Delhi District Court
Mahender Pal Singh vs . Sunil Kumar on 26 March, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
MAHENDER PAL SINGH VS. SUNIL KUMAR
CC No. 1038/2018
U/s 138 Negotiable Instruments Act.
JUDGMENT
(1) Serial number of the case : 1038/2018 (2) Name of the complainant : Sh. Mahender Pal Singh . S/o Sh. Rajbir Singh, Prop. M/s Rajbir Auto Agency, Shop No. 107, Mahatma Gandhi Market, Dr. Ambedkar Nagar, New Delhi-62 (3) Name of the accused, : Sunil Kumar parentage & address S/o Sh. Shashi Kumar, R/o 11/4, Dakshinpuri, New Delhi, Prop. M/s S.K. Auto Deals, Dr. Ambedkar Nagar, New Delhi-62 (4) Offence complained of or proved : 138 Negotiable Instruments Act, 1881 (5) Plea of the accused : Pleaded not guilty (6) Final Order : Acquitted (7) Date of Institution : 24.06.2010 (8) Date on which reserved for judgment : 21.03.2018 (9) Date of Judgment : 26.03.2018 Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 1 of 10 2
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that on 15.12.2009, accused had taken friendly loan of Rs. 2,30,000/- by way of cash from the complainant for two months and accused issued two post dated cheques bearing nos. 631668 & 631669 dated 15.02.2010, amounting Rs. 1,00,000/- and 1,30,000/- drawn on Bank of Maharashtra, Press Enclave, New Delhi-110017. Thereafter, as per assurance of accused, complainant deposited the cheques in question on 08.04.2010 for encashment which were dishonoured with the remarks " Insufficient Funds" vide returning memo dated 10.04.2010. Thereafter, complainant issued a legal notices through his counsel dated 08.05.2010 through registered speed post as well as courier, which was duly served upon the accused on 10.05.2010. Despite that, payment of the cheques in question were not made by the accused persons within the stipulated time of 15 days. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW-1/2 and was filed by the complainant Ex. CW-1/1. In his affidavit by way of evidence Ex. CW-1/2 and relied on documents which are cheques in question Ex. CW-1/A and Ex. CW-1/B, receipt Ex. CW-1/C, return memos Ex. CW-1/D and Ex. CW-1/E, office copy of legal notice Ex. CW-1/F, speed post receipts Ex. CW- 1/G and Ex. CW-1/H, under postal certificate Ex. CW-1/I, registered post receipts Ex. CW-1/J and Ex. CW-1/K, tracking reports Ex. CW-1/L and Ex. CW-1/M and courier receipt Ex. CW-1/N and tracking report Ex. CW-1/O. After closure of pre-summoning evidence, since sufficient material Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 2 of 10 3 was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 29.11.2010.
3. Accused appeared in pursuant to summons and notice U/s 251 CrPC was served upon the accused vide order dated 12.05.2011 to which the accused pleaded not guilty and claimed trial. Accused stated that the cheques in question have not been signed by him and he had never issued any cheque to the complainant. There is no liability against him in respect of the present complaint and this is a false and frivolous complaint against him.
4. Thereafter, upon application of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 03.11.2011 and the accused was given an opportunity to cross examine the complainant and his witnesses.
Complainant has examined himself as CW-1 during post summoning evidence. He was duly cross examined by the counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 10.04.2012.
5. Thereafter, the plea of the accused Sunil Kumar u/s 313 r/w 281 Cr.PC was recorded vide order dated 07.05.2014, wherein, all material existing on record including the exhibited documents were put to accused. Accused stated that he has never taken any loan from the complainant and he has never issued any cheque to discharge his legally enforceable liability. Accused stated that no legal demand notice was received by him and he has never taken any loan from the complainant. Accused further stated that he has never issued any Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 3 of 10 4 cheque to discharge his legally. The cheques in question do not belong to him. The account number bearing on cheques is not him and the signatures on cheques are not him and he does not have any account in the bank from where the cheque book was issued. Accused further stated that this is a false case and false case has been filed against him by the complainant to extort illegal money from him.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined Sh. Ajay Mehta, Deputy Manager from Bank of Maharashtra, Branch Press Enclave, Saket New Delhi as DW-1 to prove the account no. 9680 belongs to Sh. Akram Khan and cheque no. 631668 for Rs. 1,00,000/- and No. 631669 for Rs. 1,30,000/- drawn by Sh. Akram Khan. No other defence witness was produced by the accused and thus, DE was closed vide order dated 05.02.2015 and matter was fixed for final arguments.
7. Thereafter, on 02.07.2015 at the stage of final arguments, complainant moved an application for comparison of handwriting of accused on the cheques in question. Thereafter, complainant has withdrawn the said application on 20.04.2017 with liberty to move appropriate application u/s 311 Cr. PC for leading additional evidence.
8. Thereafter, on 30.01.2018 complainant moved an application u/s 311 Cr. PC for examination of handwriting expert to allow the handwriting expert as CW and to lead additional CE for examination of handwriting expert. However, vide order dated 30.01.2018, it was recorded that:
Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 4 of 10 5 "After considering the facts and circumstances of the case, it appears that application U/s 311 Cr. PC moved by the complainant cannot be disposed off without hearing final arguments as the adjudication upon application would be a clear opinion as to the fact of the case. Therefore, let the application be disposed off along with final order."
9. It has been argued on behalf of complainant that accused has taken friendly loan of Rs. 2,30,000/- from the complainant and he had issued the cheques in question to discharge his liability. It has been fut her argued that testimony of accused has remained unrebutted. Now the accused has taken plea that cheques in question have not been issued by him and has made false averments in the application u/s 145 (2) NI Act. It has been further argued that the accused just to cheat the complainant has given the cheques in question with his signature. Now during DE, Sh. Ajay Mehta, Deputy Manager of Bank of Maharashtra was summoned who produced the record to prove that cheques don't belong to account of accused and belongs to account to some other person. Thereafter, the complainant has moved an application u/s 311 Cr. PC and by way of oral arguments, complainant has reiterated and reaffirm the written arguments filed on 04.07.16. It has been further argued by the complainant that complainant should be given opportunity to prove that accused has signed the cheques with intention to cheat the complainant and accused should be convicted for the offence punishable u/s 138 NI Act.
On the other hand, it has been argued on behalf of accused that since beginning the defence of accused that he has not issued cheques in Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 5 of 10 6 question and cheques don't belong to account of accused and accused has proved his defence by summoning the record from bank. Further, to the application u/s 311 Cr. PC filed by the complainant, accused has reiterated the written arguments filed on 23.01.2017 by the accused by way of reply to the written arguments of complainant. It has been argued that accused is liability to be acquitted for the offence punishable u/s 138 NI Act.
10. Arguments advanced by both parties heard. Case file perused meticulously.
11. 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.
12. In the case at hand, receipt of legal notice and issuance of cheques in question are in dispute.
13. Now, this court shall deal with the defences of accused one by one.
13A. FIRST DEFENCE AS TO NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 08.05.2010 Ex.CW1/F. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 6 of 10 7 of demand. The complainant has alleged that the legal notice of demand dated 08.05.2010 ExCW1/F was sent to the accused through registered AD as well as courier on 08.05.2010 on the two addresses one of Dr. Ambedkar Nagar and second Krishna Park and both are correct addresses of the accused and receipts of which are ExCW1/G to Ex. CW-1/N. A2. 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. A3. 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".
Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 7 of 10 8 A4. Therefore, in view of the above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated 08.05.2010 Ex. CW1/F was served on the accused.
13B. SECOND DEFENCE AS TO ISSUANCE OF CHEQUES IN QUESTION B1. It is one of the essential ingredients to constitute the offence punishable u/s 138 NI Act that the cheque must be issued from the account of drawer. In the present case, since beginning the accused has taken the defence that cheques have been issued from the account which does not belong to the accused. During DE accused has summoned the record from bank and Sh. Ajay Mehta, Deputy Manager from Bank of Maharashtra, Branch Press Enclave, Saket, New Delhi has specifically deposed that :
"Today, I have brought the account statement of account No. 9680. As per record, this account belongs to Sh. Akram Khan, certified copy of the account statement is Ex. DW-1/A. As per record, the cheque no. 631668 for Rs. 1,00,000/- and No. 631669 for Rs. 1,30,000/- drawn by Sh. Akram Khan, certified copy of both the cheques are Ex. DW- 1/B and Ex. DW-1/C. The certified copy of the clearing statement is Ex. DW-1/D. XXXXXXX by Sh. Sanjay Kumar, Ld. Counsel for the accused.
It is correct that first part of the signature on original cheques is different and the later part is belongs to account holder Akram Khan. It is correct that I have not checked the details of any Sunil Kumar pertaining t o the cheque leaf on record. As per our record, the cheque was returned for the reason of "insufficient funds" and not for the different signatures. The cheque would have clear had there been sufficient fund in the account of account holder. The original cheque leaf was to be put up with the service branch for the clearance."
Thus, clearly the accused has proved his defence that cheques do not belong to his account. The accused has also relied upon judgment of Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 8 of 10 9 Supreme Court of India in case titled as "Jugesh Sehgal Vs. Shamsher Singh Gogi", Crl. A. No. 1180 of 2009 that :
"In the present case, it is clear from the facts that on receipt of the return memo from the bank, the complainant is stated to have realized that the dishonoured cheque was issued from an account which was not maintained by accused no. 1 the appellant, but by one Shilpa Chaudhary. As a matter of fact and perhaps having gained the said knowledge, on 20th January, 2001, the complainant filed an FIR against all the accused for offences under Sections 420, 467, 468, 471, 406 of IPC. Thus, there is hardly any dispute that the cheque subject matter of the complainant under Section 138, had not been drawn by the appellant on an account maintained by him in the Bank. That being so there is little doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and, consequently,the case against the appellant for having committed an offence under Section 138 cannot be proved. Under the circumstances, continuance of further proceedings in the complaint under Section 138 against the appellant, would be an abuse of the process of the Court."
Admittedly in the present case also the complainant has lodged an FIR u/s 420 IPC against the accused. Therefore, in view of above mentioned dictum as well as discussions, clearly the very first ingredient of section 138 NI Act i.e. the cheque must be drawn from the account maintained by drawer" has not been fulfilled.
14. As far as the application of the complainant u/s 311 Cr. PC for additional CE for examination of handwriting expert is concerned, in view of above mentioned dictum as well as discussions, it is clear that the same is not relevant to the present dispute and at least for the purpose of determination of liability of accused u/s 138 NI Act when admittedly, the cheques do not belong to accused, it would be futile exercise to obtain the opinion of handwriting Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 9 of 10 10 expert qua the signatures of accused on cheques in question as well as the examination of handwriting expert as CW. Therefore, the application is dismissed being devoid of merits.
15. 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 been rebutted by the accused by proving his defence that cheques in question have not been issued from his account. Resultantly, this court finds the accused Sunil Kumar S/o Sh. Shashi Kumar not guilty for the offence punishable U/s 138 N I Act. Hence, he stands acquitted and the application of complainant u/s 311 Cr. PC stands dismissed.
16. Further, accused is directed to furnish bail bond and surety bond in the sum of Rs25,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon him.
17. File be consigned to Record Room after due compliance.
Announced in the open court PRABH Digitally signed
by PRABH
on 26.03 2018 DEEP KAUR
DEEP Date:
2018.03.27
KAUR 16:15:32 +0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 10 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Mahender Pal Singh v. Sunil Kumar CC No. 1038/2018 Page 10 of 10