Delhi District Court
Vinod Aggarwal vs . Jai Kumar Gupta on 26 September, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
VINOD AGGARWAL VS. JAI KUMAR GUPTA
CC No. 476607/16
U/s 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 476607/16
(2) Name of the complainant : Vinod Aggarwal
s/o Sh. O.P. Aggarwal,
R/o LIG 1 Gayatri Enclave,
Near RPS Colony, New Delhi.
(3) Name of the accused, : Jai Kumar Gupta
parentage & address s/o Tej Pal Gupta,
R/o H.No. 11/171-172,
Dakshinpuri,
New Delhi.
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction.
(7) Date of Institution : 22.12.2016
(8) Date on which reserved for
judgment : 17.09.2018
(9) Date of Judgment : 26.09.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that in the month of January 2016, accused has taken friendly loan of Rs. 2,00,000/- by way of cash for period of six months and at the time of receiving the said loan of Rs. 2,00,000/- the accused had issued a cheque bearing no. 772244 dated 10.10.2016 for a sum of Rs. 2,00,000/-, drawn on State Bank of Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 1 of 13 2 India, Branch Deepak Building Nehru Place, New Delhi in favour of the complainant, which on presentation the same was returned unpaid with the remarks "Insufficient Funds" vide returning memo dated 15.10.2016. Thereafter, complaint sent a legal notice dated 12.11.2016 by way of speed post upon the accused which was duly received by the accused and despite that payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/1 was filed by the complainant. In her affidavit of evidence ExCW1/1, the complainant reiterated all the averments made in his complaint and relied on documents are original cheque in question Ex. CW-1/A, its return memo Ex. CW- 1/B, office copy of legal notice Ex. CW-1/C, postal receipt Ex. CW-1/D, returned envelope Ex. CW-1/E & tracking report Ex. CW-1/F. The complaint is Ex. CW-1/G. After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 24.12.2016.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 27.06.2017 to which the accused pleaded not guilty and claimed trial. Accused stated that he had not taken any amount of Rs02 lacs from the complainant. Sh. Anand Kr Gupta had taken Rs50,000/- from the complainant through cheque and he has facilitated the said loan transaction between Sh. Anand Kr Gupta and complainant and Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 2 of 13 3 complainant had taken cheques from him as well as from Sh. Anand Kr Gupta. Complainant had misused the cheques and had filed case against him as well as Sh. Anand Kr Gupta which is pending in this court titled Vinod Aggarwal vs Anand Kr Gupta (s/o Ashok Kr Gupta). Accused stated that he has no legal liability to pay the cheque amount to the complainant.
4. Thereafter, upon oral request of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 26.04.2017 and the accused was given an opportunity to cross examine the complainant and his witnesses.
Complainant was duly cross examined by the counsel Sh. Sanjay Kumar for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 31.08.2017.
5. Thereafter, the plea of the accused was recorded U/s 313 CrPC r/w 281 CrPC on 27.10.2017, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that he had not taken any amount of Rs02 lacs from the complainant. One Anand Kr Gupta loan of Rs50,000/- from the complainant and complainant had taken his cheque as well as cheque of Anand Kr Gupta and thereafter, Anand Kr Gupta made default in payment of some installments because of which complainant presented his cheque as well as cheque of Anand Kr Gupta. Accused further stated that the cheque was given to Anand Kr Gupta and he has facilitated the loan as mentioned above between complainant and Anand Kr Gupta. He has no liability to pay the cheque amount to the complainant. Accused stated that he did not Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 3 of 13 4 receive the legal notice as he has shifted to somewhere else and he received the summons only. Accused further stated that because Anand Kr Gupta had paid some installments but he defaulted in payment of some installments, therefore, complainant misused his cheque as well as cheque of Anand Kr Gupta.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined himself as DW-1 and Sh. Anand Kumar as DW-2 in his defence evidence. Noth the DWs were cross examined by Sh. Sunil Kumar, Ld. Counsel for complainant. No other defence witness was produced by the accused and thus, DE was closed vide order dated 16.07.2018 and matter was fixed for final arguments.
7. Sh. Sunil Kumar, Ld. Counsel for complainant and Sh. Sanjay Kumar, Ld. Counsel for accused have addressed oral arguments. By way of oral arguments, ld. Counsel for complainant has reiterated the facts stated in the complaint and it has been argued on behalf of complainant that during cross examination of complainant, complainant has clarified that case filed by M/s Protect Securities against Sh. Anand Kr. Gupta is different from the present complaint. The testimony of complainant has remained unrebutted. Even during cross examination, accused has not filed any complaint regarding misused of cheque in question by the complainant nor accused had issued stop payment instructions to his banker. Further, ld. Counsel for complainant has read over the cross examination of both DWs and has pointed out that the testimony of both the witnesses is contradictory and DW-2 Anand Kumar had admitted that he got Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 4 of 13 5 amount of Rs. 50,000/- through cheque from the account of company. Admittedly, the present complaint has been filed by the complainant in his personal capacity. Thus, the accused has failed to prove his defence while the complainant has proved his case beyond reasonable doubts. Therefore, accused is liable to be convicted.
On the other hand, by way of oral arguments, Ld. Counsel for accused has reiterated the defence of accused stated during trial and it has been further argued by the Ld counsel for the accused that during cross examination, complainant admitted that no written agreement has been executed qua the cheque in question. It is highly improbable that any ordinary prudent person would give loan of Rs. 02 lacs without written agreement. Further, complainant has not reflected the loan in question in ITR while as per Income Tax Rules, cash transaction for more than Rs. 20,000/- is prohibited. Further, during entire trial, complainant has not disclosed the exact date and month when loan was given nor complainant has filed anything to disclose his financial capacity. The accused has not received the legal notice. The testimony of accused had remained unrebutted and DW-2 Anand Kumar Gupta has duly corroborated the defence of accused. Thus, the complainant has failed to prove his case while accused has proved his defence by producing the receipts. The testimony of accused has remained unrebutted. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted.
Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 5 of 13 6
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, the issuance of the cheque in question and its dishonour are not in dispute. The defence raised by the accused is two fold. Firstly, the non receipt of legal notice dated 12.11.2016 Ex.CW1/C, secondly, the cheque in question was not issued against any consideration.
Now, this Court shall deal with the defences of the accused one by one.
11A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he has never received the legal notice of demand dated 12.11.2016 Ex.CW1/C. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending of the legal notice of demand.
A2. The complainant has deposed that the legal notice of demand dated 12.11.2016 Ex.CW1/C was sent to the accused on the correct address through registered post, the receipt of speed post is Ex.CW1/D which was Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 6 of 13 7 returned unserved with the report addressee left the house. The complainant has alleged that this was the last know address of the accused on which legal notice was sent and therefore, it is to be deemed that legal notice has been served upon the accused.
A3. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A4. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A5. Further, accused has nowhere disputed the factum that the address on which the legal notice was sent, is not correct address of the accused. Rather in the plea recorded u/s 313 Cr. PC r/w 281 Cr.PC, accused Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 7 of 13 8 stated that he had not received the legal notice as he is shifted to somewhere else. This corobrated the plea of complainant that this was the last known address of the accused. Thus, in view of the above discussion, this court holds that the legal notice dated 12.11.2016 Ex.CW1/C was served on the accused.
11B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. As per complainant, accused has taken friendly loan of Rs. 2 lacs from the complainant and cheque in question was issued by the accused to discharge his legal liability and cheque got dishnoured on its presentation, hence, the present complaint.
B2. On the other hand, the defence of the accused is that Mr. Anand Kumar Gupta/ DW-2 had borrowed amount of Rs. 50,000/- from the complainant and accused facilitated the said loan transaction and complainant took cheque from the accused as well as Mr. Anand Kr. Gupta and thereafter, when Mr. Anand Kr. Gupta defaulted in making some payment, complainant misused the cheque of accused as well as cheque of Mr. Anand Kr. Gupta.
B3. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118(a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 8 of 13 9 circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
B4. To prove his defence, accused has cross examined the complainant. The relevant portion of cross examination of complainant is as follows:-
"...............I am director of Protect Security Pvt. Ltd. It is correct that I have filed a complaint case against Anand Kumar for the amount of Rs.1,10,000/- pending before this Court only. It is wrong to suggest that I have filled all the particulars of blank signed cheque of the accused. It is wrong to suggest that accused has given blank signed cheque as security to me at the time of financing Rs.50,000/- to Anand Kumar S/o brother in law of the accused. The accused has not filled the particulars of the cheque in my presence.
......................It is correct that I had not got executed any document from the accused with regard to payment made to the accused. I had given the loan amount to the accused in the month of January 2016, however I do not remember the exact date and time when I hand given the loan to the accused. I have not shown the loan in question in my ITR. (Vol. Because as company secretary I have the knowledge that same is not required).
...................There was no such written agreement between me and the accused for advancement and the time to make the payment was executed. (Vol. It was an oral agreement). ..................I earned Rs.8-10 lacs annually during that period. I can file the ITR if required. It is wrong to suggest that I had not given any loan of RS.2 lacs to the accused. It is wrong to suggest that the accused had given only blank signed cheques as security at the time of getting the loan of Rs.50,000/- by Anand Kumar and I had also taken a blank cheque from him which was also misused by me".
Thus, the testimony of complainant has stood up to cross examination and no major contradiction has appeared during cross examination Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 9 of 13 10 of complainant.
B5. Now the accused has examined himself as DW-1 and Sh. Anand Kr. Gupta as DW-2 and both have deposed that Anand Kr. Gupta/ DW-2 had taken loan of Rs. 50,000/- from the complainant and complainant had taken cheques from Anand Kr. Gupta as well as from the accused and thereafter, upon default of Anand Kr. Gupta, complainant filed a case against Anand Kr. Gupta as well as against the accused herein. Admittedly, the loan was given to Anand Kr. Gupta by way of cheque drawn from the account of M/s Protect Securities Pvt. Ltd. and not from the personal account of complainant. Though, complainant is Director of the said company, however, in the eyes of law company and complainant are two different legal entity and merely because complainant is also a director of M/s Protect Securities Pvt. Ltd., that does not prove ipso facto that complainant had not given any loan to the accused. Further, admittedly DW-2 Anand Kr. Gupta had settled the matter with the complainant M/s Protect Securities Pvt. Ltd. Now during final arguments on 03.08.2018, accused moved an application stating that " in CC No. 464809/16 titled as M/s Protect Securities Pvt. Ltd. Vs. Anand Kumar, the complainant herein as Director /AR of M/s Protect Securities Pvt. Ltd. had filed documents and pro-note in which the signature of accused herein have been obtained". Despite the fact that accused was having knowledge of these documents, accused has not produced these documents during trial for the reason best known to the accused. Further admittedly both accused and DW-2 have not filed any complaint against the complainant regarding the alleged misuse of accused's cheque before any authority nor Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 10 of 13 11 accused has issued stop payment instructions to his banker while as per ordinary prudent person accused should have taken appropriate steps against the complainant, in case complainant has misused the cheque of accused. Thus, the defence of accused seems improbable. While the testimony of complainant has remained unrebutted.
B6. During final arguments, it has also been argued on behalf of the accused that the complainant has not shown the said loan in his ITRs and therefore, the complainant has failed to prove his case. On the other hand, the complainant has relied upon the judgment of : Sheela Sharma vs Mahendra Pal 2016 Law Suit (Del) 4859 wherein it was held that non disclosure of loan advanced by complainant to the accused may attract penal provisions under the Income Tax Act but the same has no consequences on the proceedings of the complaint U/s 138 N I Act.
In view of the dictum of the above mentioned judgment of Hon'ble High Court of Delhi, the plea of the accused is not sustainable and the case of complainant cannot fail only on the ground that complainant has failed to reflect the loan advanced to accused in his ITR.
B7. As far as the defence of the accused regarding issuance of blank signed cheques as security is concerned, it is immaterial. The accused has admitted that he has signed the cheque in question.
No law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 11 of 13 12 question of body writing/other contents except signatures is almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused had no legal liability on the date of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011) that :
"there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him".
Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 12 of 13 13 In the case in hand, it has been admitted by the accused that the cheque in question was issued by him. It is not the case of the accused that his signatures on the cheque in question are forged and fabricated. Thus, once the accused has admitted his signatures on the cheque in question, the fact that other details on the said cheques are not in his own handwriting become immaterial and not of much consequence. Moreover, no reason is coming forward why complainant would fill the amount of Rs. 2 lacs arbitrarily when he had opportunity to fill even the higher amount in the cheque.
12. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused Jai Kumar s/o Sh Tejpal Gupta guilty for the offence punishable U/s 138 N I Act. Hence, he stands convicted.
13. Let the arguments on quantum of sentence be heard on 23.10.2018. Copy of judgment be given dasti to the convict.
PRABH Digitally signed
Announced in the open court DEEP
by PRABH DEEP
KAUR
on 26.09.2018 KAUR
Date: 2018.09.27
15:16:56 +0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 13 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Vinod Aggarwal Vs. Jai Kumar Gupta CC No. 476607/16 Page 13 of 13