Delhi District Court
Manju Kumari vs Naveen Kumar Page No. 1 on 3 May, 2018
IN THE COURT OF SHRI RAVINDER SINGH
METROPOLITAN MAGISTRATE04
DWARKA COURTS, NEW DELHI
Case No. : 4991413/16
SMT MANJU KUMARI
W/O SH. SANJEEV KUMAR
R/O 653/A, GOPAL NAGAR,
(NEAR SRIRAM INTERNATIONAL SCHOOL)
DHANSA ROAD, NAJAFGARH, NEW DELHI
............Complainant
Versus
SH. NAVEEN KUMAR
S/O SH RAMSWAROOP
R/O 248, A BLOCK, GOPAL NAGAR
(NEAR SRIRAM INTERNATIONAL SCHOOL)
DHANSA ROAD, NAJAFGARH, NEW DELHI
..............................Accused
Date of Institution: 30.03.2016
Plea of the accused: Pleaded Not Guilty
Date of Reserving Judgment 01.05.2018
Date of Judgment: 03.05.2018
Sentence or final Order: Convicted
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 of the Negotiable Instruments Act, 1881 (hereinafter said as the NI CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 1 Act) filed by the complainant Manju Kumari against the accused Naveen Kumar.
PROLOGUE (COMPLAINANT'S VERSION)
2. The factual matrix necessary for the disposal of the present case are that accused is well known to the complainant through a common friend Sh. Surender S/o Sh. Mahavir, R/o H. no. 29, Block C, Near Maruti wali gali, Gopal Nagar, Najafgarh, New Delhi - 110043 and the accused is also a good friend and was also having family relations with the said Sh. Surender as well as the complainant.
3. It is further alleged that the accused was in need of funds for purchasing a residential plot and accordingly approached the complainant in the last week of November 2015 for a friendly loan of Rs. 4.50 lacs in the presence of said common friend namely Surender. It is further alleged that the complainant considered the request of the accused and paid a sum of Rs. 4.50 lacs to the accused in cash in the presence of said common friend Surender for a period of 23 months.
4. It is further alleged that to maintain good relation, the accused handed over a filled post dated cheque in question bearing no. 425568 dated 11.02.2016 drawn on Axis Bank, Khan Market Branch amounting to Rs. 4.50 lacs in favour of the complainant and assured the complainant that the said cheque would be honoured on presentation.
5. It is further alleged that the complainant contacted the accused personally for confirming about the funds in his account prior to deposition of the cheque in question for encashment in her account at Canara Bank, CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 2 Najafgarh Branch. It is further alleged that as per the assurances of the accused, the complainant presented the cheque in question for encashment with her bank and the same was dishonored vide cheque returning memo dated 15.02.2016 with the remarks "payment stopped by drawer".
6. It is further alleged that thereafter the complainant informed the accused regarding the dishonour of the cheque in question and the accused assured the complainant to present the cheque again after 3 days and on the assurances of the accused, the complainant again presented the cheque in question for encashment with her banker but the same was again returned unpaid with the reason "payment stopped by drawer"
vide returning memo dated 20.02.2016. It is further alleged that thereafter the complainant tried to contact the accused telephonically and personally but the accused avoided the complainant on one pretext or other.
7. It is further alleged that thereafter the complainant being left with no other alternative sent a legal demand notice dt. 04.03.2016 to the accused through speed post but the accused failed to make the payment of the cheque amount within stipulated time of 15 days despite receipt of the legal demand notice and accordingly the present case has been filed by the complainant for prosecution of the accused Naveen Kumar for the offence under section 138 of the NI Act.
8. After complaint was filed, the complainant examined herself in presummoning evidence and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Ld. Predecessor Court vide order dated 01.04.2016. On appearance of the accused a separate CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 3 notice U/s 251 of the Criminal Procedure Code (herein after said "the Code") dated 26.05.2016 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity was granted to the accused for cross examination of the complainant's witnesses vide order of the court dated 26.05.2016.
COMPLAINANT'S EVIDENCE
9. The complainant got examined herself as CW1 & tendered her evidence by way of affidavit Ex. CW1/H and reiterated the contents of the complainant. The complainant also relied upon the documents Ex. CW1/A to Ex. CW1/G and Ex. CW1/I. a) Original Cheque in question is Ex. CW1/A. b) Original returning memo is Ex. CW1/B and Ex. CW1/C c) Copy of legal notice is Ex. CW1/D d) Original receipts of postal department is Ex. CW1/E e) Reply given by the accused to legal demand notice of the complainant is Ex. CW1/F f) the complaint under disposal is Ex CW1/G g) Speed post tracking report is Ex. CW1/I
10. The complainant / CW1 was cross examined by the Ld. Counsel for the accused. During cross examination, the complainant/CW1 placed on record the CD of the conversation between her and the accused, which is also exhibited as Ex. CW1/H. The complainant also tendered the transcript of the conversation between her and the accused as Ex. CW1/J. No other witness was examined by the complainant and C.E was closed on 24.08.2017 and the matter was listed for recording statement of the accused.
CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 4STATEMENT OF ACCUSED U/S 313 OF THE CODE
11. The statement of the accused Naveen Kumar was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to the accused Naveen Kumar. The accused denied taking any loan of Rs. 4.50 lacs from the complainant and stated that he do not know any person namely Surender. The accused further denied issuing the cheque in question Ex. CW1/A to the complainant and stated that he is suffering from paralysis and is completely bed ridden since the year 2008. The accused further submitted that the cheque in question Ex. CW1/A was lost by him during shifting of the house and he has also lodged a complaint in this regard. The accused further admitted the returning memos Ex. CW1/B and Ex. CW1/C and also stated that he do not have any idea whether he has received any legal demand notice from the complainant or not. In respect of the audio conversation, the accused stated that he has nothing to do with the conversation and same might be with regard to purchases made by his wife from the shop of the complainant. The accused further stated that he is not liable to pay any amount to the complainant. The accused further stated that the complainant has wrongly instituted the present case against him. All together the accused denied all his liability towards the complainant in entirety qua the cheque in question.
DEFENCE EVIDENCE.
12. No evidence whatsoever has been lead by the accused in his defence and after recording separate statement of the accused for CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 5 closing the defence evidence, D.E was closed vide order dated 23.12.2017 and the matter was listed for final arguments.
FINAL ARGUMENTS
13. Final arguments were addressed by both the parties. I have heard Ld. Counsels for both the parties and have perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law.
Section 138 of the Negotiable Instruments Act provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 6 said notice.
Explanation:For the purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
14. It is not disputed by the accused that the cheque in question Ex. CW1/A is drawn on the account maintained by him. Further, the accused has also not disputed his signatures on the cheque in question Ex. CW1/A. Further the presentation, dishonour of the cheque in question and the cheque returning memos Ex. CW1/B and CW1/C have also not been challenged by the accused. Therefore, in light of the evidence on record it stands duly proved that the cheque in question Ex. CW1/A is drawn on the account maintained by the accused and the same also bears his signature. Further it also stands proved that the cheque in question Ex. CW1/A got dishonoured vide cheque returning memos Ex. CW1/B and Ex. CW1/C with the reasons "payment stopped by drawer".
15. In the instant case, perusal of the file reveals that threefold defence has been taken by the accused. Firstly, that he has not been served with the legal demand notice Ex. CW1/D by the complainant. Secondly, that he has not taken any loan of Rs. 4.50 lacs from the complainant in November 2015 and has not issued the cheque in question Ex. CW1/A for discharging any liability of Rs. 4.50 lacs as alleged by the complainant. Thirdly, that except signatures, no other particulars in the cheque in question Ex. CW1/A has been filled by him.
CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 716. Coming to the first line of defence taken by the accused that he has not been served with the legal demand notice Ex. CW1/D by the complainant. In the case in hand, the complainant (CW1) has specifically stated in her evidence affidavit Ex. CW1/H that she has got issued the legal demand notice dated 04.03.2016 Ex. CW1/D to the accused vide speed post. CW1 has also placed the speed post receipt Ex. CW1/E on record. The complainant has also placed on record the speed post tracking report Ex. CW1/I showing the status of the post as delivered on 05.03.2016. Further, the complainant/CW1 has also placed on record the reply Ex. CW1/F given by the accused to the legal demand notice of the complainant.
17. The accused denied the receipt of the legal demand notice in his statement U/s 313 of the Code. Surprisingly, at the time of framing of notice u/s 251 of the Code, the accused specifically admitted to have received the legal demand notice and also admitted to have even replied the same. Throughout the cross examination of CW1 / complainant, not even a single suggestion was put by the counsel for the accused to the complainant / CW1 qua the non receipt of the legal demand notice Ex. CW1/D by the accused. Further, the reply Ex. CW1/F placed on record by the complainant has been challenged by the accused throughout the trial and even suggestion that the reply Ex. CW1/F do not pertains to the accused has been put to the complainant / CW1 during her cross examination. Further, the accused has never challenged the address mentioned in the legal demand notice and the speed post receipt. In fact the summons sent by the court upon the accused at the same very address were received back duly served upon the accused and the same very address has also been furnished by the accused in his bail bonds. Except CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 8 denials the accused has not any lead any evidence to corroborate his stand. Therefore, I have not hesitation in holding that the legal demand notice Ex. CW1/D has been served upon the accused and the same has also been replied by the accused vide his reply Ex. CW1/F.
18. Now coming to the second line of defence taken by the accused that he has not taken any loan of Rs. 4.50 lacs from the complainant in November 2015 and has not issued the cheque in question Ex. CW1/A for discharging any of his liability of Rs. 4.50 lacs as alleged by the complainant.
19. Before I advert to the line of defence taken by the accused it is imperative for me to go through the provisions of Sections 118(a) and 139 of the N.I Act which read as under:
"118. 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;"
"139. 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."
20. It is trite law that once execution of the promissory note is admitted as has happened in the case in hand, the accused specifically CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 9 admitting his signatures on the cheque in question Ex. CW1/A, the presumption under Section 118(a) and Section 139 of the NI Act would arise that it is supported by a consideration. Such a presumption is rebuttable in nature. The accused can prove the nonexistence of a consideration by raising a probable defence. If the accused discharges the initial onus of proof by showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In case, where the accused fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) and Section 139 of the NI Act in his favour.
21. Coming to the case in hand, in the instance case, it is the case of the complainant that she has granted loan of Rs. 4.50 lacs to the accused in month of November 2015 as he required the same for purchasing a residential plot and for returning the said loan amount, the cheque in question - Ex. CW1/A has been issued by the accused, which has been dishonored and has formed the subject matter of the present case.
22. In the present case the accused has not lead any defence evidence. The accused has denied the claim of the complainant at the time of framing of notice u/s 251 of the Code and also in her statement u/s 313 of the Code. At the time of framing of notice, the accused has simplicitor denied taking any loan of Rs 4.50 lacs from the complainant and stated CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 10 that the cheque in question was lost by him and he has lodged the complaint in this regard. At the time of recording of the statement u/s 313 of the Code, the accused reiterated the same defence of the cheque being lost and misusing of the same by the complainant and also about loading a complaint regarding the loss of the cheque. In his reply Ex. CW1/F given by the accused to the legal demand notice of the complainant, the accused again has raised the same defence of the cheque being misplaced / lost from his possession.
23. Surprisingly, during cross examination of CW1 / complainant, a suggestion completely different to the line of defence taken by the accused in the reply Ex. CW1/F, notice under section 251 of the Code and statement under section 313 of the Code has been put to the complainant / CW1. A specific suggestion was given to CW1 / complainant that the cheque in question was handed over by the accused to one Smt Usha Kiran. During the course of arguments and also in the written arguments placed on record by the counsel for the accused, it was contended by the counsel for the accused that the cheque in question Ex CW1/A was issued by the wife of the accused as security for the loan advanced to her brother by one Smt Usha Kiran. Evidently the said suggestion and arguments of the counsel for the accused are in clear contradiction to the defence raised by the accused at the time of framing of notice, at the time of recording of statement of the accused u/s 313 of the Code and also in the reply Ex. CW1/F given by the accused to the legal demand notice of the complainant which itself shakes the stand of the accused. Further, the accused for the reasons best known to him has neither even examined the said Smt Usha Kiran in his defence for proving whether she has given any loan to the brotherinlaw of the accused nor has examined any witness to prove any complaint made by him regarding CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 11 his cheque being lost.
24. Further it is also interesting to see that at the time of recording of his statement u/s 313 of the Code, the accused specifically denied knowing any Surender, who the complainant alleged is the common friend in whose presence the entire loan transaction and the handing over of the cheque in question has taken place. However, in Para 2 of the reply Ex. CW1/F given by the accused to the legal demand notice of the complainant, the accused specifically admitted to have known the said Surender. Interestingly, the said Surender has also not been examined by the accused in his defence. Further the recorded conversation Ex. CW1/H and the transcript Ex. CW1/J placed on record by the complainant has also not been disputed by the accused and the accused at the time of recording of his statement u/s 313 of the Code stated that the said conversation might be with regard to the purchases made by his wife from the shop of the complainant. Meaning thereby that his identity in the conversation placed on record by the complainant is not disputed by the accused. Though the said transcript do not particularly mentions about the transaction involved in the present case but same makes it clear that accused was owing some liability towards the complainant and has assured the complainant to repay the dues.
25. Even keeping the said transcript / conversation aside, the accused has not brought anything on record to rebut the presumption raised against him by the statue u/s 118 (a) and 139 of the N.I Act. During the course of arguments, Ld. Counsel for the accused also argued that nowhere in the complaint, evidence affidavit and legal demand notice, the complainant has stated that the cheque in question Ex. CW1/A has been issued by the accused in discharge of his liability. The said arguments of CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 12 the counsel for the accused are totally misconceived as the contents of the complaint, evidence affidavit and legal demand notice are to be read as a whole and in entirety and not in isolation. In the complaint, evidence affidavit and legal demand notice, it has been specifically mentioned by the complainant that the cheque in question Ex CW1/A was given by the accused with the assurance that the same would be honoured on presentation. Furthermore, in the reply Ex. CW1/F given by the accused to the legal demand notice of the complainant, the accused has stated that he came to know about the loss of the cheque when he received the legal demand notice Ex. CW1/D from the complainant. However, surprisingly, the cheque in question has been dishonored not on account of "funds insufficient" or any other reason but on account of "payment stopped by drawer". Evidently, in this case the payment of the cheque in question Ex. CW1/A has been stopped by the accused. The reason for the same and when the cheque in question was got stopped by the accused has not been put forth by the accused, neither during the cross examination of CW1 nor at the time of recording of the statement u/s 313 of the code. Further, no bank officials have also been examined by the accused for proving the stop payment instructions given by him to his banker.
26. It is trite law that for rebutting the presumptions u/s 118 (a) and 139 of the N.I Act the accused can also rely upon the materials submitted by the complainant which has also been contended by the Ld. Counsel for the accused during arguments. However, totally resting of the case on the non examination of the said common friend - Surender by the complainant, non proving of the withdrawal by the complainant from the bank account of the husband by the complainant would not alone come to aid and rescue of the accused. Throughout the trial, except contradictory CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 13 and flawed defence, explanations and putting suggestions to the complainant/CW1, no evidence whatsoever has been lead by the accused to rebut the presumption raised against him by the statue u/s 118 (a) and section 139 of the N.I Act. It was for the accused to prove as to how and in what manner the signed cheque in question Ex. CW1/A of the accused has come into the possession of the complainant by leading cogent evidence, which the accused has completely failed to do.
27. In V. S. Yadav Vs. Reena 2010 VIII AD (Delhi) 35 it has been held by the Hon'ble Delhi High Court that the statement U/s 313 of the Code is not the evidence of the accused and it cannot be read as a part of evidence as it has to be looked into only as an explanation of incriminating circumstances against the accused and there is no presumption of law that the explanation given by the accused is truthful. It has also been held that mere pleading non guilty at the stage of notice U/s 251 of the Code or explanation given in statement U/s 313 of the Code or suggestions put to the complainant in cross examination that the cheque in question was not for liability does not amount to rebuttal of the presumption U/s 139 of the NI Act especially when the accused did not choose to examine himself in defence.
28. Therefore, I hold that the cheque in question Ex. CW 1/A has been issued by the accused in discharge of his loan liability and for consideration. Now coming to the issue that except signatures no other particulars on the cheque in question Ex. CW1/A has been filled by the accused. During course of arguments Ld counsel for the accused also argued that except the signature no other particulars in the cheque in question Ex. CW1/A has been filled by the accused. Qua the said claim also no evidence whatsoever has been lead by the accused. Further, from CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 14 the aforesaid discussion, it is already proved that the cheque in question has been issued by the accused in discharge of his liability. Further, it is trite to say that once the signature on the cheque in question is admitted by the accused as has happened in the case in hand, the plea of the accused that particulars in the cheque in question has also not been filled by him are of no consequence as there is no rule of banking business that the name of the payee as well as date should be written by the drawer himself, as no law provides that in case of cheque the entire body has to be written by the drawer only. Therefore, the arguments and contentions of the accused in this regard also hold no ground.
29. This court do not find any force in the arguments advanced by the accused that the accused has succeeded in rebutting the presumption under Section 118(a) and section 139 of the NI Act. From the materials brought on record and evidence lead by the complainant it is sufficient to hold that the accused has given the cheque Ex CW1/A in discharge of his legal liability and for consideration. Further it also stands proved that the accused has not made any payment to the complainant within 15 days of the receipt of the legal demand notice.
30. Therefore, In view of the aforesaid discussion, I hereby hold that the complainant has proved and substantiated its allegation against the accused and all the ingredients of Section 138 of NI Act stands proved against the accused. Accordingly, accused Naveen Kumar is hereby convicted for the offence u/s 138 of the NI Act.
CC NO. 4991413/16 MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 15This judgment contains 16 pages. Every Page of this judgment has been signed by me.
Let Parties be heard on quantum of sentence on 21.05.2018 at 2 PM.
Copy of this judgment be given to the convict free of cost.
Announced in the open Court (RAVINDER SINGH)
Dated 03.05.2018 MM04,SOUTH WEST
DWARKA,NEW DELHI
Digitally signed
by RAVINDER
RAVINDER SINGH
SINGH Date:
2018.05.03
15:47:00 +0530
CC NO. 4991413/16
MANJU KUMARI VS NAVEEN KUMAR PAGE NO. 16