Delhi District Court
:: vs :: on 26 September, 2022
IN THE COURT OF MR. SAHIL KHURMI,
METROPOLITAN MAGISTRATE (N.I. ACT)- 02,
ROUSE AVENUE COURT COMPLEX: NEW DELHI
DLND020187142019
Case No: 10760/2019
Deepak Kumar
r/o Sh. Deshraj,
r/o House No.E-216, Budh Nagar,
Inderpuri, New Delhi
...... Complainant
::Versus::
Kuldeep Kumar
s/o Sh. Laxmi Das,
R/o 33/15, Under Hill Road NR,
Dobhi Ghat, Civil Lines,
Delhi- 110054
Also At : Posted as Process Server
District North East, Najarat Branch,
Karkardooma Court, Delhi-110091
.......Accused
Offence Complained of: 138 NI Act
Plea of the Accused: Not guilty
Date of Institution: 01.08.2019
Arguments Heard On: 24.09.2022
Date of Judgment: 26.09.2022
Decision: CONVICTION
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 1 of 16
JUDGMENT
1. Vide this judgment, I shall decide the present complaint filed u/s 138 NI Act bearing CC No.10760/2019, against the dishonor of cheque bearing no. 064076 dated 05.04.2019 for an amount of Rs.1,50,000/- drawn on UCO Bank, Civil Lines, Delhi, (Hereinafter referred to as cheque in question)
2. Shorn to unnecessary details, the brief facts of the case put forth by the complainant are that both the complainant and accused work together as Process Servers in Tis Hazari Court, Delhi and in the month of January, 2019, the complainant advanced friendly loan of Rs.1,50,000/- for a period of 3 months to the accused and in discharge of liability, the accused had issued the cheque in question which was dishonored with the remarks 'funds insufficient' vide cheque returning memo dated 20.04.2019 and 23.05.2019.
3. Legal demand notice dated 20.06.2019 was sent to the accused. However, no payment was made within 15 days and hence, the present complaint.
4. The complainant examined himself as CW-1 in pre- summoning evidence, and relied upon his evidence by way of affidavit along with the following documents: -
S.No Documents relied upon Exhibited as:
1. Cheque in question Ex. CW-1/1
2. Cheque return memos Ex.CW-1/2 & Ex.CW-1/3 Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 2 of 16
3. Legal demand notice Ex. CW-1/4
4. Postal receipts Ex. CW-1/5
5. Regd. AD Cover and Speed post Ex. CW-1/6 (colly)
6. Evidence by way of affidavit Ex. CW-1/A
5. On appearance of accused, vide separate statement of accused recorded in the court, he stated that he is ready to make the payment qua the cheque in question for Rs.1.5 lakhs on or before 27.01.2020. However, since the payment was not made by the accused, thereafter the matter proceeded on merits.
6. Notice of accusation u/s 251 Cr.PC was served upon the accused on 09.03.2022, to which the accused pleaded not guilty and claimed trial. Accused stated that the signature on the cheque belong to him and he had filled the amount in cheque as Rs.50,000/-, however, the complainant had put 'one' before it. He further stated that he had not received the legal demand notice, however, he admitted his address on the legal notice. He further stated that he had taken Rs.50,000/- from the complainant and not Rs.1,50,000/-.
7. On 09.03.2022, oral application u/s 145(2) NI act was moved which was allowed. CW1 was examined in chief, cross- examined and discharged on 23.03.2022. All the incriminating evidence was put before the accused and the statement of accused u/s 313 Cr.PC was recorded on Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 3 of 16 23.03.2022 in which accused reiterated his defence and stated that the signature on the cheques are his and he has not filled the contents of the cheque and not received the legal demand notice. He admitted his address on the legal demand notice. He further stated that he has taken Rs.50,000/- from the complainant and one pro note was also signed by him. He further stated that he used to pay Rs.5,000/- interest per month to the complainant till lockdown in 2020 and thereafter stopped paying the interest. Thereafter, matter was fixed for DE.
8. Thereafter, DW-1 Hari Shankar was examined in chief, cross examined and discharged on 06.09.2022. Thereafter, vide separate statement of accused, DE stood closed and the matter was fixed for final arguments.
9. Thereafter, final arguments were heard on behalf of both the parties. I have heard the counsels for both parties at length, considered the evidence led by them carefully and have perused the court records thoroughly.
INGREDIENTS OF OFFENCE AND DISCUSSION
10. Before going into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence, as highlighted below:
1st Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 4 of 16 money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
2nd Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
3rd Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
4th Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
5th Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
11. In order to prove the aforesaid ingredients, the complainant has proved the following:
(a) The complainant has proved the original cheque, Ex. CW-
1/1 which the accused has not disputed as being drawn on the Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 5 of 16 account of the accused and the accused has admitted the signature on the cheque.
(b) The cheques in question were returned unpaid vide return memos dated 20.04.2019 and 23.05.2019 Ex. CW-1/2 and Ex.CW1/3 respectively. The same is also not disputed by accused.
(c) The complainant has proved on record legal notice Ex. CW1/4 dated 20.06.2019, postal receipt Ex.CW1/5 and regd. AD and speed post envelope Ex.CW1/6. However, the accused has denied receiving the legal demand notice, however he admitted that the address mentioned on the legal demand notice is correct in his notice framed u/s 251 Cr.P.C and statement recorded u/s 313 CrPC. It is observed that the accused appeared before the court after the summons were issued on the same address as mentioned on the legal demand notice and the accused has filled the same address as his residential address in the bail-bonds furnished by him during the course of trial also. Therefore, it emerges that the legal demand notice was properly addressed and posted by the complainant. It was held by the Hon'ble Supreme Court in the decision cited as C.C. Alavi Haji vs Palapetty Muhammed & Anr. (2007) 6 SCC 555 that 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 Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 6 of 16 ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. Thus, the plea of the accused that the legal demand notice was never received is not tenable and accordingly, rejected.
(d) The fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed.
12. As such, on the basis of the above, the first, third, fourth and fifth ingredient of the offence under Section 138 NI Act stands proved against the accused.
13. As far as the proof of second ingredient is concerned, the complainant is required to prove that the cheque in question was issued by the accused and it was drawn by the drawer for discharging a legally enforceable debt.
14. In the facts of the present case, since the signatures on the cheques in question are admitted by accused during entire trial, accordingly, this court raises presumption under section 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question. (Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 7 of 16 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418)
15. Further reliance is placed upon recent judgment of Hon'ble Supreme Court of India in P Rasiya vs. Abdul Nazer and Anr. decided on 12.08.2022 in which it is held that:
".... However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant / holder of the cheque, in that case, it is for the accused to prove the contrary."
(emphasis supplied)
16. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant. Now let us examine the defense raised by the accused and evaluate the same.
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 8 of 16DEFENCE THAT CONTENTS/PARTICULARS OF CHEQUE NOT FILLED BY ACCUSED:
17. It is defence of accused that he had not filled the contents or particulars of the cheques in question. It is settled law that filling of particulars of cheque by any person other than the drawer does not invalidate the cheque and shall still attract the presumption under Section 139 of the NI Act. The same was held by the Hon'ble Supreme Court of India in the decision cited as Bir Singh vs Mukesh Kumar (2019) 4 SCC 197. The apex court observed as follows:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
18. It is apposite to mention the decision of Ravi Chopra vs State & Anr. (2008) 102 DRJ 147 wherein it has been held by Hon'ble Delhi High court that:
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 9 of 16"18. Section 20 NI 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 by doing 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 Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 10 of 16 rendered void only because it was so done after the cheque was signed and delivered to the holder in due course.
20. A collective reading of the above provisions shows that even 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."
(emphasis supplied)
19. Recently, it has been held by Hon'ble Supreme Court in Oriental Bank of Commerce vs Prabodh Kumar Tewar Cr.Appeal 1260 of 2022 on 16 August 2022 that:
17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert.
Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability."
(emphasis laid)
20. Therefore, in consonance with the holding of the Hon'ble Supreme Court and High Court of Delhi, it is the considered opinion of this Court that merely because the other details of the cheque in question were filled in by the complainant, the accused cannot take the defence that there was no liability that had accrued on part of the accused towards the complainant.
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 11 of 16DEFENCE OF NO LEGALLY ENFORCEABLE DEBT OR LIABILITY
21. Ld. counsel for accused has stated that accused has taken a loan of Rs.50,000/- only from the complainant and the accused had filled the amount of Rs. 50,000/- in the cheque, however the complainant put 1 before it and made it Rs. 1,50,000/-.
22. Per contra, learned counsel for complainant has stated that the contention that the accused had filled the amount of Rs. 50,000/- only and the complainant made it Rs. 1,50,000/- is inconceivable as if the accused could fill the amount in num- bers in the cheque, he could have also filled the amount in words, whereas the amount in words is clearly mentioned as one lac fifty thousand only and moreover, the reason for dis- honour is "Funds insufficient" and not "alteration requires drawer attention". Learned counsel for complainant has stated that no cogent evidence has been led by the accused to substantiate his plea of defence. He has further stated that neither the accused stepped in the witness box to depose or lead evidence nor anything material could be extracted from the cross examination of complainant by the accused. He has further stated that only one defence witness deposed in favor of accused who is related to accused as cousin and thus, be- ing interested witness, his testimony deserves to be discred- ited.
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 12 of 1623. It is pertinent to mention from the entire cross examination of complainant by the accused, nothing material has been elicited to fortify the case of accused or demolish the case of complainant. Only Suggestions have been given to com- plainant and it is settled law that "mere suggestions do not amount to proof."
24. Regarding the contention of the accused that he has taken a loan of Rs.50,000/-only from the complainant and not Rs.1,50,000/-, it is pertinent to note that no cogent evidence has been led by the accused to prove the same. Since the pre- sumptions of NI act lies against the accused, the burden was on the accused to prove his defence. Mere bad submissions without any proof, would not help the accused to rebut the mandatory presumptions of NI act and absolve himself from his liability.
25. Regarding the contention of the accused as stated in notice framed u/s 251 CrPC that he has filled the amount of Rs.50,000/- in the cheque and the complainant had put 1 be- fore it and made it Rs.1,50,000/-, the said submission does not inspire the confidence of the court because, in his state- ment u/s 313 CrPC the accused has stated that, "I have not filled the contents of the cheque". In his statement u/s 313 CrPC, accused didn't whisper anything about filling the amount of cheque as Rs. 50,000/-. Thus, the defence of ac- cused is not consistent and not credible and deserves to be dismissed on this ground alone. Secondly, the reason for dis- honor is "funds insufficient" and not "alteration requires drawer's attention" i.e. if there would have been any alter-
Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 13 of 16ation in the amount mentioned in the cheque then the reason for the dishonor would not have been "funds insufficient". Thus, this defence of accused is untenable and hence re- jected.
26. Regarding the contention of accused that the complainant has not mentioned the date on which the loan in question was given, it is considered view of this court that the complainant has duly mentioned the month and year of giving the loan in question. Merely because the complainant doesn't recall the date of giving loan, doesn't mean that the entire case of com- plainant goes away. Regarding the evidentiary value of testi- mony of DW-1 Hari Shankar, he is admittedly related witness (cousin) of accused and his testimony can't be solely relied upon being related and interested witness.
27. Regarding the contention of accused, as put to complainant in his cross examination regarding no witness to giving loan by complainant to accused or not remembering the exact loca- tion of giving loan, the same are inconsequential. Support is drawn from the decision of the Hon'ble High Court of Delhi cited as Sanjay Arora vs. Monika Singh; 2017 SCC Online Delhi 8897. In the present case also, since the accused has not been able to prove the defence taken by him, as held in preceding paragraphs, consequently, the present plea of the accused is not tenable.
28. It is pertinent to note that no proof has been furnished by the accused to establish this defence. It is settled law that the pre- sumption under section 139 of NI Act cannot be rebutted Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 14 of 16 upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence. The same was held by the Hon'ble Supreme Court of India in the decision of cited as K.N. Beena v. Muniyappan and Another (2001) 8 SCC
458. Thus, on the mere averment of the accused unsubstanti- ated by any cogent evidence, it is not proved that the cheque in question was given as security only and not for any legally enforceable debt/liability. Moreover, even for a moment, if it is believed that the cheque in question was misused by com- plainant by wrongly filling the amount of cheque, as alleged by accused, neither the accused demanded the complaint to return his cheque nor he issued stop payment instructions to his bank or made any police complaint regarding misuse of his cheque. The accused has failed to justify as to why no such steps were taken by him.
29. It is also imperative to mention that from the inception of trial, the accused has taken time to make the payment of Rs. 1,50,000/- and didn't pay a single penny to complainant. It is pertinent to mention that on first day of appearance on 10.12.2019, the accused made statement in writing in court to make the payment of Rs. 1,50,000/- on or before 27.01.2020. Thereafter, again on 27.08.2021, accused stated before court that there are chances of settlement and sometime be given to him to make the payment and settle the matter. Thereafter, again on 27.10.2021, the accused undertook to make the pay- ment of Rs. 1,50,000/- by the month of December. Thus, it is apparent that the accused took repeated adjournments and left Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 15 of 16 no leaf unturned to delay the trial on the pretext of making the payment, without having any defence.
CONCLUSION:
30. On taking a holistic view of the above-mentioned observations, in the considered opinion of this court, the accused has merely paid lip service to his defence and miserably failed to rebut the presumption u/s. 118(a) r/w.
section 139 NI Act by raising a probable defence and has also failed to prove his defence that on the basis of preponderance of probabilities that there is no legally enforceable debt towards the complainant.
31. Accordingly, accused Kuldeep Kumar is convicted of the offence u/s 138 NI Act.
Announced in open court on 26.09.2022 Note: This judgment contains 16 pages and each page has been signed by me.
(Sahil Khurmi) Metropolitan Magistrate (NI Act) Rouse Avenue Court Complex NDD/ND/26.09.2022 Deepak Kumar vs. Kuldeep Kumar CC No: 10760/2019 Page 16 of 16