The non- production of receipts regarding the payment made by the accused of Rs. 6.50 Lacs also creates a doubt whether any such payment was made by the accused to the complainant with regard to the sale consideration.
31.Another reason for doubting the defence of the accused is that the complainant has filed a receipt Ex.CW1/B dated 20/12/03 deposed to have been prepared by the accused showing the outstanding liability against him. The said receipt has not been challenged by the defence in the cross-examination of CW3. Therefore, the receipt dated 20/12/03 Ex.CW1/B showing the liability of the accused stands admitted by the defence.
32.Another reason for doubting the defence of the accused that he had issued the cheques in question towards the balance consideration regarding the sale of two flats is the contradiction in the statement of accused U/s 313 Cr.P.C. and reply dated 19/02/05 Ex.CW1/D regarding filling up of date in cheques in question. Accused while being examined U/s 313 Cr.P.C. admitted that name of payee, date and amount has been filled by him. However, in reply Ex.CW1/D dated 19/02/05 accused has taken up the defence that cheques were undated and complainant was given liberty to fill up the date after deciding the date of execution of sale-deed. Accused has further submitted in his reply dated 19/02/05 Ex.CW1/D that date in cheques were filled by the complainant. Due to this contradiction, the defence of the accused that cheques were given as security for sale of flats does not inspire confidence and cannot be believed.
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33.Lastly, no agreement of sale with regard to sale of flats was filed on record by the accused. Although it is the defence of the accused that no written agreement was there between the parties but it is not believable that in case a person agrees to buy an immovable property he will not reduce the terms of deal into writing.
34.In the light of above discussion it can be safely said that no deal for the sale of flats was ever entered by the accused and cheques in question were given by the accused to discharge his liability towards the complainant as per receipt Ex.CW1/B dated 20/12/03. Therefore, the accused has failed to rebut the presumption U/s 139 of the Act.
35.All the ingredients of Section 138 of the Act has been proved by the prosecution beyond reasonable doubt.
36.Accordingly, the accused stands convicted U/s 138 of Negotiable Instruments Act.
ANNOUNCED IN THE OPEN COURT TODAY ON 10/12/07 (VIKAS DHULL) METROPOLITAN MAGISTRATE DELHI C.C. No. : 2707/07 18/12/07 ORDER ON SENTENCE Present : Complainant with counsel Sh. A R Siddiqui Convict with counsel Sh. P N Malhotra.
Arguments on the point of sentence heard today and record perused. It is contended by the counsel for complainant that convict had taken the money from the complainant in 2004 and the cheques given by him were dishonoured and complainant has suffered monetary loss in terms of interest and incurring litigation expenses in fighting this case. Accordingly, he has made a prayer for adequate compensation to the complainant. Counsel for complainant also prays that maximum punishment be given to the convict as per law so that in future there can be some deterrant for the other people of the society.
On the other hand the counsel for the convict makes a prayer for taking a lenient view as he submits that this is the first offence of the convict. He further submits that the convict is a responsible member of the society and he has got 03 minor children to take care of and he further submits that the convict has been awarded contract by the Chief Minister, Govt. of Uttar Pardesh which are to be completed by the convict by April, 2008. Accordingly, he has made a prayer for releasing the convict on probation.
Having regard to the galloping rise in the number of cheque bouncing cases in the society, therefore to provide a deterrant to the other potential offenders I am not inclined to extend the benefit of probation to the convict. Accordingly, the prayer of the counsel for convict for grant of probation is declined. In the present case the convict was a good friend of the complainant and he has breached the trust of his friendship resulting in pecuniary loss to the complainant by getting the cheques dishonoured issued by him to discharge the liability towards the complainant. In the facts and circumstances the convict is sentenced to Simple Imprisonment of 06 months and is further directed to pay a compensation of Rs. 4.0 Lacs to the complainant to compensate for the loss of interest for more than 03 years on the principal amount of Rs. 2,63,800/- and to compensate the complainant for litigation expenses incurred by him in prosecuting the case. In case the convict fails to pay the compensation amount the convict shall further undergo a simple imprisonment of 1 ½ months.
At this stage an application U/s 389 Cr.P.C. is filed by the counsel for convict seeking suspension of sentence passed today by this Court. Heard. Since the convict intends to file an appeal in the Appellate Court against the order on sentence passed today and having regard to the fact that the convict has been sentenced only for 06 months S.I, the application is allowed subject to filing a personal bond of Rs. 20000/- with one surety of like amount. Bail bond filed. Same is accepted till 21/01/08 by which time the convict shall obtain a confirmatory bail order from the Appellate Court. Copy of Judgment and order on sentence passed today be given to the convict free of cost. Put up on 21/01/08.
(VIKAS DHULL) METROPOLITAN MAGISTRATE DELHI