Delhi District Court
Pramod Kumar vs Lalit Kumar on 24 September, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
PRAMOD KUMAR VS LALIT KUMAR
CC No. 470681/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 470681/2016
(2) Name of the complainant : Pramod Kumar
s/o Sh. Budh Singh
R/o House No. 72, K-1,
Gali No. 18, Sangam Vihar,
New Delhi-110080
(3) Name of the accused, : Lalit Kumar
parentage & address S/o Sh Kewal Chand
R/o House No. 210, Gali No. 18,
Sangam Vihar,
New Delhi-110080
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTED
(7) Date of Institution : 08.01.2016
(8) Date on which reserved for
judgment : 17.09.2018
(9) Date of Judgment : 24.09.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 1 of 16 2 that complainant gave a friendly loan of Rs4,12,000/- and accused handed over a blank signed cheque along with acknowledgement on stamp paper. Thereafter, on demand of complainant to return the amount, complainant on instructions of accused got the cheque filled and the cheque bearing no. 002521 for a sum of Rs4,12,000/- dated 08.09.2015 drawn on Jamia Cooperative Bank, branch Sangam Vihar, New Delhi (hereinafter "the cheque in question"), when presented as per assurance given by the accused, was returned unpaid with remarks "Funds Insufficient" vide memo dated 22.09.2015. Thereafter, on failure of accused to pay the said cheque amount, a legal demand notice dated 03.10.2015 was sent to the accused which was deemed to be duly served upon the accused. Thereafter, again on request of accused, the complainant presented the cheque in question with his banker which was again returned dishonoured with remarks "Funds Insufficient" vide memo dated 01.12.2015. Again a legal notice of demand dated 05.12.2015 was sent to the accused which was deemed to be duly served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/A was filed by the complainant. In his affidavit of evidence ExCW1/A, the complainant reiterated all the averments made in his complaint and relied on documents which are original of declaration acknowledgment dated 09.01.2015 ExCW1/1, original cheque in question Ex. CW-1/2, its return memos Ex. CW-1/3 & Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 2 of 16 3 4, office copy of legal notices Mark A & Mark B, speed post receipt Ex. CW-1/7 and the tracking report of the said speed post ExCW1/8.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 12.01.2016.
3. Accused appeared pursuant to initiation of proceedings U/s 82 CrPC and notice U/s 251 CrPC was served upon the accused vide order dated 11.01.2017 to which the accused pleaded not guilty and claimed trial. Accused stated that he had no liability towards the complainant. Accused further stated that the cheque was issued as security cheque which was given to the complainant at the time of starting of committee of Rs01 lakh in the year 2013 and there were 4-5 installments of the said committees remained due towards the complainant and then under the pressure, the complainant had taken the signed stamp paper from him in front of 3-4 persons for almost 1 ½ years back. Accused stated that he had not received any legal notice. Accused further stated that he had no legal liability to pay the cheque amount to the complainant.
4. Thereafter, upon oral request of accused U/s 145(2) NI Act to cross examine complainant and his witnesses, the accused was given an opportunity to cross examine the complainant and his witnesses, vide oder dated 11.01.2017.
Complainant examined himself as CW-1 in his evidence.
Complainant was duly cross examined by Sh. Ashwani Tyagi, Ld. Counsel for the accused. No other complainant witness was produced by the complainant.
Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 3 of 16 4 Thereafter, CE was closed vide order dated 01.11.2017.
5. Thereafter, the plea of the accused Lalit Kumar u/s 313 r/w 281 CrPC was recorded vide order dated 12.03.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused denied taking of friendly loan from the complainant. Accused stated that he had issued cheque for the purpose of security towards the committee as the complainant was running committee of Rs 01 lakh. Accused further stated that he had only signed the cheque and remaining particulars were not filled by him. Accused further stated that he had never received any legal notice nor he had asked the complainant to represent the cheque. Accused further stated that he had no liability to pay the cheque amount to the complainant.
Accused further expressed his desire to lead defence evidence on his behalf.
6. Thereafter, matter was listed for DE. Accused examined himself as DW-1 and he was duly cross examined by Sh. Devender Singh, Ld. Counsel for the complainant. No other defence witness was produced by the accused, therefore, vide separate statement of accused, DE was closed vide order dated 14.08.2018 and matter was fixed for final arguments.
7. Sh Devender Singh, Ld counsel for complainant and Sh Ashwani Tyagi, Ld counsel for accused have addressed the final arguments.
By way of oral arguments, Ld counsel for complainant has reiterated the facts mentioned in the complaint and further it has been argued Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 4 of 16 5 on behalf of complainant that the testimony of complainant has remained unrebutted and no major contradiction is there in the testimony of the complainant. Further, during cross examination, accused admitted the relationship between accused and complainant, he also admitted issuance of cheque in question and signatures on the acknowledgment cum declaration ExCW1/1 and therefore, the onus to rebut the presumptions shifts upon the accused. The accused has not disclosed name of other committee members nor any other member of committee has been called by the accused to corroborate his plea that complainant was running a committee. Further, no notice has been served by the accused upon the complainant to return the security cheque as alleged by accused nor accused has issued stop payment instructions to his banker. Further, no police complaint has been lodged by the accused till date regarding the pressure as alleged by him. This shows that defence of accused is sham and is liable to be discarded. The testimony of CW-1 has remained unrebutted. Thus, the accused has failed to prove his defence while the complainant has proved its case beyond reasonable doubts. Therefore, accused is liable to be convicted. Counsel for the complainant has relied upon the judgment of C C Alavi Haji vs Palapetty Muhammad & Anr decided on 18.05.2007.
On the other hand, it has been argued by the Ld counsel for the accused that neither in the legal notice nor in the complaint nor in evidence, complainant has ever mentioned any date of demand of loan or the date when loan has been given. Further, complainant has not explained any source of income throughout the trial from where complainant arranged amount of Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 5 of 16 6 Rs4,12,000/-. Further, complainant has not produced his friends and uncles as CWs from whom allegedly complainant has arranged the money to give the loan to the accused. Further, in para no. 5 of the complaint, complainant has admitted that blank signed cheque has been given by the accused and in para no. 7 of the complaint, complainant is mentioning about the complaint lodged against accused but till date, no such complaint has been produced on record by the complainant to prove that complainant is telling truth. Further, as per averments of para no. 8 of the complaint, complainant got the previous cheque filled. But when complainant had the receipt/acknowledgment and also the blank signed cheque and complainant had already filed the complaint against the accused, then why the complainant gave cheque to the accused to fill the particulars. Further, admittedly, complainant was son of tenant of accused and accused was owner, then it is highly improbable that an owner would take loan from the tenant. Further, as per legal notice, accused asked for loan of Rs4.50 lacs but this averment is missing in the present complaint nor there is any mention of acknowledgment in legal notice which shows that the acknowledgment is forged & fabricated. Further, as per legal notice, cheque was given on 08.09.2015 and not on 09.01.2015 as mentioned in the complaint. Further, there is no reason coming forward as to why the details of cheque in question were not mentioned in the acknowledgment ExCW1/1. Further as per ExCW1/1, when the loan was given for 12 months, then why complainant made a complaint prior to expiry of time given and why accused would issue cheque before expiry of 12 months ie in September 2015 and why cheque will be Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 6 of 16 7 presented in the same month ie in September 2015 itself. Further, complainant admitted during cross examination that accused had not filled the cheque in question. Further as per tracking report ExCW1/8, the item has been delivered in Lucknow while the address of accused is of Sangam Vihar which proves that accused has not received the legal notice. Further, during cross examination, complainant admitted that his annual income is Rs2.40 lacs. A person earning Rs2.40 lacs per month is giving a loan of Rs4.12 lacs to the owner which itself is improbable. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted. Counsel for the accused has relied upon the judgments of :
a. Gajanan Lobaji Kitturkar vs Sumati S Bhandari & Anr. Crimimal Appeal No. 19 of 2012 b. Manjit Singh vs Kanta Verma 2015 (2) RCR (Civil) 688 c. Shanku Concretes Pvt Ltd vs State of Gujarat d. John K Abraham vs Simon C Abraham & Another e. K Prakashan vs P K Surenderan Criminal Appeal No. 1410 of 2007 f. Vijay vs Laxman & Anr. Criminal Appeal No. 261 of 2013 g. Krishna Janardhan Bhat vs Dattatraya G Hegde Criminal Appeal No. 518 of 2006
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 7 of 16 8 banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, the issuance of cheque in question and its dishonour are not in dispute. Accused has taken the defence that he has not received the legal notice and he did not have the legal liability to pay the cheque amount to the complainant.
11. Now, this Court shall deal with the defences of the accused one by one.
11A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 05.12.2015 Mark A. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 05.12.2015 Mark B was sent to the accused through speed post on 05.12.2015, receipt of which is Ex.CW1/7 and tracking report is ExCW1/8. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 8 of 16 9 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A4. Now, the accused has taken plea that as per tracking report ExCW1/8, item has been delivered in Lucknow while the address of accused is of Sangam Vihar. Perusal of record shows that on the receipt ExCW1/7, the address of accused has been mentioned and accused has nowhere taken plea that this is not the correct address of accused. The accused cannot be given benefit of any lapses on part of postal authorities. Further, in the present case, accused has been served on the same address which has been mentioned in the postal receipt ExCW1/7. Thus, in view of the above said dictum of the Hon'ble Apex Court and above discussion, this court holds that the legal notice dated 05.12.2015 Mark B was served on the accused.
11B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. Admittedly, the complainant is son of tenant of accused. It is the Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 9 of 16 10 case of complainant that he had given loan of Rs.4,12,000/- to the accused for short period and accused gave acknowledgement on 09.01.2015 (ExCW1/1) and handed over the blank signed cheque and upon failure of accused to return the amount, when complainant lodged complaint then accused filled the cheque in question which on presentation got dishonoured twice.
On the other hand, as per accused, he had given security cheque to the complainant which was taken by complainant at the time of starting committee of Rs01 lakh in the year 2013 and when 4-5 installments of the committee were due, then under the pressure, complainant took his signatures on blank signed paper.
B2. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
B3. Now, to prove his defence, accused has cross examined the Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 10 of 16 11 complainant. The complainant deposed that :
"I have studied upto 12th standard. I am running a Milk Shop. My monthly income is about Rs. 22,000/- to Rs. 25000/-. I am not an Income Tax payee............I was the tenant of the father of the accused at the time of the transaction with the accused. It is correct that now the father of the accused had taken Court orders to vacate the tenanted shop. I was the tenant of the said shop for more than 10 years...........I had arranged the loan amount. At first, I had given the amount of Rs. 62,000/- which was lying with me alongwith Rs. 80,000/- which was lying with my father. The remaining amount, I have arranged from my Uncle (fufaji) and my friends. In December 2014, I had given first installment of Rs. 62,000/- which was lying with me alongwith Rs. 80,000/- which was lying with my father. Thereafter, accused again approached me for financial help in January 2015. It is correct that I had not taken any documentary proof with regard to the payment of Rs. 1,42,000/- to the accused in December 2014. The accused had assured that he will be pay the loan amount within one year as his father was going to be retired and from the retirement money, he will pay the dues. Accused again approached in the first week of January. When accused approached me for financial help, I had given some amount to him on the same day and I asked him to come after 2-3 days for receiving the remaining amount. I had given the loan amount in December at my shop and in January at my home. Nobody was present at the time of lending the money. I have brought a stamp paper for the acknowledgment of the loan in the month of January when I had paid the another installment of loan amount. It is wrong to suggest that the cheque in question was received by me for the committee of Rs.01 Lakh in the year 2013. It is wrong to suggest that due to lapse in the committee installment, the said acknowledgment was taken from the accused. The cheque was firstly given as blank and he brought the said single cheque at that time. And later on, when I complaint to the police, he filled the same through his friend and handed over to me. It is correct that the cheque was not filled up before me".
Thus, the testimony of complainant has remained unrebutted and Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 11 of 16 12 no major contradiction has appeared during cross examination. B4. Further, the plea of accused as to financial capacity of complainant is not sustainable in view of the admission of accused that he has written the receipt ExCW1/1. Similarly, the plea of accused as to non production of uncles & friends of complainant from whom complainant had taken loan, as CWs is not sustainable in view of admission of accused. The facts of the judgments relied upon by the accused are not applicable to the facts in hand.
B5. Further, once the accused has admitted his signatures/handwriting on acknowledgement cum receipt ExCW1/1 as well as on the cheque in question, the onus shifts upon the accused to explain why he signed these documents. As per accused, he has signed these documents under pressure but accused has not explained the date, month or year when he was put under pressure to sign these documents. Further, during cross examination, accused himself admitted that :
"It is correct that I have signed the cheque in question. The stamp paper/acknowledgment bears my signature.
(Vol The signatures were obtained forcefully.......................I have not lodged any police complaint regarding obtaining my signature forcefully on the said stamp paper/acknowledgment. I have not stopped the payment of the said cheque".
Thus, accused has failed to produce anything on record to corroborate his plea that he has signed the acknowledgement cum receipt ExCW1/1 and cheque in question under coercion or undue influence or pressure. Further perusal of record shows that the acknowledgement cum receipt ExCW1/1 bears handwriting of accused not only the signatures of accused and it Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 12 of 16 13 bears the date as 09.01.2015 and the cheque was dated 08.09.2015 which was presented on 22.09.2015 and legal notice was served upon accused, thereafter the cheque was presented on 01.12.2015 ie approx. after two months and three weeks from the date of cheque. Thus, clearly accused had sufficient opportunity and cooling time period to take appropriate steps in case he was made to write the acknowledgement ExCW1/1 and sign the cheque in question under pressure. Further, the accused has taken plea that committee of Rs01 lakh was commenced in the year 2013 but accused has neither disclosed the date, month when he had taken amount of committee nor he has disclosed the name of other persons who were members of same committee. Thus, in absence of corroborative evidence to the effect that accused was ever put under pressure, the bald averments of accused that he has written the acknowledgement ExCW1/1 and signed the cheque in question under pressure are of no help to the accused.
B6. Further, as far as plea as to blank signed cheque is concerned, the accused cannot escape his liability only on this ground because no law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 13 of 16 14 handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused had no legal liability on the date of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011 that :
"there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him".
Moreover, there is no reason coming forward why complainant will tell a lie when he is explaining that how at first occasion blank signed cheque was given and later on the cheque in question was filled. Further, no reason is coming forward why complainant would write an arbitrary amount of Rs4,12,000/- in the cheque in question if complainant has not given loan of Rs4,12,000/- to the accused.
Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 14 of 16 15 B7. Further, the accused has taken plea that as per acknowledgement cum receipt ExCW1/1, the loan was given for 12 months, then why complainant filed the complainant prior to elapse of 12 months and why accused would issue cheque for the month of September 2015 ie prior to elapse of 12 months and why complainant has not filed the said complaint on record.
Perusal of acknowledgement cum receipt shows that by the acknowledgement ExCW1/1, the accused is assuring to repay the amount of Rs4,12,000/- taken from the complainant "within 12 months" and not "for 12 months". From the language of ExCW1/1, it is clear that the liability of accused has accrued on the date of writing the acknowledgement and the payment was only deferred with the bracket of 12 months but it does not mean that the payment was to be due only after expiry of 12 months. Therefore, the plea of accused is not sustainable nor the filing of complaint filed by the complainant is so relevant to the present complaint that the entire case of complainant can be discarded only on the ground of non filing of the said complaint.
12. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused Lalit Kumar s/o Sh Kewal Chand guilty for the offence punishable U/s 138 N I Act. Hence, he stands convicted.
13. Let the convict be heard on the quantum of sentence on 25.10.18 Pramod Kumar vs Lalit Kumar CC No. 470681/2016 Page 15 of 16 16 at 02 PM. Copy of the judgment be given dasti to the convict. Digitally signed
PRABH by PRABH
DEEP KAUR
Announced in the open court DEEP Date:
2018.09.25
on 24.09.2018
KAUR 12:38:22 +0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 16 pages and each page bears my signature.
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Pramod Kumar vs Lalit Kumar CC No. 470681/2016
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