Delhi District Court
Complainant vs . on 29 March, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East),
KARKARDOOMA COURTS, DELHI.
CC No. : 641/1/10 (642/1/10, 643/1/10, 644/1/10 and 645/1/10)
PS : Preet Vihar
Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0243762010 of CC No. 641/1/10
Smt. Bala
W/o Sh. Sumari Lal R/o H. No. 164/A, Chnader Vihar, Mandawali
Fazalpur, Delhi92.
.............. Complainant
Vs.
Sh. Rohtas Kumar
S/o Late Sh. Phool Singh R/o G40, Gali No. 7, Pappu Colony, Near
Bhopura & DLF, Distt. Ghaziabad, U.P.
............. Accused
Date of Institution : 30.08.2010
Plea of accused : Pleaded not guilty
Date of pronouncement : 22.03.2012
Final Order : Convicted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.The Complainant's case in brief is that the complainant being the real sister of accused gave him a loan of Rs.2,55,000/ in the month of February, 2010 (Loan of Rs. 1 lakh was taken by complainant and Rs.1,55,000/ was arranged by complainant from her husband and son). That the accused for the repayment of the said loan issued five cheuqes bearing No. 563075 dated 15.06.10 of Rs.50,000/, CC No. 641/1/10 Page No.: 1 / 18 cheque bearing no. 563074 dated 10.06.10 of Rs.50,000/, cheque bearing no. 563076 dated 20.06.10 of Rs.50,000/, cheque bearing No. 563077 dated 26.06.10 of Rs.50,000/ and cheque bearing No. 536078 dated 05.07.10 of Rs.55,000/ all drawn on Punjab National Bank, Prabhat Kiran, Rajender Place, New Delhi. The said cheques upon presentation were dishonoured for reason 'Insufficient Funds' and despite service of Legal Notice with respect to dishonour of said cheques upon the accused no payment was made by accused during the statutory period because of which five complaint cases with respect to the aforesaid five cheques were filed on 26.08.2010. All the said five complaint cases were clubbed together on 03.06.11 as they were arising out of the same transaction.
2. Complainant led presummoning evidence and thereafter, accused was summoned u/s 138 N.I. Act vide order dated 30.10.2010.
3. Upon appearance of the accused, copies were supplied to the accused free of cost. Notice was framed against the accused u/s 138 N.I. Act on 03.06.2011. The accused took the defence that he had already paid the entire loan/ cheque amount to the complainant and that the five cheques in question were issued by him to the complainant as security which the complainant did not return to the accused despite repayment, rather, she presented them and filed the present case against the accused.
4. Complainant in post summoning evidence relied upon her affidavit dated 20.09.10 already tendered in presummoning evidence, and she also CC No. 641/1/10 Page No.: 2 / 18 examined her husband Sumari Lal as CW2 and her son Rajesh Kumar as CW3 (after moving an application u/s 311 Cr.P.C which was allowed on 06.02.12).
5. Before proceeding further I would like to mention certain facts which are not disputed and admitted by the accused in reply to notice, statement u/s 313 Cr.P.C and in his testimony as DW1, which are as under:
(i) That loan of Rs.2,55,000/ was taken by accused from complainant, (though year of loan is disputed as the complainant states that loan was given in 2010 whereas accused states that he had taken the loan in June, 2006).
(ii)That cheques pertain to account of accused and were issued by him to the complainant, (though accused stated that the same were issued as security for loan and despite repayment of loan, the same were not returned by the complainant to accused).
(iii)That legal notice as regards dishonour of cheques were received by accused (accused also submitted that upon receiving legal notice, he immediately went to complainant and asked her not to represent the cheques again but complainant refused to accept the request of accused and he also paid Rs.80,000/ in December, 2010 after receiving the legal notice).
6. The questions before the court for the disposal of the complaint are :
(i) Whether the cheques in question were given by the accused to the complainant in discharge of legally enforceable debt? Disputed. CC No. 641/1/10 Page No.: 3 / 18
(ii)Whether the cheques in question were dishonoured on presentation? Not Disputed.
(iii)Whether the reason for dishonor of cheques was insufficiency of funds? Not Disputed.
(iv)Whether the cheques were presented within the period of 6 months from the date when it were issued? Not Disputed.
(v)Whether the complainant made a demand for the payment of amount of money under the cheque by giving a notice in writing to the accused within 15 days of receiving information as regards dishonor of cheque from the bank? Not Disputed.
(vi)Whether the accused failed to make payment of cheques amount within 15 days of receipt of said notice? Disputed.
7. In support of the case the Complainant had tendered her evidence in postsummoning evidence as CW1. In the affidavit the complainant reiterated/ reproduced all the facts which were mentioned in the Complaint itself and she proved the cheques, the returning memos, the legal notice as well as Regd. Postal receipt and other documents. Besides this, complainant also examined CW2 and CW3 to prove the payment of loan of Rs.2,55,000/ to the accused and also to prove that the five cheques were issued by the accused for repayment of the same.
8. On the basis of the said testimony of CW1, complainant sought conviction on the ground that the cheques in question which were dishonoured were given in lieu of repayment of loan of Rs.2,55,000/ which was taken by the CC No. 641/1/10 Page No.: 4 / 18 accused.
9. On the other hand, Ld. Defence Counsel sought acquittal on the ground that accused has already paid the cheque amount to the complainant and that despite payment of cheque amount, the complainant did not return the five cheques to the accused which were issued as security.
10. EVIDENCE PRODUCED BY THE COMPLAINANT IN SUPPORT OF THE ALLEGATIOANS :
The complainant in order to prove the allegations, herself appeared in the witness box as CW1 and tendered her affidavit in which she reiterated the allegations made by her in the complaint. The documents produced by the complainant are :
(a) Dishonored cheques bearing No. 563075, 563074, 563076, 563077 and 536078.
(b) Returning Memos qua the said cheques .
(c) Legal Notice dated 12.07.2010.
(d) Receipt of Registered Post.
(e) UPC.
(f) Acknowledgment Card / Returned Envelopes.
11. PRESUMPTION :
The complainant produced the original cheques, return memos, legal notice and postal receipts. She also appeared as witness to support her allegations CC No. 641/1/10 Page No.: 5 / 18 with her oral testimony on oath.
Thus, the complainant produced sufficient material on record for raising the mandatory presumption, which is required to be raised in terms of section 118 (b) and section 139 of the Act, in favour of the holder of the cheque (the complainant), that the same has been issued for discharge of any debt or liability.
At this stage the court would like to refer to judgments of Apex Court, i.e., NEPC Micon Ltd. Vs. Magma Leasing Ltd. 1999 4 SCC 253, MMTC Ltd. Vs. Medchi Chemical and Pharma Pvt. Ltd. AIR 2002 SC 182 AND Rangappa Vs. Mohan AIR 2010 SC 1898.
In the said judgments after detailed discussion, the Apex Court observed that in cases where the cheques are dishonoured by reason of stop payment instruction/ account closed an offence under section 138 could still be made out. It has been held that the presumption under section 139 is attracted in such a case also. That even when the cheque is dishonoured by reason of account closed by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption.
As regards the extent of presumption that is whether the presumption is with respect to debt/ liability or with respect to legally enforceable debt / liability, this issue now stands settled in the light of the judgment titled Rangappa Vs. Mohan AIR 2010 SC 1898 where a three Judges bench of the Apex Court overruled the judgment titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325 and observed in para 14 that "the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable CC No. 641/1/10 Page No.: 6 / 18 debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (Supra) may not be correct. ...............this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested." (emphasis supplied) The judgment titled Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 Supreme Court 3897(1) discusses the scope and ambit of the presumption raised under section 139 N.I. Act in the following words : "The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the dishcarge of any liability. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of low, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact."
CC No. 641/1/10 Page No.: 7 / 18 It is further held that : "The distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of the evidence required to rebut the two. In the case of 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 a 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 under Section 114 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 further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision 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 exist. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
Thus, in the present case also a presumption arises in favour of the complainant and against the accused that the cheques in question were issued in discharge of a legally enforceable debt or liability.
12. ADMITTED FACTS : The facts admitted by the accused have already been stated in para 5 of this judgment.
CC No. 641/1/10 Page No.: 8 / 18
13. DEFENCE OF THE ACCUSED : The accused has admitted that the cheques belong to the accused and that it also bears his signatures. The accused also admitted that the cheques were issued by him to complainant and he has taken the defence that the said cheuqes were issued by him as security for loan of Rs.2,55,000/ taken by him from the complainant in year 2006 and that despite repayment of loan, the cheques were presented by complainant. The accused has not disputed the date, amount or other contents of any of the cheques.
14. In view of the fact that it has been admitted by the accused in his statement u/s 313 Cr.P.C and also in his testimony as DW1 that he had taken loan of Rs.2,55,000/ from the complainant and had also issued the five cheques in question, the only defence that the accused could prove was that he had repaid the loan of Rs.2,55,000/ (which is also the cheque amount) and that the cheques in question were issued by him as security cheques.
15. In complainant evidence, including complainant, three witnesses have been examined i.e, CW1 complainant, CW2 Sumari Lal, husband of complainant and CW3 Rajesh Kumar, son of complainant.
16. All the three witnesses in their testimony deposed with respect to grant of loan of Rs.2,55,000/ by the complainant to accused on 31.03.2010 and they also deposed with respect to the issuance of the five cheques by the accused in favour of complainant for repayment of loan. Further, the witnesses also CC No. 641/1/10 Page No.: 9 / 18 disclosed the source of income from which loan of Rs.2,55,000/ was granted which is as under :
1. CW1/ complainant took loan of Rs.1 lakh from Janta Cooperative bank Ltd.
2. CW2/ Husband of complainant had given Rs.1 lakh to complainant, out of loan taken by him from Delhi Cooperative Urban T & C Society Ltd.
3. CW3/ son of complainant had given Rs.55,000/ to the complainant, out of loan taken by him from Delhi Cooperative Urban T & C Society Ltd.
Thus, the testimony of the three complainant witnesses further fortified the presumption u/s 139 N.I. Act as regards the legal liability behind the cheques in question.
17. All the three witnesses were crossexamined at length by Ld. counsel for the accused in order to prove the defence story, but, nothing came on record to show that the loan amount was repaid by the accused to complainant and that the cheques in question were issued as security cheques.
18. It is worth noting that in the entire cross of complainant there is no suggestion that the cheques were given by accused to her as security cheuqes. The emphasis of the entire crossexamination has been to prove that there was one Lucky, who was involved in this transaction and that the repayment of loan was made by accused to complainant in presence of this witness who also used to CC No. 641/1/10 Page No.: 10 / 18 maintain a diary in this respect. However, this witness was never examined by the accused and no deposition as regards this person named Lucky was made by accused in his testimony as DW1.
19. Further, in cross of complainant, she produced a document Ex. PW 1/D1 to show that the accused had sought time to return the loan amount. No question as regards this document was asked in the cross examination by the Ld. counsel for accused, thereby, indirectly amounting to admission of this document, which strengthen the claim of the complainant.
20. As far as the cross of CW2 and CW3 is concerned even in their cross examination, nothing came out to show that the accused had repaid the loan amount of Rs.2,55,000/ to the complainant.
21. It is interesting to note that the accused is himself an employee of Punjab National Bank and he could have easily repaid the loan by cheque from his salary account or other account, but not even a single peny is alleged to have been returned by the accused to complainant through cheque/ draft/ bank transfer or such means. The entire loan amount is alleged to have been returned in cash in various installment, and, while the complainant successfully disclosed and proved the source behind the grant of loan of Rs.2,55,000/, accused failed to disclose the source of income from which he returned the loan amount.
22. Thus, though the accused admitted that he had taken the loan of CC No. 641/1/10 Page No.: 11 / 18 Rs.2,55,000/ from the complainant, he failed to prove that he had repaid the same to complainant and that the five cheques in question were issued as security cheques for following reasons :
(1)The accused failed to examine Lucky, in defence evidence, though as per the defence taken by accused both at stage of notice and statement u/s 313 Cr.P.C as well as during cross of complainant witnesses, the transaction took place in the presence of this witness (Lucky) and the loan was also repaid in presence of this witness.
(2)The accused failed to show the source of income from which he repaid the loan amount of Rs.2,55,000/ to complainant. (3)The accused indirectly admitted the document Ex. PW1/D1 wherein he admitted that he was under liability to pay loan, as no crossexamination was done with respect to the said letter and no suggestion was put forth that the said document was forged. Neither, the said document was explained by accused in his testimony as DW1.
(4)Moreover as DW1, accused deposed that he made the last payment of Rs.80,000/ in cash to complainant in December 2010, which is after he had received the legal notice with respect to the present cases. In his statement u/s 313 Cr.P.C accused stated that after receiving legal notice he immediately met the complainant and asked her not to represent the cheques but she refused to accept his request, which, creates CC No. 641/1/10 Page No.: 12 / 18 a doubt in the mind of the court as to why would a person after receiving legal notice would make payment to complainant without obtaining receipt.
(5)The accused has not filed any receipt on record to show that he repaid the entire loan amount to complainant, which creates a doubt in mind of court as regards his claim of repayment.
(6)Still further, the court is not able to understand as to why would the accused keep on making payments and not ask for return of his security cheques (as alleged) or for receipt, specially when there were five cheques and not one cheque and the accused could have requested the complainant to return few cheques depending on the amount of loan repaid.
Rather, there is no averment by accused in his testimony that he even requested the complainant to return security cheques as and when he made part payment of loan amount.
(7)The court is also not able to understand that as to why would accused, who is himself a bank employee, issue five cheques, duly filled with amount, to complainant as security when a single cheque would have sufficed as security, if it was actually given as security and not as a mode for repayment. (8)Moreover, though the accused on receiving legal notice went to complainant and prayed to her not to represent the cheques and the complainant refused his request, no complaint as CC No. 641/1/10 Page No.: 13 / 18 regards misuse of cheques in question was made by accused to any authority.
23. In view of the above discussions and cited judgments, it is clear that the accused has not been able to prove the defence taken by him and therefore failed to rebut the presumption u/s 139 N.I. Act. Accordingly, all the necessary ingredients to make out the offence u/s 138 N.I. Act stands proved and accused Rohtas Kumar is convicted for the offence u/s 138 N.I. Act.
Be heard separately on point of sentence on 29.03.2012. ANNOUNCED ON 22.03.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 22.03.2012 Certified that this judgment contains 18 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 22.03.2012 CC No. 641/1/10 Page No.: 14 / 18 IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI.
CC No. : 641/1/10 (642/1/10, 643/1/10, 644/1/10 and 645/1/10) PS : Preet Vihar Offence complained of : 138 N.I. Act
Unique Case ID No. : 02402R0243762010 of CC No. 641/1/10 Smt. Bala W/o Sh. Sumari Lal R/o H. No. 164/A, Chnader Vihar, Mandawali Fazalpur, Delhi92.
.............. Complainant Vs. Sh. Rohtas Kumar S/o Late Sh. Phool Singh R/o G40, Gali No. 7, Pappu Colony, Near Bhopura & DLF, Distt. Ghaziabad, U.P. .................... Accused ORDER ON SENTENCE Accused Rohtas Kumar was convicted for offence under section 138 of the Negotiable Instruments Act on 22.03.2012.
Arguments on sentence were heard at length on behalf of both the parties.
Punishment prescribed by Law: As per section 138 of the Negotiable Instruments Act, the punishment prescribed is imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or both. CC No. 641/1/10 Page No.: 15 / 18
The cheque amount (of all five cheques) in the present case is Rs.2,55,000/ but as the power of this court to impose fine is regulated by section 29 of the Code of Criminal Procedure, therefore, the maximum fine that this court can impose upon the accused is Rs.10,000/ only.
This view has been consistently taken by Honourable Supreme Court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510 and Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369.
However, as far as compensation is concerned, in the light of section 357 (3) and judgment titled Pankajbhai Nagjibhai Patel Vs. State of Gujarat, 2001 SCC (Cri) 369, there is no limitation on the powers of this court to award compensation to the complainant.
Arguments : The complainant has submitted that though the cheques were payable in 2010 and two years have passed since then, therefore, the complainant be compensated with atleast double the cheque amount and the Ld. Counsel for complainant has also strongly prayed for imprisonment of the accused in the light of the Objects and Reasons of the Amendment Act 55 of 2002 of the Negotiable Instruments Act, 1881.
Ld. Counsel for the accused, on the other hand, submitted that the accused has already made payment of the cheque amount and that accused may not be sentenced to imprisonment as he is Government Employee. Considerations: At this stage of order on sentence, the court is well aware of the fact that protection of society and stamping out criminal proclivity must be the object of CC No. 641/1/10 Page No.: 16 / 18 law which must be achieved by imposing an appropriate sentence and that it is the duty of this court as that of any other court, to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment is a goal respected in principle.
Thus, the court at this stage is required to give consideration to the facts and circumstance of this case for deciding the just and appropriate sentence to be awarded for offence under section 138 of N.I. Act, and also considered the aggravating and mitigating facts and circumstances in which a crime has been committed as the same are to be delicately balanced on the basis of relevant circumstances in dispassionate manner by this court. Order on Sentence: As the accused has been convicted for offence under section 138 of N.I. Act, therefore, keeping in mind that the accused is first time offender, the accused is sentenced to undergo simple imprisonment for a period of six months. Order as regards compensation: It is clear from the record that the cheques in question were payable in 2010 i.e., two years ago and since then no payment has been made till date, thereby causing loss of use of money as well as interest to the complainant and in the opinion of the court, it would be justified, if the complainant is compensated with 1.5 times the cheque amount and litigation charges i.e., total Rs. 4 Lakhs. Accordingly, the accused is sentenced to pay compensation of Rs.4 lakhs to the CC No. 641/1/10 Page No.: 17 / 18 complainant. The compensation is to be paid within one month from today.
In the light of the judgment titled Vijayan Vs. Sadanandan Kumar, 2009 (6) SCC 652, in case of default of payment of compensation, accused shall undergo simple imprisonment for a period of six months.
It is, however, made clear that undergoing sentence in default of payment of compensation shall not absolve the accused of his liability to pay compensation as the same shall in such case be recoverable under section 431 of Cr.P.C.
ANNOUNCED ON 29.03.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/KKD/ 29.03.2012 CC No. 641/1/10 Page No.: 18 / 18