Delhi District Court
Cc No. 2817/10 Sbbj vs Veena Tripathi 1/13 on 23 June, 2012
IN THE COURT OF MS MANISHA TRIPATHY: MM (09): SPECIAL
COURT NO.9: DWARKA COURT: NEW DELHI
In the matter of: -
CRID NO. 02405R0875422008
CC NO.: 2817/10
STATE BANK OF BIKANER & JAIPUR
C-14, COMMUNITY CENTRE,
JANAK PURI, NEW DELHI-110058
THROUGH ITS ATTORNEY HOLDER
SHRI A.K. GUPTA
... Complainant
Vs.
SMT. VEENA TRIPATHI
W/O SHRI ANIL KUMAR TRIPATHI
R/O SHUBHAM NURSING HOME
WL-904, BELOW FLY OVER
MAIN PANKHA ROAD
NANGAL RAYA, DELHI - 110046
....Accused
Date of Institution of Complaint : 02/04/2008
Offence complained of : Punishable u/s 138 N.I. Act
Plea of accused : Not guilty
Date of Final Arguments Heard : 12/04/2012
Date of Decision : 23/06/2012
Decision : Convicted
CC No. 2817/10 SBBJ Vs Veena Tripathi 1/13
-:JUDGMENT:-
1.Present case was instituted on a complaint filed by State Bank of Bikaner & Jaipur (hereinafter referred to as the complainant) against Smt. Veena Tripathi (hereinafter referred to as the accused) u/s 138 of Negotiable Instrument Act 1881 (hereinafter referred to as 'the act'). Brief facts of the case as alleged by the complainant are that the accused had availed a loan of Rs.3,15,000/- from the complainant vide hypothication loan agreement and arrangement letter dated 28/03/2003, whereby she had agreed to repay the said loan amount alongwith contractual rate of fluctuating interest @ 11.50% per annum with quarterly rests in 84 equal monthly installments of Rs.5400/- each. In discharge of her liability to repay the unpaid outstanding installments, the accused issued cheque bearing no. '581043' dated 14/03/2008 for Rs. 4,39,553/- drawn on State Bank of Bikaner & Jaipur (hereinafter referred to as the 'said cheque'). The said cheque was returned unpaid upon presentation vide memo dated 14/03/2008 with remarks 'Account Closed'. The complainant sent legal demand notice dated 15/03/2008 to the accused through registered AD/ approved courier on 15/03/2008. The accused failed to make payment of the cheque amount within stipulated time. Therefore, the present complaint was filed on 02/04/2008 through Sh. A.K. Gupta Authorized Representative of the complainant bank.
2. As a prima facie case was made out on the basis of material on record, the accused was summoned on 07/04/2008. The accused entered appearance on 09/05/2008. Notice u/s 251 CrPC was served upon her on 04/06/2008 to which she pleaded not guilty and claimed trial.
3. Alongwith complaint, AR of the complainant had filed pre CC No. 2817/10 SBBJ Vs Veena Tripathi 2/13 summoning evidence by way of affidavit wherein he reiterated the allegations made in the complaint. He exhibited following documents :
i. Evidence by way of affidavit Ex.CW1/A
ii Notification dated 14/02/2000 Ex.CW1/1
iii Hypothecation agreement Ex.CW1/2
iv cheque bearing no. '581043' dated 14/03/2008 Ex.CW1/3
v cheque return memo dated 14/03/2008 Ex.CW1/4
vi Legal demand notice dated 15/03/2008 Ex.CW1/5
vii Courier Receipts dated 15/03/2008 Ex.CW1/6 &
Ex.CW1/7
4. Later on Sh. B.P. Pancholi, CW1 was substituted as authorized representative of the complainant. He filed post summoning affidavit wherein he reiterated the complaint and relied on the documents exhibited by the previous AR. He exhibited the following documents besides the aforesaid documents:-
i. Evidence by way of affidavit Ex.CW1/A
5. Accused was granted opportunity to cross examine complainant witness. Thereafter complainant evidence was closed and entire evidence against the accused was put to her. Statement of the accused was recorded on 27/03/2012 u/s 313 Cr.P.C. Accused admitted her signatures on cheque in question however, she stated that she had handed over 84 signed blank cheques for payment of monthly installments of Rs.5400/-. Accused further stated that only payee's name was written by her and the amount thereon has been filled by the complainant without obtaining her consent. She denied receiving of legal demand notice.
CC No. 2817/10 SBBJ Vs Veena Tripathi 3/13
6. No evidence was led by the accused in her defence. Thereafter final arguments were heard.
7. Before proceeding further it will be useful to have a look at relevant provision of the Act. Section 138 of the Act is being reproduced herein for ease of reference-
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts -
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 whole 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 extend to two year", 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 induce 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 cheques as unpaid, and
(c) The drawer of such cheque fails to make CC No. 2817/10 SBBJ Vs Veena Tripathi 4/13 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 said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
8. Thus, for an offence under s. 138 NI Act essential ingredients that must be established are as follows-
• Issuance of cheque by the accused on an account maintained by him with a bank;
• The cheque must have been presented to the bank within the period of six months from the date of the cheque or within the period of its validity;
• Upon presentation for encashment, the cheque must have been returned unpaid;
• The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding the return of the cheque;
• The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal demand notice.
• The cheque must have been issued in discharge of legal debt or liability;
9. Accused has admitted her signature on the said cheque Ex.CW1/3. The said cheque was presented to the bank within validity period and was returned unpaid due to 'Account Closed' is established by cheque return memo Ex.CW1/4. Payment towards dishonoured cheque has not been made till date is undisputed.
CC No. 2817/10 SBBJ Vs Veena Tripathi 5/13
10. On the basis of evidence adduced and arguments advanced by parties following points arise for determination by this court-
1. Whether the said cheque to the tune of cheque amount was issued by the accused or whether amount has been filled up without consent of the accused by misusing the post dated cheque issued for payment of monthly instalments.
2. Whether legal demand notice as envisaged under s.138 of the act was served upon the accused.
11. Now I shall proceed to decide the points raised for determination.
Whether the said cheque to the tune of cheque amount was issued by the accused or whether amount has been filled up without consent of the accused by misusing the post dated cheque issued for payment of monthly installments.
12. In this regard, the accused claimed in her statement u/s. 313 Cr.P.C. That she had issued 84 signed blank cheques for payment of monthly installments of Rs. 5400/- wherein only signatures and payee's name were written by her. She claimed one of such cheques was filled up by the complainant,without her consent, for an amount which was not not due upon her on the date mentioned on the said cheque. While admitting her liability to repay the loan, she denied liability to pay the said cheque alleging that the said cheque was manipulated and filled for a huge amount without her consent.
13. No evidence whatsoever was led by the accused to substantiate CC No. 2817/10 SBBJ Vs Veena Tripathi 6/13 her claim. No explanation came from the accused as to why she handed over blank cheques for payment of fixed monthly installments. It is not the case of the accused that installments were not fixed at the time of handing over of cheque and that the same were to be fixed in future. It is unlikely that a person who is well aware of the instalment amount and due date shall hand over blank cheques and not duly filled post dated cheques for payment of monthly EMIs. It was argued that signature and payee's name are in different ink and handwriting from the one used in filling date and amount, meaning thereby, the date and amount has been filled up by complainant. I am not in agreement with this contention. Evidently, signature and payee's name on the one hand and amount and signature on the other are in different ink and handwriting. However, merely because different columns on the said cheque are in different ink and handwriting, in absence of any other evidence, it can't be presumed that amount and date have been filled by complainant. There is no evidence on record on this aspect and therefore, no conclusion can be drawn only on the basis of argument. It is equally possible that the said cheque could have been duly filled when it was handed over to complainant.
14. Even otherwise, for the sake of argument if it is assumed that the said cheque was handed over by the accused bearing only her signature and payee's name, that in itself will not invalidate the said cheque. It was held by The Hon'ble High Court of Delhi in Ravi Chopra v. State & Anr.[2008 (2) JCC (NI) 169] that under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. The Hon'ble court observed-
CC No. 2817/10 SBBJ Vs Veena Tripathi 7/13 "Section 20 N.I. Act talks of "inchoate stamped instruments"
and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument"
such person thereby gives prima facie authority to the holder thereof " to make or complete as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque. It makes it clear that the holder does not thereby incurred the responsibility of an endorser." Likewise, Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course."
15. Thus, any drawee who hands over a partially filled negotiable instrument to another person, does so, with implied authority to that person to complete the details that are left blank by the drawee. If such drawee claims that such person had no authority to complete the instrument or that instrument was completed contrary to his instructions or without his consent, the burden is upon such drawee to prove lack of consent. On this aspect It CC No. 2817/10 SBBJ Vs Veena Tripathi 8/13 was observed by The Hon'ble High Court of Kerala in LillyKutty v. Lawrance 2003 (2) DCR 610 "The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer."
16. In the instant case, assuming that the said cheque was incomplete at the time of handing over, no evidence has been led by accused to prove that the said cheque was filled by the complainant without her consent. Accordingly, plea of the accused that cheque has been filled up by complainant without her consent is not proved.
Whether Service of legal demand notice on the accused as envisaged u/s. 138 of the Act is proved.
17. In this regard CW1 deposed that legal demand notice Ex.CW1/5 was sent at the address of the accused through courier vide receipt Ex.CW1/6 CC No. 2817/10 SBBJ Vs Veena Tripathi 9/13 and Ex.CW1/7. In absence of any other evidence to contrary, there is no reason to disbelieve deposition if CW1 on oath that legal demand notice was so sent, particularly when copy of legal notice and courier receipt is filed on record and genuineness of courier receipt is not disputed.
18. It was argued that courier receipt doesn't contain complete and correct address of the accused and thus complainant can't claim to have sent legal demand notice at the correct address of the accused. Correctness of the address mentioned on legal demand notice Ex.CW1/5 is not challenged and therefore address thereon is deemed to be correct address of the accused. It is common practice for courier agents or postal officials to mention only part of sendee's name and address on the receipt. Merely because complete name or address of the sendee is not mentioned on courier receipt is no ground to believe that the envelope containing legal demand notice was not properly addressed, particularly so, when CW1 has vouched for this fact in his deposition on oath. Thus, considering legal notice Ex.CW1/5, payment receipts Ex.CW1/6 and Ex.CW1/5 and deposition of CW1 sending of legal demand notice at correct address of the accused is proved.
19. It was also argued on behalf of the accused that legal demand notice was never served upon her and therefore, complainant u/s. 138 of the act is not maintainable on this ground. In reply, it was argued by Ld. Counsel for the complainant that complainant is entitled to benefit of s.114 of The Indian Evidence Act 1872 and that by virtue of said provision it can be presumed that legal demand notice was delivered at the address mentioned on the legal demand notice. The question of implication of S.114 of The Indian Evidence Act 1872 insofar as service of legal demand notice is concerned was considered by the apex court in C.C. Alvi Haji v. Palapetty CC No. 2817/10 SBBJ Vs Veena Tripathi 10/13 Muhammed & Anr.(C.C. Alvi Haji V. Palapetty Muhammed & Anr. 2007 STPL(DC) 952 SC).The Hon'ble court observed:
"According to Section 114 of the Act, read with illustration
(f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 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..."
20. Thus, u/s.114 of The India Evidence Act1 872 gives ample power to court to presume that a correctly addressed legal demand notice through approved courier would have been delivered at the address of the addressee and there is no reason why benefit of said provision should not be given to the complainant in the instant case. In fact the benefit of said provision was already given to the complainant when accused was summoned on the basis of legal demand notice Ex.CW1/5, courier receipts Ex.CW1/6 and Ex.CW1/7 and pre-summoning affidavit of Sh. A. K. Gupta Ex.CW1/A. The said presumption is rebuttable one and ample opportunity was available to the accused to rebutt the said presumption by showing that she had no knowledge that the notice was brought to her address or that the address mentioned on the cover was incorrect or that the letter was never tendered.
CC No. 2817/10 SBBJ Vs Veena Tripathi 11/13 However, accused chose to not avail the opportunity and led no evidence to prove that she indeed did not receive legal demand notice and she was not at fault for non service. Now, having failed to rebutt the presumption the accused can't contend that legal demand notice was not received by her and therefore, she did not make payment of the dishonoured cheque.
21. Even otherwise,The Hon'ble Supreme Court of India in C.C. Alvi Haji V. Palapetty Muhammed & Anr. 2007 STPL(DC) 952 SC held that even if the accused didn't receive the legal demand notice he can pay the cheque amount within 15 days of service of summons from the court but if he fails, he can't contend that he has not received the legal demand notice. The relevant extract is reproduced herein below:-
"para 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 under Section 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 under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the priviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the "giving of notice" in the context of Clause (b) of the CC No. 2817/10 SBBJ Vs Veena Tripathi 12/13 proviso was the same as the "receipt" of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
22. Admittedly, the accused did not make any payment to the complainant within 15 days of receiving the summons. Even after appearance before the court on 09/05/2008, the accused never submitted that she did not make payment in compliance of legal demand notice as she was not served with any such notice and that given an opportunity, she was willing to pay the cheque amount within stipulated time. Therefore, in view of the above- mentioned judgment of the Hon'ble Supreme Court the contention that the accused didn't receive legal demand notice and hence complainant u/s 138 N.I. Act is not maintainable due to non service of legal demand notice is not tenable.
23. In view of the discussion above, the complainant has successfully proved its case whereas all the pleas taken by the accused are not proved. Accused Veena Tripathi is accordingly convicted of offence punishable u/s 138 of Negotiable Instrument Act.
Announced in Open Court
on 23/06/2012 (MANISHA TRIPATHY)
METROPOLITAN MAGISTRATE,
SPECIAL COURT(09), DWARKA COURTS,
NEW DELHI
CC No. 2817/10 SBBJ Vs Veena Tripathi 13/13