Delhi District Court
Dharmendra Mohan Saxena vs Rakehs Kumar on 2 December, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII
CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS : DELHI.
DHARMENDRA MOHAN SAXENA VS RAKEHS KUMAR
CC/RBT No.: 176, 177 & 178/14
U.I.D. No. : 02402R0825292008
U/s. : 138 N.I. Act
P.S. : SHAHDARA
J U D G M E N T
1 Sl. No. of the case : 176/14
2 Date of institution of the case : 18/11/08
3 Name of the complainant : Dharmendra Mohan Saxena
4. Name of accused, parentage & : Rakesh Kumar s/o Lt. Sh.
Address Vijendra Gupta r/o 1/4105,
Ram Nagar, Mandoli Rd.,
Shahdara Delhi32.
Offence complained of or : U/Sec. 138 N.I Act. 5 proved 6 Plea of the accused : Pleaded not guilty 7 Date reserved for order : 22/11/14 8 Final order : Convicted 9 Date of Judgment : 22/11/14 Facts as borne out from the complaint are as follows :
1. By this judgment I shall dispose off three complaint cases filed by the complainant Dharmendra Mohan Saxena against accused Rakesh Kumar for offence u/sec. 138 N.I Act vide CC No. 176/14, 177/14 and 178/14 of P.S Shahdara.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 1 2
2. By filing present case complainant contended that accused was having good terms with the complainant. In the month of December 2007 and January 2008 accused approached the complainant and expressed his urgent need for sum of Rs.2,00,000/ (Rupees Two Lacs) as a friendly loan from the complainant in pursuance where to complainant advanced the accused a sum of Rs.2,00,000/(Rupees Two Lacs) in cash and as well as by cheque to the accused.
3. It is further alleged by the complainant that while taking above said loan of Rs.2,00,000/ from the complainant, accused assured and promised the complainant that he will return the same within six months positively. However, after few months when complainant approached the accused for demanding back the said amount, the accused issued three post dated cheques bearing No. 329614, 329615 and 329616 dt. 01.09.2008 for amount of Rs.50,000/ and Rs.75,000/ each drawn on Bank of India, G.T Road, Shahdara Delhi in favour of complainant in discharge of his liability towards the complainant and while issuing the aforesaid cheques accused assured and promised the complainant that same will be encashed as and when present or deposite to the bank. Acting on this assurance and promise, complainant had accepted the said cheques.
4. Complainant presented the cheque bearing No. 329616 dt. 01.09.2008 for Rs.75,000/,cheque bearing No. 329615 dt.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 2 3 01.09.2008 for Rs.75,000/ and cheque bearing No. 329614 dt. 01.09.2008 for Rs.50,000/ with the banker, same were returned back uncashed with remarks " ACCOUNT CLOSED" vide three memo dt. 06.09.2008.
5. The complainant made a demand for the payment of the said amount of money by giving a demand/legal notices dated 03.10.2008 respectively in all three complaints to accused through regd. AD post. But depsite service of legal notices, he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice resulting into filing of three complaint cases U/s 138 of the Negotiable Instrument Act, 1881 (hereinafter "the Act") against the accused.
6. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C was led by the complainant. After considering the material and the presummoning evidence on record, the accused was ordered to be summoned vide order dated 28.11.2008 to face trial for the offence under section 138 Negotiable Instruments Act, 1881 in all three cases.
7. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C. for the offence under section 138, Negotiable Instruments Act, 1881 was served upon him on 20.07.2009 to which he pleaded not guilty and claimed trial.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 3 4
8. After service of notice upon the accused under section 251 Cr.P.C.; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got himself examined as the sole witness. The complainant's evidence was closed on 27.09.2013
9. After conclusion of complainant's evidence, statement of accused was recorded on 27.09.2013 under Section 313 Cr.P.C. wherein the accused stated that he had taken the loan from Mr. Mukesh Verma and therefore issued a blank cheque towards the security of said loan. The accused opted to lead defence evidence but despite several opportunities no DW examined and therefore DE was closed on 23.09.2014.
10.I have heard the rival submissions at Bar and have gone through the records of this case.
11.To constitute an offence under Section 138 N. I. Act it has to be proved that:
a) there was a legally enforcible debt.
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to insufficiency of funds.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 4 5
d) that the demand notice was duly served on the accused and despite that he failed to make payment.
12.The Negotiable Instruments Act, 1881 raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions, both under Sections 118(a) and 139 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
13.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof beyond reasonable doubt. However, the accused in order to CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 5 6 rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647. It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana Menon Vs. State of Kerala AIR 2006 SC 3366 can be fruitfully referred to.
14.Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge of a debt or liability is a mandate of law, though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 6 7 APPRICIATION OF FACTS,EVIDENCE AND ARGUMENTS
15. Prior to proceed further it is not out of mention here that in all three cases notice u/sec. 251 Cr.P.C has been framed on 20/7/09 and in reply to the notice accused admitted that he had signed all three cheques which subject matter of all three cases, knowledge of returning memo Ex.CW1/2 and also admitted the service of legal notice dt. 03.10.2008 which is Ex.CW1/3 in all three cases, however pleaded not guilty and claimed trial.
16.On 12/11/2010 Ld. Predecessor of this court in view of the directions/orders of Hon'ble High Court of Delhi in case titled as "PRADEEP AGGARWAL & ORS VS Y.K.GOEL", matter has been listed for DE for 01/4/2011. On 22/2/2013 evidence led by the complainant by way of affidavit and tendered as Ex.CW1/A but cases were adjourned/deferred for crossexamination. Here it is not out of mention to place that on the even date i.e 22/2/2013 an application u/sec. 145(2) Cr.P.C has been filed by the accused which is also Ex.DW1/DX during crossexamination of accused but inadvertently order of allowing of said application u/sec. 145 (2) N.I act has not been recorded in the order sheet dt. 22/2/2013, therefore, that has been corrected on 26/2/2014 being typographical mistake because there was no objection on behalf of both the parties.
17.On 27/9/2013 complainant/CW1 has been crossexamined, CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 7 8 consequently CE has been closed, statement of accused u/sec. 313 Cr.P.C has also been recorded on the even date i.e on 27/9/2013 in which accused has taken stand and explained that "
I had taken loan from Mr. Mukesh Verma and therefore he issued blank cheques towards the security of the said loan". It is incorrect that returning memo Ex.CW1/2 (in all three cases) were returned on account of "ACCOUNT CLOSED" because account was not closed at that time. However, admitted that despite receiving of legal notice Ex.CW1/3 he has not replied to the legal notice and wants to lead evidence which was allowed. Accordingly after span of approximately one year, on 23/9/2014 accused himself examined, crossexamined and sought another adjournment for examination of Mr. Mukesh Verma which has been turned down by this court on the ground that during statement u/sec. 313 Cr.P.C accused has not shown his willingness to examine Mukesh Verma, even no list of witnesses has been filed since the date when S/A u/sec. 313 Cr.P.C was recorded on 27/9/2013 and further during explanation complainant has misused all three cheques in question by filing three present cases in connivance with Mukesh Verma.
18.Now turning to the merits of cases, all three cases have been filed on 18/11/08 and accused appeared on 25/6/09, notice u/sec. 251 Cr.P.C. has been served/framed on 20/7/2009 in which accused admitted that he had signed all three cheques which subject matter of all three cases, knowledge of returning CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 8 9 memo Ex.CW1/2 and also admitted the service of legal notices dt. 03.10.2008 which is Ex.CW1/3 in all three cases, complainant has led his evidence by way of affidavit Ex.CW1/A on 27/9/2013 and S/A u/sec. 313 Cr.P.C has also been recorded on even date. During crossexamination of CW1 accused has taken defence as under:
a) Alleged loan amount is uncounted which is even has not been shown in the ITR of the complainant;
b) Complainant was not capable for giving loan of Rs.2,00,000/ during the year 200708;
c) Accused has taken loan of Rs. Two Lacs from one Mr. Mukesh Verma which has been repaid;
d) All three cheques in question in all three cases had been given to Mr. Mukesh Verma towards security of loan taken from him;
e) Complainant has misused all three cheques in question by filing three present cases in connivance with Mukesh Verma;
f) Accused has not issued cheque in questions in favour of complainant at any point of time;
g) Accused has no liability to pay the cheque amount to the complainant;
h) Complainant has filed false and frivolous case against the accused to extort money from him;
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 9 10
i) No notice has been given to the accused.
19. However all these objections/defence taken by the accused has been denied by CW1/complainant in his crossexamination in a manner that " I am aware about the fact that cash transaction of more than Rs.20,000/ is not permissible as per RBI rules, further deposed that I had given Rs.1,40,000/ to the accused by way of bearer cheque drawn at Bank of Rajasthan, which has now been with the ICICI bank and rest payment of Rs.60,000/ was paid by him to the accused in cash. I had not shown the loan amount of Rs. 2,00,000/ in the ITR of relevant period. During the cross examination CW1 denied the suggestion that " It is wrong to suggest that I was not capable for giving loan of Rs.2,00,000/ in the year 200708 as such there is no mention in my ITR". It is wrong to suggest that accused has raised a loan of Rs.2,00,000/ from Mr. Mukesh Verma. It is wrong to suggest that cheque in question has been given to Mr. Mukesh Verma towards security. It is wrong to suggest that I(CW1) have misused the cheque in question in connivance with said Mr. Mukesh Verma. It is wrong to suggest that cheque were never issued by the accused in favour of the complainant at any point of time. It is incorrect to suggest that accused had no legal liability to pay the cheque amount to the complainant. It is wrong to suggest that no notice was served upon the accused and lastly it is wrong to suggest that I have filed false and frivolous cases against the accused in order to extort money from him.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 10 11
20.On the other hand, accused examined himself as DW1 and has taken similar stands to defence developed during cross examination of CW1 that he had taken loan of Rs.2,00,000/ from Mr. Mukesh Verma about six years ago which he had repaid after six months from the period of taking loan. I (accused) have issued all three cheques in question duly signed but without filling any entry to Mr. Mukesh Verma and when I/accused demanded my above said cheques he/ Mr. Mukesh Verma make excuse and stated that cheque have been lost after about two months from that period. But during the crossexamination he admitted the service of legal notice Ex.CW1/3 and also admitted that after receiving the legal notice he met with Mr. Mukesh Verma who refused to return the cheque and also advised him to talk to the complainant. Till date I/accused continuously touch with Mr. Mukesh Verma who states that he will come in the court as a witness.
21.During crossexamination of DW1/accused, accused also admitted the contents of application u/sec. 145(2) N.I act which is Ex.DW1/DX from portion mark A1 to A2, that "I have mentioned that applicant/I/accused had repaid the loan amount to the complainant. Further during crossexamination he admitted the contents of para3 which are at point B1 to B2 of Ex.DW1/DX1 that " It is correct that I have not mentioned the parentage and address of Mr. Mukesh Verma in my application. It is correct that I have not mentioned the date, month and year CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 11 12 in the application when I had taken the loan. Vol. deposed that loan was taken by me from one Mr. Mukesh Verma in the year 2008 and repaid the same within six months. Further DW1 admitted that "It is correct that I have not mentioned the mod of repayment of loan amount however I have repaid the loan amount in cash to Mr. Mukesh Verma. It is correct that I had not made any complaint regarding lost of cheque in question. It is correct that I made request to the bank with regard to the non/stop payment of said cheque however, same are not with me. I will produce the same as and when asked. It is correct that I have not narrated the above facts in both either in application u/sec. 145(2) N.I Act or application u/sec315 Cr.P.C." However, denied the suggestion that I have never taken any loan from complainant or that I repaid the loan amount to the complainant or that I am deposing falsely.
22.On these submissions Ld. counsel for complainant requests to convict the accused on the ground that all essential four ingredients have been proved by him because accused not only admitted the fact of signatures on the cheque in question, returning memo and service of legal notice and liability but also admitted in the application u/sec. 145(2) N.I Act as well as during his crossexamination,that he has repaid the loan of Rs.2,00,000/ to the complainant.
23.At one side he has admitted the service of legal notice, fact that till today he had not made any complaint against Mukesh Verma CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 12 13 who allegedly given the loan to the accused and obtained all three cheque in questions as security but did not return the same subsequently complainant in connivance with Mr. Mukesh Verma has filed the present three cases. On the other side even have failed to furnish the documents qua the request made to his Bank for payment stopped in respect to the cheque in question that payment of cheque in question were being stopped on account of missing /lost or that all three cheques in question were given to Mr. Mukesh Verma as security who has lost the same.
24.It is further contended by Ld. counsel for complainant parties are not suppose to take stands/defence which is inconsistence to each other. It is contended that during crossexamination of CW1 defence has been taken by the accused that loan amount of Rs.2,00,000/ cannot be make in cash but during cross examination he admitted that loan amount of Rs.2,00,000/ has been repaid to Mr. Mukesh Verma in cash. However it is matter of fact that during crossexamination CW1 clarified the fact that Rs.1,40,000/ has been made through cheque with details of Bank and rest amount of Rs.60,000/ has been paid in cash. All the stories, stands/defence taken during trial by the accused are concocted and afterthought keeping in view the fact that accused himself admitted the service of legal notice and fact that he had stated that till date I/accused continuously touch with Mr. Mukesh Verma who states that he will come in the court as a witness and despite that n o complaint has been filed either CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 13 14 against Mr. Mukesh Verma or complainant and relied upon the judgment reported as " V.S. YADAV VS REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs. 138,139 and Cr.P.C., 1973251281 Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean mis reasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for sake of fundThis order is made for consideration and that is why Sec.139 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881 Sec.138/139Dishonour of cheque Presumption under sec. 139Rebuttal of CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 14 15 Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under sec. 139 N.I Act In order to rebut the presumption under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this caseJudgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 313 Cr.P.C is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under sec. 281 Cr.P.C or 313 Cr.P.C cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 15 16 to prove this, he was supposed to appear in the witness box and testify and get himself subjected to crossexamination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under sec. 281 Cr.P.C that the cheques were issued as security, does not amount to proof.
Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence."
It was further held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 16 17
G. Hedge, 2008(1) JCC(NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec. 138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec. 139 of N.I Act. If mere statement under sec. 313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under sec. 139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 17 18 a contract he could not have rebutted the presumption u/sec. 139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.
25. On the other hand accused contended that all three cheques in question were given to Mr. Mukesh Verma towards security of loan amount of Rs.2,00,000/taken by the accused, despite making payment of loan amount, cheque in questions have not been returned which has been explained in his examination and since the alleged loan amount has been given in cash uncounted hence cannot be subject matter of the complaint u/sec. 139 N.I Act because presumption is only in respect to the legally recoverable debt. Ld. counsel for accused relied upon the judgment reported as:
1."2009(3) CRIMINAL COURT CASES 080 (BOMBAY) BOMBAY HIGH COURT SANJAY MISHRA VS KANISHKA KAPOOR @ NIKKI & ANR.
2.VEMPATI BALAJI VS D. VIJAYA GOPALA
REDDI, ANDHRA PRADESH HIGH COURT
CRIMINAL PETITION NO. 2509 OF 1998
3.KALYANI REFINERIES LTD. VS BANARAS
STATE BANK LTD. ANDHRA PRADESH
HIGH COURT CRIMINAL PETITION NO.
4461 & 4462 OF 1998"
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 18
19
4.M/S BALAJI SEAFOODS EXPORTS ( INDIA)
LTD. VS. MAE INDUSTRIES LTD. 1999(1)
RCR
5. KAMALAMMAL VS C.K MOHANAN &
ANR. 2007(3) CIVIL COURTS CASES 237
(KERALA)
6. NARANJAN LAL SHARMA VS USHA
BANSAL 2008(3) CRIMINAL COURT CASES
047(P&H)
7. NARINDER KUMAR VS HARNAM SINGH
2000(2) CIVIL COURT CASES 303 H.P
8.A.BHOOSANRAO,VS PURSHOTAMDAS
PANTANI 1998 (2) CIVIL COURT CASES 655
(A.P)
9. CAPITAL SYNDICATE VS JAMEELA
2003(1) CRIMINAL COURT CASES 675
(KERALA)
10. GOA HANDICRAFTS, RURAL & SMALL
SCALE INDUSTRIES DEVELOPMENT
CORPORATION LTD. VS M/S SAMUDRA
ROPES PVT. LTD. 2006(2) CRIMINAL
COURT CASES 1009 (BOMBAY) BOMBAY
HIGH COURT
11. JOHNSON SCARIA VS STATE OF
KERALA 2007(1) CRIMINAL COURT CASES
161(KERALA)
12. RAJENDRAPRASAD GANGABISHEN
PORWAL VS SANTOSHKUMAR
PARASMAL SAKLECHA & ANR. 2008(4)
CRIMINAL COURT CASES 474 (BOMBAY)
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 19
20
26.After taking into consideration facts, circumstances and evidence led by the parties I am of the considered view that so far as the objection qua uncounted loan amount is concerned, that controversy has been decided by the Hon'ble Supreme Court of India in the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt. Further I am of the view that no one should allow to contest the case and given opportunity to cause delay the trial by taking such stand upon which he himself is not acted upon because he himself admitted that he(accused) had repaid the loan of Rs.2,00,000/ in cash to Mr.Mukesh Verma especially when his case/defence is not that he has repaid the loan amount to Mukesh Verma in the installment as well as keeping in view the facts that in the application u/sec. 145(2) N.I Act he also contrary admitted that he has repaid the loan of Rs.2,00,000/ to the complainant.
27.So far as the merit of the case is concerned during cross examination of CW1 he has explained that Rs.1,40,000/ has been given to the accused through cheque and rest amount of Rs.60,000/ was given in cash. A person who approached the court must come with clean hands, objection qua giving the loan amount of more than Rs.20,000/ in cash is not applicable to the complainant alone because accused himself admitted that he has CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 20 21 repaid the loan amount of Rs.2,00,000/ in cash to Mukesh Verma but neither Mukesh Verma has been examined nor produced any document for repayment of Rs.2,00,000/ either to complainant or Mukesh Verma.
28.So far as the other objection/defence is concerned since CW1 remained affirmed on the point for giving loan, issuance of cheque by the accused to the complainant, proved returning memo Ex.CW1/2 and service of legal notice Ex.CW1/3 because accused himself admitted, during reply of notice u/sec. 251 Cr.P.C, service of legal notice and even it has also been admitted during statement u/sec. 313 Cr.P.C and further it is also admitted that no reply has been sent to the complainant. Under these circumstances all the defence taken by the accused during trial appears to concocted, afterthought because it is also admitted that he has never wrote any letter in writing either to the complainant or to Mr. Mukesh Verma for returning of cheques in question and further during crossexamination of DW1/accused it is admitted that he has not made any complaint against Mr. Mukesh Verma qua non returning of cheque in question or misusing the cheques in questions. Under these circumstances all the judgments which are relied upon by Ld. counsel for accused are not applicable to the given facts and circumstances rather judgment which is relied upon by Ld. counsel for complainant reported as "V.S Yadav Vs Reena 2010(4) JCC( NI) 323" is more applicable to the given facts and circumstances.
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 21 22 DECISION AND REASONING
29.After taking into consideration the facts and circumstances of the case, I am of the considered view that judgments which are relied upon by the accused not applicable to the given facts and circumstances of the present case and in view of the judgment "Rangappa Vs. Mohan 2010 (3) JCC 254(NI)", and "V.S Yadav Vs Reena 2010(4) JCC( NI) 323" I am of the considered view that objection in respect to the unaccounted loan is not sustainable and in the present case all the four ingredients of section 138 N.I Act has been proved by the complainant beyond reasonable doubt. Issuance of cheque towards discharge of legal liability proved by the complainant, dishonour of the cheque is proved by returning memo Ex.CW1/2, legal notice has been proved as Ex.CW1/3 because service of legal notices have been admitted by the accused at the time of notice giving in writing u/sec. 251 Cr.P.C and thus I am of the considered opinion that accused has failed to rebut the presumption and essential ingredients of offence u/sec. 138 N.I Act stands proved.
30.For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused has been proved. Accused is accordingly held guilty and convicted under Section 138 N. I. Act. Let convict/accused be heard on the point of sentence on 26/11/2014.
ANNOUNCED IN OPEN COURT Dated : 22nd NOVEMBER 2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 22 23 IN THE COURT OF RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT : KARKARDOOMA COURTS, DELHI.
DHARMENDRA MOHAN SAXENA VS RAKEHS KUMAR CC/RBT No.: 176, 177 & 178/14 U.I.D. No. : 02402R0825292008 U/s. : 138 N.I. Act P.S. : SHAHDARA 02/12/2014.
Present : Complainant in person with proxy counsel Sh. Avnish Kumar for main counsel Sh. Manish Kumar.
Convict with counsel Sh. Pradeep Sharma.
Report from SHO Shahdara received but not filed by Probation officer.
1. Vide separate judgment passed and announced in the open court on 22/11/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. An application on behalf of accused filed u/sec. 360 Cr.P.C r/w section 3&4 of Probation Offenders Act .
3. It is argued by Ld counsel for convict that convict is aged about 42 years old and has no previous involvement or antecedents. It is also stated that convict is having responsibility to look after his family consisting of his wife and two minor sons aged about 8 years and 13 years, who are school going, convict is running stationery shop and is earning Rs.8000/ p.m. It is further CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 23 24 submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as he is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last six years and on account of conduct of convict, he may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
4. Opposed by Ld. counsel for complainant stating that convict be punished with maximum punishment and he do not deserve any leniency. Adequate compensation has been prayed to be given to the complainant by Ld. counsel for complainant .
5. I have heard the submissions of Ld. counsel for convict and have perused the record. Liability in this case has already been proved during the trial and the payment of Rs.2,00,000/ (Rupees Two Lacs) is pending in this case for the last six years.
6. Having considered the above said facts and circumstances of the case and the fact that convict has no previous criminal background and report of SHO in favour of convict, hence it is expedient to release him on probation of good conduct and behaviour. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 24 25 maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of two years. No order as to fine. Further Rs.3,00,000/(Rupees Three Lacs) as compensation is awarded in faovur of the complainant which has to be paid within one month to the complainant by the accused/convict failing which he shall under go for further simple imprisonment for two years and compensation shall be recovered as revenue of State.
7. Convict is directed to appear before Probation Officer at least once in every two months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation bond furnished on behalf of convict which are accepted.
8. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT
Dated : 02/12/2014 (RAKESH KUMARIII)
CMM, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CC No.176/14, 177/14 and 178/14 DHARMENDRA MOHAN SAXENA VS RAKESH KUMAR 25