Delhi District Court
S.K.Saidul Islam vs Inamula Laskar on 29 November, 2019
1
IN THE COURT OF SH. FAHAD UDDIN, METROPOLITAN
MAGISTRATE - 01 (CENTRAL), TIS HAZARI COURTS, NEW
DELHI.
S.K. Saidul Islam
....................Complainant
Versus
Inamula Laskar ....................Accused
CIS. No. 518752/16
PS - Karol Bagh
Under Section 138 NI Act
a) CIS No. : 518752/16
b) Alleged date of commission of : Approx
offence
c) Name of the complainant : S.K.Saidul Islam
d) Name of the accused, and his: Anamul Laskar
R/o H.No.3007, Gali
no.38, Bidanpura,
Karol Bagh, Delhi
e) Offence complained of : Under Section
138 NI Act
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : 29.11.2019
CIS No. 518752/16
S.K.Saidul Islam vs Inamula Laskar
DOJ 29.11.2019 Page no. 1 of 21
2
JUDGMENT
Vide this judgment I shall dispose of the present case filed by the complainant against the accused U/s 138 NI Act. Brief facts necessary for the disposal of the present case may be described as under.
1. It is the case of the complainant that the complainant ( S.K. Saidul Islam) and the accused (Anamul Laskar) were known to each other since long and were working and residing in the same vicinity for the last 20 to 25 years. The complainant stated that the accused had approached the complainant in the month of September, 2008 and requested the complainant to provide a friendly loan of Rs. 80,000/- (Rupees Eighty Thousand Only) as the accused was in need of money. The accused assured the complainant that the accused would refund the money after one month alongwith interest @ 2 % per month on the demand of the complainant. On this assurance of the accused, the complainant gave the amount of Rs. 80,000/- to the accused. However, after availing the said friendly loan, the accused failed to repay the same despite repeated demands and requests made by the complainant. Later on , the accused on persistent requests made by the complainant, issued a cheque bearing no. 551156 dated 31.12.2008 for Rs. 80,000/- drawn on Bank of India, Karol Bagh Branch, New Delhi-05 with the assurance that the same would be honoured on its presentation. The accused further assured the complainant to pay a sum of Rs. 4,800/- being interest @ 2 % per month from 01.10.2008 till 31.12.2008 after sometime as the accused was facing financial difficulties. The complainant stated that when the said cheque was presented by the complainant in his bank for encashment three times i.e. on 31.12.2008, 12.01.2009 and finally on 28.01.2009, to the utter surprise and dismay of the complainant, the CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 2 of 21 3 same was returned back unpaid with the remarks "funds insufficient" on all the three times and finally on 30.01.2009 vide return memo issued by the bank, the intimation was received by the complainant on 02.02.2009 i.e. when the memo of the bank of the complainant was received by him. Thereafter, the complainant contacted the accused on all the three times when the cheque was received unpaid by the banker of accused and apprise the accused about the dishonour of the cheque, but the accused avoided the issue on one ground or the other.
2. The complainant stated that the accused issued the cheque with malafide intention and is liable to refund the money to the complainant. The complainant also got issued a legal notice dated 03.02.2009 through his counsel which was duly served upon the accused. Accused also replied to the legal notice by making a false story and despite receipt of the legal notice, the accused had not made the payment of cheque amount of Rs. 80,000/- and in this manner the accused committed the offence U/s 138 NI Act. Hence, the present case before the court.
3. The complainant led pre-summoning evidence. Vide order dated 03.03.2009, cognizance of the offence U/s 138 NI Act was taken and the accused was summoned. On appearance of the accused and compliance of the provisions of Section 207 Cr.P.C., notice U/s 251 CrPC for the offence U/s 138 NI Act was framed against the accused on 30.05.2011. The accused pleaded not guilty for the offence U/s 138 NI Act and claimed trial. In his plea of defence, the accused stated that the complainant had asked and requested for friendly loan from him. On his request, the accused had issued two cheques, one of the cheque is cheque bearing no. 551142 dated 08.08.2008 of Rs. 1,00,000/- and other cheque bearing no. 551156 dated 31.12.2008 of CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 3 of 21 4 Rs. 80,000/- both drawn on Bank Of India, Karol Bagh. The cheque bearing no. 551142 dated 08.08.2008 of Rs. 1,00,000/- was encashed by the complainant in his account on 11.08.2008. He is under no liability in respect of the cheque in question and the said cheque has been misused by the complainant.
Prosecution/ complainant's evidence:-
4. To prove his case against the accused, the complainant relied upon the following documents:
I) Original cheque bearing no. 551156 dated 31.12.2008 as Ex. PW-1/1.
ii) Three deposit slips are Ex. PW-1/2, Ex. PW-1/3 and Ex. PW- 1/4.
iii) Return memos dated 03.01.2009, 13.01.2009 and 30.01.2009 are Ex. PW-1/5, Ex. PW-1/6 and Ex. PW-1/7.
iv) Legal notice dated 03.02.2009 as Ex. PW-1/8.
v) Postal receipts and AD cards are Ex. PW-1/9, Ex. PW-1/10, Ex. PW-1/11, Ex. PW_1/12 and Ex. PW-1/13.
vi) Reply to the legal notice dated 03.02.2009 is Ex. PW-1/14.
5. To prove his case against the accused, the prosecution/ complainant got examined only one witness i.e. CW-1 S.K. Saidul Islam (complainant himself) who adopted his pre-summoning evidence tendered by way of affidavit on 03.03.2009 which is Ex. CW-
1. In his evidence by way of affidavit Ex. CW-1, the complainant reiterated all the facts as stated in the complaint and mentioned above as such the same are not being repeated herein for the sake of brevity.
6. However, in his cross examination, CW-1 stated that he is gold smith and is running his business from Karol Bagh, New Delhi. He stated that he personally know the accused for last 6 years. His advocate had drafted the legal notice, his complaint and other documents as per his instructions and he is well aware about the contents of the same. He stated that it is correct that his counsel CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 4 of 21 5 before sending the legal notice required in the present case or before filing the present complaint had explained and narrated the contents of the same to him. In his further cross examination, on a question asked by the counsel for accused, CW-1 stated that he had personally known the accused for the last 6 years, however, the accused basically belongs to his native place Bengal that is why the accused was acquainted to him for the last 20-25 years. He stated that he did not know the address of accused in Bengal. The distance between his village and the residence of the accused was about 100 Kilometers and it takes 5-6 hours to reach there by train. He never visited the residence of accused at Bengal. He stated that accused had taken loan from him around three times. First loan was taken by the accused in the year 2008 but he did not remember the month. Second time the accused took the loan in the same year but he did not remember the month and thirdly the accused had taken loan in the year 2008 but he did not remember the month. CW-1 stated that nobody was present at the time of borrowing the loan. The cheque was handed over to him after 15 days by the accused. No written or oral agreement between him and accused was executed/ arrived in this regard. Again said the loan was borrowed @ 2 % per month. Last time the cheque was dishonored on 27.01.2009 and the bank slips are annexed with the file.
7. In his further cross examination, CW-1 stated that in the last he had sent the legal notice but he did not remember the date. He did not remember when the return memo of dishonored cheques was received from bank by him. In his legal notice and complaint as well as in his affidavit in evidence, it has been mentioned that the cheque in question was finally dishonoured on 30.01.2009 vide the return memo of Bank. He stated that the date which he mentioned in legal notice, his complaint and affidavit i.e. 30.01.2009 is correct. He is well CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 5 of 21 6 aware about the Ex. PW-1/6 and it bears the date 13.01.2009 and it is a cheque return memo and the said memo was received by him on the second time when his cheque got bounced, not the third and final return memo. He stated that it is correct that third return memo dated 30.01.2009 has not been filed by him on record alongwith the present complaint. However, a receipt Ex. PW-1/4 bears the date 28.01.2009 without mentioning the cheque number.
8. In his further cross examination, CW-1 stated that the document Ex. PW-1/5 and Ex. PW-1/7 are the return memos and does not belong to him and have not been filed by him before this court. He stated that these documents were filed by his counsel on his behalf. He further stated that at the time of dishonor of the cheque in question, the bank authority had given him only the dishonored cheque and the return memo was not issued to him by the bank authority. In a question asked by the counsel for accused as to whether the cheque in question was dishonored on 29.01.2009, the complainant replied that he did not know when the cheque was dishonored, the bank authority will answer the same. Another question was asked by Ld. Counsel for accused to CW-1 as to when the cheque in question had already been dishonored on 29.01.2009 and the legal notice was sent on behalf complainant ,posted on 03.02.2009 and as such the legal notice was time barred. The CW_1 replied that he did not know. In his further cross examination, CW-1 stated that it is correct that Ex. CW- 1/14 i.e. reply to the legal notice has been filed by him but he did not know that the said reply was served to him or not. CW-1 stated that it is correct that since 11.09.2007 to 26.10.2008, the accused was tenant of his wife Shamina Begum in property no. 3007, Gali No. 38, Beodan Pura, Karol Bagh, Delhi. He stated that it is correct that the said property was sold out by his wife to the accused on 27.10.2008. He stated that it is further correct that there is no dispute between CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 6 of 21 7 him and his wife and they both are residing together since their marriage. His wife is not running any business and is the housewife. He stated that it is correct that his wife had received the entire sale consideration amount of the said property. It is correct that sale deed Ex. CW-1/D1 was executed between his wife and accused and he stood as witness to the sale deed. He denied the suggestion that the entire sale consideration was given in cash and volunteered that two cheques were also given with sale deed as aforesaid at point 'A' where entire sale consideration was stated to be in cash. He denied that he had asked the accused for friendly loan of Rs. 1,80,000/-. He stated that it is correct that he had received cheque bearing no. 551142 dated 08.08.2008 of Rs. 1,80,000/- drawn on Bank of India, Karol Bagh and the said cheque was also encashed in his account. He denied the suggestion that the cheques were given to him in presence of one Ismail. He stated that it is correct that he was not having any written agreement to prove that accused had ever asked him for loan. He denied the suggestion that he had misused the cheque Ex. PW-1/1. He further denied the suggestion that the accused is not liable to pay the cheque amount with interest, or that he had forged the document and misused the cheque in question on the basis of which he filed the present complaint against the accused. No other material fact was deposed to by CW-1.
9. Thereafter, on completion of evidence of CW-1, prosecution/ complainant's evidence was closed on 12.11.2014 and the matter was fixed for recording of statement of accused U/s 313 Cr.P.C.
Statement of Accused:
10. On 02.02.2015, the statement of accused U/s 313 Cr.P.C. r/w Section 281 Cr.P.C was recorded whereby all the incriminating evidence was put to the accused. In his statement recorded u/s 313 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 7 of 21 8 Cr.P.C. r/w Section 281 Cr.P.C, the accused stated that the complaint has been filed against him to extort money. CW-1 has deposed against him falsely. The complainant had taken a loan of Rs. 1,80,000/-. He had given two cheques of Rs. 1,00,000/- and Rs. 80,000/- out of which cheque of Rs. 1,00,000/- was encashed by the complainant. Shop No. 3007, Gali No. 38, Beaodan Pura , Karol Bagh was thereafter sold by the wife of complainant to him but the cheque of Rs. 80,000/- was not returned and was misused. The accused wish to lead defence evidence.
Defence Evidence:
11. To disprove the case of the complainant, DW-1 Anamul Laskar (accused) got himself partly examined U/s 315 Cr.P.C on 22.11.2016. However, despite repeated opportunities given, the accused failed to lead any further defence evidence and vide order 28.04.2018, defence evidence was closed by the court.
Final arguments.
12. Final arguments were addressed by Ld. Counsel for complainant as well as Ld. Counsel for accused. In the final arguments addressed by Ld. Counsel for complainant, the counsel for complainant submitted that on the basis of evidence (oral as well as documentary), the complainant has been able to prove his case against the accused beyond reasonable doubt and the accused be convicted for the offence punishable U/s 138 NI Act and be punished in accordance with law. On the other hand, Ld. Counsel for accused submits that no case U/s 138 NI Act is made out against the accused and the accused be acquitted for the said offence.
Submissions heard. Record perused.
CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 8 of 21 9 Findings:
13. On the basis of the arguments addressed by the Counsels for the parties and the evidence (oral as well as documentary), the findings of this court are as under:-
(i) The allegations against the accused are that in discharge of legally enforceable liability, the accused issued a cheque bearing no. 551156, dated 31.12.2008, Ex.PW-1/1, drawn on Bank of India, karol Bagh Branch, New Delhi in favour of the complainant , which was dishonoured by the bank on presentation due to reason " Funds Insufficient", vide memos dated 03.01.2009,13.01.2009 & 30.01.2009 and despite issuance of legal notice dated 03.02.2009 and service thereof, the accused failed to pay the amount of Rs 80,000/- to the complainant within the stipulated period and thus committed an offence punishable U/s 138 NI Act 1881.
Section 138 NI Act may be reproduced as under:-
138. Dishonour of cheque for insufficiency etc. of funds in the account.-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 provision of this Act, be punished with imprisonment for [a term which may be extended to two years] 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 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 9 of 21 10 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 in due 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 cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make 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 purposes of this section "debt or other liability" means a legally enforceable debt or other liability.
Section 142 N.I Act 1881 may also be reproduced as under:-
142. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
14. The object underlying Section 138 of the Negotiable Instruments Act is to promote and inculcate faith in the efficacy of banking system and its operations giving credibility to Negotiable Instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 10 of 21 11 which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing up of such a negotiable instrument.
Following acts constitute an offence under section 138:-
(I) Drawing of the cheque ;
(ii) Presentation of the cheque to Bank,
(iii) Returning the cheque unpaid by the drawee Bank,
(iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and,
(v) Failure of the drawer to make payment within 15 days of the receipt of the notice.
15. In the case of "O.P. Chirania vs Dir. Of Lotteries And Deputy ... on 12 March, 1998"1 , the Hon'ble Delhi High Court observed in para no. 9 as under:-
It is to be noticed that the mere issuance of a cheque is not an offence. The offence is committed and cause of action under section 138 read with section 142 arises when in spite of the demand notice by the payee issued within fifteen days of the receipt of the intimation by him from the bank regarding Dishonor of the cheque on account of the reason of insufficiency of funds in the account of the drawer, payment is not made by the drawer to the payee within the period stipulated in section 138(c), i.e, within a period of fifteen days of the receipt of the said notice by the drawer. From the expiry of these fifteen days complaint is to be made within one month. In other words, section 138 of the Act provides an opportunity to the drawer of a Dishonored cheque to pay within fifteen days of the receipt of a written notice sent by or on behalf of the drawee/ payee informing 1 Equivalent citations: 1998 IVAD Delhi 197, 1998 (46) DRJ 537.CIS No. 518752/16
S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 11 of 21 12 him that the cheques had been Dishonored. If payment is still not made by the drawer to the drawee within fifteen days of the receipt of the notice he commits an offence giving rise to a cause of action to the drawee to file a complaint before the court of a Metropolitan Magistrate within thirty days thereafter. But a drawee after giving notice of Dishonor of the cheque to the drawer may not file a complaint within one month of the expiry of fifteen days of the receipt of such notice by the drawer. The payee can again present the cheque to the bank a second time and in case of the same being returned unpaid, he can once again give a notice to the drawer for payment. In the event of the drawer not making the payment within the prescribed period of time the payee can file a complaint, or may not file a complaint and try again to recover the amount by presenting the cheque a third time, and so on and so forth provided this is done within the period of the validity of the cheque or within six months of the date on which the cheque is drawn, whichever is earlier. Chapter XVII of the Act does not preclude the creation of successive causes of action on the basis of one and the same cheque. After completion of one cause of action the payee or holder in due course can have a fresh cause of action in accordance with law so long as the cheque remains unpaid and a complaint is filed within the period prescribed on the basis of the fresh cause of action so created. The Full Bench of Kerala High Court in M/s. S.K.D. Lakshmanan Fireworks Industries and another Vs. K.V. Sivarama Krishnan and another, 1995 Crl.L.J. 1384, while interpreting section 138 read with section 142 of the Act, held as follows :-
"While considering the above question it is relevant to note that in law a cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of the cheque or within the period of its validity whichever expires earlier. Such CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 12 of 21 13 repeated presentation even after Dishonor at each time may be either voluntary or at the instance of the drawer. Even after such repeated Dishonor it is open to the payee or holder in due course to defer further action based on Dishonor. It may also be open to the payee or holder in due course to take further action to complete the cause of action as provided in clauses (b) & (c) of the proviso to S. 138 and not to file a complaint within the time specified under S. 142(b) of the Act for his own reasons. In that event, obviously, the payee or holder in due course will lose his right to prosecute the offender for the offence he has already committed by defaulting payment as demanded by the notice issued under clause (b) of the proviso to S. 138 of the Act. But, so long as the cheque remains unpaid the payee or holder in due course will certainly be entitled to present the cheque again. If the cheque is again Dishonored, no provision in Chapter XVII of the Act would expressly preclude the payee or holder in due course from issuing a notice of demand under clause (b) of the provisio to S. 138 of the Act and in case of default in making payment as demanded from filing a complaint on the basis of the fresh cause of action which accrues to him thereby for a second time. If such a complaint is filed and the complainant is able to establish all the ingredients of the offence and satisfies all other conditions required to be complied with for filing a complaint, it may not be possible to hold on the basis of any express provision in the Act that the complaint is not legally maintainable."
16. Further in the case of "Mallappa Sangappa Desai vs Laxmanappa Basappa Whoti " on 20 August, 19942, the Hon'ble Karnataka High Court pleased to observe that :- " Every time a cheque is presented and it is returned for insufficiency of funds the payee or the holder gets a cause of action to initiate the necessary steps for 2 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 13 of 21 14 prosecuting the drawer by issue of notice. It is left to the payee to decide whether he would make use of the cause which arises when the cheque is returned with endorsement of insufficiency of funds and initiate steps which may ultimately result in prosecution or to wait for some time to enable the drawer to arrange for sufficient funds and represent the cheque again if the period of validity of the cheque is not over."
17. In the present case also the complainant has allegedly presented his cheque for encashment multiple times (three times). In his evidence by way of affidavit , the complainant stated that the complainant and accused were known to each other and were working in the same vicinity for the last 20-25 years. In the month of September 2008, the accused had approached the complainant to give a friendly loan of Rs 80,000/-. The complainant accordingly gave the said amount of Rs 80,000/- to the accused. To repay the said amount of Rs 80,000/-, the accused issued a cheque bearing no. 551156 dated 31.12.2008 for Rs 80,000/- drawn on Bank of India, Karol Bagh Branch, New Delhi-05 with the assurance that the same would be honoured on its presentation. However, when the said cheque was presented for encashment three times, the same was returned back unpaid with the remarks "Insufficeincy of Funds" on all the three times vide return memos Ex.PW-1/5(dated 03.01.2009) , Ex.PW-1/6 (dated 13.01.2009) and Ex.PW-1/7 (30.01.2009) . The complainant accordingly issued a legal notice dated 03.02.2009 to the accused and the accused was called upon to make the payment of the dishonoured cheque within 15 days from the receipt of the said legal notice. But despite the receipt of the said legal notice, the accused failed to make the payment of the aforesaid cheque amount of Rs 80,000/- and in this manner committed the offence punishable U/s 138 N.I Act. Ex.PW-1/1 is the original cheque bearing no. 551156 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 14 of 21 15 dated 31.12.2008 for an amount of Rs 80,000/- drawn on Bank of India , Karol Bagh Branch, allegedly issued by the accused. Ex.PW-1/2 to Ex.PW-1/4 are the three deposit slips for presentation of cheque for encashment by the complainant . Ex.PW-1/5 is the return memo dated 03.01.2009, Ex.PW-1/6 is the return memo dated 13.01.2009 and Ex.PW-1/7 is the third cheque return memo dated 30.01.2009. Ex.PW- 1/8 is the legal notice dated 03.02.2009 issued by the complainant to the accused regarding dishonor of the aforesaid cheuqe and calling upon the accused to pay the cheque amount within 15 days of the receipt of the said notice. Ex.PW-1/9 to Ex.PW-1/13 are the postal receipts and registered AD cards showing sending of notice by the complainant to the accused. Ex.PW-1/14 is the reply to the legal notice given by the accused whereby the accused has denied his liability to pay the cheque amount to the complainant.
18. At this stage , it may be noted that the accused has raised an objection regarding the documents Ex.PW-1/5 and Ex.PW-1/7 being forged and fabricated and not issued by the bank authority in the cross examination of CW-1. Ex.PW-1/5 , Ex.PW-1/6 and Ex.PW-1/7 are the three cheque return memos relied upon by the complainant in the present case to prove the fact of dishonor of cheque in question. Ex.PW-1/5, Ex.PW-1/6 and Ex.PW-1/7 are dated 03.01.2009, 13.01.2009 and 30.01.2009. According to the complainant the cheque was finally dishonoured on 30.01.2009 and thereafter the legal notice dated 03.02.2009 was issued by the complainant to the accused for dishonor of cheque in question. But Ex.PW-1/5 and Ex.PW-1/7 are not duly stamped or signed by the bank authority and as such it is difficult to rely upon them in the present case to prove the fact of dishonour of cheque in question on the date 30.01.2009 as alleged by the complainant. However, In his examination CW-1 has also relied upon Ex.PW-1/6 i.e. cheque return memo dated 13.01.2009 and in his cross CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 15 of 21 16 examination CW-1 has specifically stated that "he is well aware about Ex.PW-1/6 and it bears the date 13.01.2009 and it is a cheque return memo and the said memo was received by him on the second time when his cheque was bounced not the third and final return memo". Ex.PW-1/6 is a computer generated receipt which shows that cheque no. 551156 for Rs 80,000/- got dishnoured on 13.01.2009 due to 'insufficiency of funds' in the account of the accused. Though in his evidence by way of affidavit the complainant has stated that the cheuqe in question was finally returned unpaid vide return memo dated 30.01.2009, the same cannot be relied upon for the aforesaid reason. However, even if date of dishonor of the present cheque bearing no. 551156 is taken as 13.01.2009, (i.e. second time when the cheque was presented), it seems that the legal notice dated 03.02.2009 was issued within the prescribed time of 30 days to the accused and the accused failed to pay the amount for the dishonor of cheque within 15 days of the notice. Ex PW-1/9 to Ex. PW-1/13 are the postal receipts as well as the regd. AD Cards which show that the legal notice dated 03.02.2009 was sent to the accused and was replied by the accused vide reply dated 19.02.2009 Ex.PW-1/14, whereby the accused denied his liability to pay the amount of cheque to the complainant.
19. It is relevant to note that nowhere in the present case the accused has denied his signatures on the cheque in question. Even in his defence pleas raised at the time of framing of notice U/s 251 Cr.P.C and recording of statement of accused U/s 313 Cr.P.C, the accused has stated that the cheque was issued by him, bears his signatures and he had received the legal notice. The defence of the accused is that the complainant had asked and requested for a friendly loan from him. On his request he had issued two cheques i.e. cheque bearing no. 551142 dated 08.08.2008 for Rs 1,00,000/- and other cheque bearing no.
CIS No. 518752/16S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 16 of 21 17 551156 dated 31.12.2008 for Rs 80,000/- both drawn on bank of India, Karol Bagh as friendly loan in favour of the complainant. The cheque bearing no.551142 dated 08.08.2008 for Rs 1,00,000/- was encashed by the complainant in his account on 11.08.2008 and he is under no liability in respect of the cheque in question . Thereafter shop no. 3007, Gali no 38 , Bedonpura, Karol Bagh was sold by the wife of the complainant to the accused but the cheque of Rs 80,000/- was not returned and has been misused. In the case of "Uttam Ram v. Devinder Singh Hudan & Anr." 3 , the Hon'ble Supreme Court of India pleased to observe that:-
A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Sections 118(a) and 139 read as under:
"118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;....
139. Presumption in favour of holder.--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 the discharge, in whole or in part, of any debt or other liability."
20. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist 3CRIMINAL APPEAL NO. 1545 OF 2019 (ARISING OUT OF SLP (CRL) NO. 3452 OF 2019).
CIS No. 518752/16S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 17 of 21 18 or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
21. Section 139 of the Act is an example of a reverse onus clause CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 18 of 21 19 that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof."
22. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in "Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee", (2001) 6 SCC 16 : 2001 SCC (Cri) 960].
23. 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 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 19 of 21 20 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. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
24. Thus, if the present case is seen in the light of the aforesaid position of law, it is clear that the accused has not led any evidence to prove his defence that the cheque was misused by the complainant as stated by the accused in his plea of defence at the time of framing of notice U/s 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C . Only one witness DW-1 was partly examined on behalf of the accused and his opportunity to lead further DE was closed by the court vide order dated 28.04.2018 due to non-payment of cost. Thus, whatever testimony of DW-1 is on record is incomplete and not tested by cross examination and hence cannot be relied upon in his defence in the present case. On the other hand , the Complainant/CW-1 has been able to prove that the cheque in question bearing no. 551156 dated 31.12.2008 for an amount of Rs 80,000/- was issued by the accused and bears his signatures. The said cheque was dishonoured on 13.01.2009 as shown by Ex, PW-1/6 for the reason " Insufficiency . of funds". The complainant had issued a legal notice dated 03.02.2009 to the accused informing him about dishonor of the cheque within prescribed period of 30 days and the accused failed to make the payment within 15 days of the receipt of notice. Even though the CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 20 of 21 21 testimony of CW-1 has some anomalies being a layman , however, the documentary evidence placed on record by the complainant collectively show issuance of cheque in question by the accused (ExPW-1/1), its dishonor due to insufficiency of funds in the account of accused (Ex. PW-1/6 dated 13.01.2009) and non-payment by the accused even after issuance of legal notice dated 03.02.2009.
25. Hence, after appreciation of the evidence, oral as well as documentary and submissions made on behalf of the parties, in the considered opinion of this Court, the complainant has been able to prove its case against the accused beyond reasonable doubt. All the ingredients of section 138 NI Act are fulfilled and the accused is held guilty of the commission of the offence U/s 138 NI Act and is convicted accordingly.
Judgment pronounced in the open Court.
Put up for order on sentence on 03.12.2019 at 02:00pm.
Digitally signed FAHAD by FAHAD UDDIN UDDIN Date: 2019.12.03 16:32:21 +0530 Announced in the open court (FAHAD UDDIN) today itself Metropolitan Magistrate-01 (Central), Tis Hazari Courts, Delhi/29.11.2019 CIS No. 518752/16 S.K.Saidul Islam vs Inamula Laskar DOJ 29.11.2019 Page no. 21 of 21