Delhi District Court
Mr. Sunil Kumar vs . Mr. Amrit Narain on 17 March, 2010
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC /
GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW
DELHI
Mr. Sunil Kumar Vs. Mr. Amrit Narain
CC NO. 1096/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1096/1/09
(b) The date of the commission of the
offence : 1.10.1997
(c)The name of the complainant : Sunil Kumar
Mehra, Proprietor of
M/S Technoxl Associates
59/11, Kalkaji, New Delhi
(d) The name of the accused person,
and his parentage & residential address :Amrit Narain
Show Room no.2, New
Delhi House,
Barakhamba Road, New
Delhi
also at
M 10, GK Park 1, New
Delhi
(e) The offence complained of or proved : U/S 138 N.I. Act
(f) The plea of the accused : Pleaded not guilty
(g) The Final Order : Convicted
(h) The date of order : 16.2.2010
Facts as borne out from the complaint are as follows:
1. The case set up by Complainant Firm is that it had granted a loan of Rs. 1,30,000/- to the accused and the accuse issued a cheque bearing No. 929345 dated 30.09.1997 drawn on State Bank of Bikaner, which was returned unpaid on presentation by the drawer bank for "Insufficient Fund" vide return memo dated 01.10.1997. The complainant made a demand for the payment of the said amount of money by giving a demand notice to accused through registered A.D. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant has filed this complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. On 08.06.1999 the Court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused, the Court summoned the accused for offence U/s 138 of the Act. On 3.8.99 accused has appeared pursuant to the summons issued by the Court.
3. On 22.10.1999 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the complainant examined Sh. Sudhir Kumar Mehra Attorney as PW 1, Sh. Purshottam Lal is examined as PW 2 and Sh. Dinesh Sharma, Clerk from Khatri Co-operative Bank is examined as PW 3.
5. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation. The accused stated that complainant had demanded sum of Rs. 1,30,000/- from M/s Narain Jewellers, the firm of accused and the accused issued the cheque in question to complainant in his personal capacity, telling the complainant, if he did not get money from Narain Jewelers, complainant could get the cheque encashed, else it would be returned to the accused. Accused further stated that complainant had got Rs. 1,30,000/- from Narain Jewelers and thus was not supposed to put the cheque into Bank and it was to be returned to the accused. The accused further denies having received any legal notice of demand. Accused has examined himself as DW1.
6. I have heard learned counsels for parties and have perused the relevant statutory provisions and evidence alongwith written arguments filed on record. Before looking into the factual issues involved herein, let us consider the provisions of Section 138 of Act. The requirements are :
(1) there is a legally enforceable debt (2) the drawer of the cheque issued the cheque to satisfy the whole or the part of the debt (3) the cheque so issued has been returned due to insufficiency of funds.
7. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to grant the relief. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan; AIR 1999 Supreme Court 3762; it was observed that 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. The burden is on the accused to rebut the aforesaid presumption.
8. In Hiten P. Dalal Vs. Bratindranath Banerjee; AIR 2001 Supreme Court 3897; Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/S 139 of the Negotiable Instruments Act. This section provides that "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." The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
9. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575.
10. From the aforestated settled legal principles, it is crystal clear that Section 118 of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact.
11. In his pursuit to knock down the edifice of the complainant case, defence has argued with vehemence that complainant has failed to prove that there was any transaction between the complainant and the accused in his individual capacity. It is argued that the cheque was issued as a post dated cheque on the understanding that if on or before 30.9.97, M/s Narain Jewelers, HUF (with whom complainant had all transactions) does not make payment of Rs. 1,30,000/- the complainant could present the cheque into bank. It is argued that M/s Narain Jewelers had paid a sum of Rs. 1 lac vide cheque No. 191896 dated 17.9.97 and a sum of Rs. 30,000/- vide cheque No. 199993 dated 26.9.97 and on receipt of the aforesaid payment, the complainant should not have presented the cheque. It is further argued on behalf of accused that no oral or documentary evidence is produced by complainant of having paid any amount to the accused at any point of time.
12. It is further the contention of the defence that a sum of Rs.16.05 lakh was given to M/s Narain Jewelers HUF and not to the accused in his personal capacity. It is further argued that complainant has concealed the material fact of having already received the payments. It is argued that the receipts produced, showing the service of demand notice, do not in any manner co- relate with the alleged legal notice Ex. CW1/E. It is argued that there are contradictions between the complaint, the documents, pre summoning evidence and the post notice evidence adduced by complainant. Another limb of arguments on behalf of defence is that the letter Ex. CW1/D5 , dated 1.7.97 apparently shows that complainant had only demanded a sum of Rs. 7.5 lakhs and it does not refer to any loan /outstanding dues/interest etc. It is argued that complainant has withheld the vital documents, in his possession, which could have supported the version of defence and has not produced the record showing the amount received by it from accused. Ld. counsel has placed reliance upon various judgments of Hon'ble Apex Court.
13. Per contra, it is argued by counsel for complainant that from evidence, complainant has proved that the cheque in question was signed by accused which was dishonoured vide memo and despite service of legal notice, accused did not make payment. It is argued that during cross of CW1, nothing material has come out and the complainant has been able to prove his case. It is argued that accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the provisions of NI Act.
14. Now the question is whether the complainant has proved to the hilt, that whether the amount was legally enforceable debt. I have analysed the deposition of witnesses of complainant. Having considered the testimonies, the issuance of cheque is not in dispute. It is proved that the cheque was issued by accused in partial discharge of liability for the entire loan amount of Rs. 16.05 lacs, which was dishonoured for the reasons of Insufficiency of Funds and accused was served with a notice through registered AD within the stipulated time and despite that no payment has been made by him.
15. It is the submission of Ld. counsel for accused that the cheque was issued to complainant so that if sum of Rs. 130,000/- was not paid by M/s Narain Jawellers before 30.9.97, complainant could present the cheque and could realize the amount from accused. Perusal of para 6 of affidavit of accused, filed during trial shows that as per accused, the cheque was issued against security. The matter is covered squarely by the judgment ICD Ltd Vs. Beena Shabeer 2004 (9) JT 558, where the similar question came up for consideration wherein cheque was issued as security. The court rejected the contention that matter is not covered by Section 138 NI Act. It was held that liability cannot be avoided in the event cheque is returned unpaid. So in the light of the legal position laid down in the Judgment ICD Ltd Vs. Beena Shabeer (supra) the accused cannot avoid the liability only on the ground that the cheque was issued as security and matter thus is not covered by the provisions of Section 138 NI Act. According to counsel for the accused the cheque in question was without consideration since the amount had already stood paid to the complainant vide two cheques of Rs. 1 lac and Rs. 30,000/- dated 17.9.97 and 26.9.97.
16. I have considered the respective submissions of the parties in the light of the judgments relied upon by parties. In the present case, once the accused has taken a definite stand of issuing impugned cheque as security and also of the payment it was for him to rebut the said presumption by reliable and cogent evidence. The suggestion given by the accused to the complainant that cheque was issued as security has been denied by him. No positive evidence has been led by the accused to prove this assertion. The burden was upon accused and accused has failed to discharge that onus. Accused rather has admitted in his cross examination that he does not have any writing to show that it has been given as security. In his own affidavit, placed in evidence, accused has come out with the defence of the payment, already having made. No business accounts or supportive evidence has been adduced in support of this plea of the payment of the amount though it has not been denied when put to him in cross examination that he was maintaining such accounts. There is nothing to show on record that the payments as alleged were in discharge of the liability under the impugned cheque Ex.CW1/B.
17. A close appraisal of the entire defence set up by the accused would show that no supportive evidence has been filed to prove the assertions made by him in his affidavit. The defence has not produced any evidence on record that all the payments as alleged by the accused were in discharge of the liability arising out of the cheque in question. In cross, accused admits that he was maintaining the accounts of his business and is also an Income Tax Assessee. No such accounts or Income Tax record has been produced to support the statement of the payments having made by him to the complainant, in discharge of the liability against the impugned cheque. In Kundan Lal Rallaram Vs. Custodian Evacuee Property Bombay AIR 1961 SC 1316, it was held that if a relevant evidence is withheld the court may draw a presumption to the effect that if the same was produced it might have been unfavourable to the Plaintiff.
18. Accused has also sought to take up a plea of his not having received the Legal Notice. Notice was sent at the correct address through regd. AD. PW2 Shri Purshottam Lal, Asstt. Suptd has produced the delivery Certificate Ex.PW2/1 issued on the basis of receipt and there is no reason to disbelieve his statement. The notice was sent at the correct address of the accused and through registered cover and a presumption U/S 27 General Clauses Act has to be raised against the accused. In C.C. Alavi Haji Vs. Palalpetty Mohd and Anr. 2007 (3) Crime 120 SC, it is held that Section 27 General Clauses Act gives rise to presumption that service of notice has been effected when it is sent to the correct address by Registered Post. The submission that notice U/S 251 Cr.P.C was served upon the accused was defective, has to be rejected as it is not shown how it has caused any prejudice to the accused on that count. In totality of the facts & circumstances of the case, it was the liability of the accused to bring positive evidence, in the wake of disputing the extent of liability by him. The liability was more intense particularly when the accused allegedly had made part payments. It was the sole burden and duty of the accused to prove the extent of liability, if any, when he was defending a presumption, which was supporting the dishonoured cheque. The accused has failed to discharge the burden. Having considered the entire evidence, it is proved that accused had issued the cheque against liability and against legally enforceable debt and the said cheque was dishonoured due to insufficiency of funds.
19. Having gone through the provisions of Section138 of the Act, it is clear that evidence U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues a cheque towards the discharge of a debt or liability as a whole or in part and the cheque is dishonoured by bank on presentation.
20. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/S 138 N.I. Act. Let he be heard on the point of sentence on 24.2.2010 at 3.00 PM.
(Announced in Open Court (MS. RAVINDER BEDI) on 16.2.2010 ) JSCC cum ASCJ cum Guardian Judge (South) IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ / JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE COURTS, NEW DELHI Mr. Sunil Kumar Vs. Mr. Amrit Narain CC NO. 1096/1/09 U/s 138 N.I. Act 17.3.2010 3.00 PM ORDER ON SENTENCE Present: Counsel for complainant alongwith AR of complainant.
Convict present in person with counsel Mr. Anil Airi.
1. I have heard the convict and his counsel on the Point of Sentence.
2. It is argued by ld counsel that convict is an old aged person, suffering from multiple ailments of hypertension, visual impairment as a result of a brain stroke happened in the year 2002. Ld. counsel has placed on record Clinic Summary of the convict. Ld. counsel submits that the convict is constantly attending the investigations and is under continual care of Dr. Vineet Suri (neurosciences). It is argued that the convict has a family to support. It is argued that convict has no criminal antecedents and the learned counsel for the convict has prayed that a lenient view be taken in the present matter as the convict is religiously appearing before the Court since the year 1999. It is submitted that certain amounts were paid at different occasions in the year 1999 to the complainant company.
3. Counsel for the complainant to the contrary argues that since the convict had issued the cheque in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. It is argued that the trial has expanded for over more than 11 years and the complainant had to suffer agony of long trial. Referring to the judgments of superior Courts regarding provisions U/S 431 Cr.P.C and Section 357(3) of Cr.P.C,, Counsel has prayed for compensation considering the conduct of the Convict. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
5. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for six months alongwith fine of Rs. 2,00,000/- (cheque being Rs. 1,30,000/-) as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. Out of this amount, Rs. 1,70,000/- shall be payable to the complainant as compensation and Rs. 2,000/- to the State within a month from today. In default of payment of fine payable to state, convict shall further undergo imprisonment for three months.
6. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
7. At this stage, counsel for convict prays for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
Surety / his son is present.
Since convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs 20,000/- with one surety in the like amount.
Bail bond furnished and accepted till 16.4.2010 at 2.00 PM. Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI)
on 17.3.2010) JSCC cum ASCJ cum Guardian Judge
(South) 17.3.2010