Delhi District Court
Mr. Abhishek Kumar vs Ms. Malvika Singh Rana on 17 December, 2015
IN THE COURT OF SH. ASHOK KUMAR, MM07,
SOUTH EAST, SAKET COURTS, NEW DELHI
CC No. 06/2/14
U/S 138 NI Act
Mr. Abhishek Kumar,
R/o 83, Gali No. 3, 1st Floor, Krishna Nagar,
Safdarjung Enclave, New Delhi. .......................Complainant
Versus
1 Ms. Malvika Singh Rana,
Director M/s Karmal Health Tourism Pvt. Ltd.
215, Basement,
Shahpur Jat, New Delhi29.
2 Mr. Kartikey Agnihotri,
R/o G266, Nauroji Nagar.
New Delhi29. .......................... Accused
Offence Complaint of or proved. : Section 138 of Negotiable
Instrument Act.
Plea of accused : Pleaded not guilty
Date of Institution : 07.05.2012
Date of Reserving order : 16.12.2015
Final order : Convicted
Date of pronouncement : 17.12.2015
CC No. 06/2/14 Page 1 of 14
JUDGMENT
FACTS OF THE CASE 1 The facts of the case as per the complaint are that in discharge of their liability the accused had issued a cheque bearing No. 698669 dated 15.02.2012 for Rs. 1,70,000/ drawn on Yes Bank, South Ex. Branch, Delhi. The said cheque on being presented by the complainant to his bank same was got dishonoured vide bank memos dated 15.03.2012 on the ground " Insufficient Funds" and the accused failed to make the payment of said cheques amount despite service of notice dated 21.03.2012.
TRIAL PROCEEDINGS 2 Thereafter, the complainant filed the complaint under Sec. 138 NI Act after the accused failed to make the payment within 15 days of the receipt of legal notice. On the said facts, the accused was summoned and notice under Sec. 138 NI Act was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for CE, the complainant was examined and cross examined by accused and CE was closed on 08.09.2013. Thereafter statement of accused persons was recorded u/s 313 Cr.P.C r/w section 281 Cr.P.C , where the accused Malvika Singh Rana has stated that the cheque is not signed by her and the same was wrongfully taken by the complainant and the cheque was not issued by her. However, she admits that she took loan of Rs. 1.7 lakhs out of which Rs. 60000/ has been paid. She further states that she is ready to pay the remaining amount of Rs. 1.1 lakh. The cheque amount of Rs. 17 lakhs has been CC No. 06/2/14 Page 2 of 14 forged by the complainant. On the other hand accused Kartikey Agnihotri in his said statement has stated that he signed the cheque in question and did not filled the rest of the portion. He also received the legal notice. However, he admits that he took loan of Rs. 1.7 lakhs out of which Rs. 60000/ has been paid. He further states that he is ready to pay the remaining amount of Rs. 1.1 lakh. The cheque amount of Rs. 17 lakhs has been forged by the complainant. Both the accused have preferred to lead evidence in their defence and have examined one Sandeep Ghosh as DW1. Thereafter, final arguments heard. The following documents were relied by the complainant in his evidence :
Complainant proved the following documents in his pre summoning evidence : i Cheque in question given by accused to complainant are Ex.
CW1/C1.
ii Bank returning memo is Ex. CW1/C2.
iii Legal notice is Ex. CW1/C3.
iv The postal receipts and acknowledgment slips are Ex.
CW1/C4 ( collectively).
v. Complainant made to police is Ex. CW1/C5.
vi. Loan agreement is Ex. CW1/C6
3 I have heard Ld. Counsel for the complainant, counsel for accused No. 1
Malvika Singh Rana. Here it is pertinent to note that regarding accused No. 2 Kartikey Agnihotri the opportunity to address arguments was closed by a reasoned order on 15.12.2015 and hence this court proceeds to decide the case also CC No. 06/2/14 Page 3 of 14 against the accused No. 2.
4 Settled Law:
Presumption in favour of the 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.
Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
The ingredients to prove the commission of offence under Sec. 138 NI Act have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that 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 CC No. 06/2/14 Page 4 of 14 whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt ofar the said notice"
5 Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not. 5.1 The first ingredient of the offence stands proved as original cheque is placed on record as Ex. CW1/C1 and issuance of same is admitted by both the accused in their defence plea to the notice framed u/s 251 Cr.P.C. Though only accused No. 2 has admitted the signatures in statement u/s 313 Cr.P.C whereas accused No. 1 Malvika has denied even issuance of the cheque but since she has also admitted issuance of cheque in her defence plea u/s 251 Cr.P.C and in absence of challenging the complainant in cross examination or proving the same in her own defence evidence, the signatures made by her on the cheque in question are CC No. 06/2/14 Page 5 of 14 proved. It is pertinent to mention that she even did not file any application for referral of her signatures to FSL. Also it is pertinent to mention that vide order dated 09.09.2013 the opportunity on her behalf to cross examine the complainant was closed and also vide order dated 09.12.2013, another attempt by her to cross examine the complainant in the garb of filing application u/s 311 Cr.PC was thwarted by a reasoned order by Ld. Predecessor M.M. which stood confirmed in absence of any challenge in the superior court.
It is settled law that a signed cheque by the account holder is a complete instrument and the rest of the portions of the cheque can be filled by the complainant. Hence the first ingredient stands proved.
5.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheque are admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898.
In view of the aforesaid law, the presumption under Sec. 139 NI Act works in favour of the complainant once he files the necessary documents like the dishonored cheque, returning memo, legal notice and delivery proof and avers that the cheque was issued for legally enforceable debt or liability which the accused has failed to pay despite expiry of 15 days of the delivery of legal notice. In the present case not only the presumption u/s 139 N.I. Act that the cheque was issued in favour of the complainant for a legally recoverable debt or liability lies with the CC No. 06/2/14 Page 6 of 14 complainant but also it is pertinent to mention that vide order dated 09.09.2013 the opportunity on her behalf to cross examine the complainant was closed and also vide order dated 09.12.2013, another attempt by her to cross examine the complainant in the garb of filing application u/s 311 Cr.PC was thwarted by a reasoned order by Ld. Predecessor M.M. which stood confirmed in absence of any challenge in the superior court. It is settled law that when despite opportunity, witness is not cross examined then the evidence of that witness is deemed to be admitted by the opposite party. Hence, the case of the complainant went unrebutted that he gave the loan to the accused persons who issued cheque as security and which was dishonoured. However, Ld. Defence counsel took various pleas to show that the complainant has not been able to prove his case. It was submitted that the presumption u/s 139 NI Act in favour of the complainant has only a limited role and still the complainant must prove the financial capacity to extend a huge amount of loan in sum of Rs. 17 lakhs as is his case which was apparently given to the accused persons. It is submitted that only Rs. 1.7 lakhs were due to the complainant but the complainant has committed forgery by adding a extra zero to the figure and in this regard the accused has proved his case by bringing a defence witness Sandip Ghosh who has clearly stated that there was no such agreement which is Ex. CW1/C6 relied by the complainant to repay the loan as it does not contain the signatures of the accused and that the actual loan amount was only around Rs. 1.5 to 2.0 lakhs. Here I would add that DW1 Sandip Ghosh has also deposed that complainant was to make a trip to Tanzania but I fail to understand the relevance of this part of the evidence and what bearing it has CC No. 06/2/14 Page 7 of 14 on the case. In my view evidence of DW1 is irrelevant and does not have any impact on the case. Even this court is not relying on the agreement Ex. CW1/C6 to render the decision as even the complainant in his affidavit Ex. CW1/A submits in para 13 that the agreement has not been signed. All in all there is doubt on the agreement and it has not been duly proved.
However, as stated above, since the accused persons have failed to rebut that the cheque was issued by the accused persons to the complainant from their account in order to discharge legally recoverable debt or liability and further in view of the fact that there are inherent contradictions in the stand taken by the accused persons, there is no force in the contention of Ld. Counsel that financial capacity was not proved. On one hand u/s 251 Cr.P.C accused No. 1 Malvika has taken the defence that she took the loan and issued the cheque in question and on the other hand in explanation u/s 313 Cr.P.C she submits the contradictory which further strengthens the presumption in favour of the complainant. Further the defence plea of the accused that only loan of Rs. 1.7 lakhs was taken does not have any force in view of the same reason as stated above.
In my view it is clear from the aforesaid facts and circumstances alongwith the evidence that the cheque was issued by the accused in favour of the complainant for the discharge of legally recoverable debt or liability. The reason is not only that the evidence of the complainant alongwith the presumption u/s 139 NI Act has went uncontroverted or unrebutted but also the fact that the evidence of the complainant went unrebutted that he gave the loan to the accused persons who issued cheque as security and which was dishonoured. It is settled law that CC No. 06/2/14 Page 8 of 14 when despite opportunity, witness is not cross examined then the evidence of that witness is deemed to be admitted by the opposite party. Not only the accused persons failed to cross examine the complainant but also there are manifest contradictions in their defence plea u/s 251 Cr.PC vis a vis their explanation u/s 313 Cr.P.C as elucidated above. Hence, this ingredient stands proved. 5.3 The third ingredient of the offence is that cheque must be presented to the bank within a period of six months from the date mentioned on it. The cheque is dated 15.02.2012 and is Ex. CW1/C1 and which was returned back unpaid vide bank returning memo Ex. CW1/C2 on 15.03.2015. So it is evident that same was presented for payment within the statutory period of six months. Hence, this ingredient stands proved.
5.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheques were returned unpaid for the reason "insufficient funds ". The original bank returnmemo is Ex CW1/C2 placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/C2 went uncontroverted. Hence, this ingredient stands proved. 5.5 The fifth ingredient of the offence is that the demand notice must be issued to the accused within 30 days of the intimation of dishonour of cheque and same be served upon the accused. As mentioned above both the accused did not cross examined the complainant despite opportunity given. Further accused No. 2 has admitted receipt of legal notice. Hence, it does not lie with the accused to say that they did not receive the legal notice. Receipt of the same is deemed to be proved in CC No. 06/2/14 Page 9 of 14 absence of cross examination of complainant. Hence, this ingredient also stands proved.
5.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. It is clear that the accused did not make the payment within 15 days and that is why the complainant has filed the case. As both the accused did not pay the due amount within the statuary period, this case was accordingly filed by the complainant. Hence, this ingredient also stands proved.
6 In view of the foregoing discussion it is proved that the cheque was presented against a legally recoverable liability in favour of the complainant and the cheque got dishonoured for reason of insufficient funds, the cheque was drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice.
DECISION
7. In view of the aforesaid both the aforesaid accused are convicted for the offence under Sec. 138 NI Act and they be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 17.12.2015 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 06/2/14 Page 10 of 14
IN THE COURT OF SH. ASHOK KUMAR, MM07,
SOUTH EAST, SAKET COURTS, NEW DELHI
CC No. 06/2/14
U/S 138 NI Act
Mr. Abhishek Kumar,
Versus
1 Ms. Malvika Singh Rana,
2 Mr. Kartikey Agnihotri,
ORDER ON POINT OF SENTENCE
Present : Complainant in person with Ld. Counsel Sh. Abhishek Agarwal.
Both Convicts in person.
Sh. Abhishek Vikram, Ld. Counsel for convict Malvika Singh Rana. Sh. M.Ishteyaque Ahmad, Ld. Counsel for the convict Kartikey Agnihotri.
Vide separate judgement, both the accused pesons are convicted for commission of offence under Sec. 138 NI Act for nonpayment of cheque amounting to Rs. 17,00,000/. Here, it is pertinent to mention that I am proceeding to listen on the point of sentence with the consent of both the convicts and their counsels today itself and also to make the order on point of sentence. It is also CC No. 06/2/14 Page 11 of 14 pertinent to mention that perusal of the file will make it clear that procedure of summon trial case has been followed by the Ld. Predecessor MM and this court in the present case. I mention this fact since in summary triable case, no punishment above one year and fine exceeding Rs. 5000/ can be imposed. But in summon trial case punishment as prescribed u/s 138 NI Act can be given if the court thinks it fit in the circumstances of the case.
It is stated by the convict Malvika Singh Rana, aged 31 years that she is working as self employed person in Medical Tourism and the said work entails procuring clients for the hospital who in turn distribute commissions. She has a family consisting of parents who are senior citizens and she submits that she is the only person to take care. The said convict has other sisters also and they are married. It is stated by other convict namely Kartikey Agnihotri, aged 30 years that he is working in a company as Manager and has a family consisting of mother and brother. It is stated that a lenient view may be taken against the convicts while imposing the sentence and convicts be not sentenced to imprisonment. Both the convicts submit that they are not previous convicts in any offence.
In view of the fact that the matter is pending since year 2012 and is more than 2 years old and keeping in view the fact that the cases under Sec. 138 NI Act are unduly clogging the dockets of the courts leading to docket explosion and extraction of judicial time which could have been given to other cases and on the other hand due to the dishonest issuance of cheque, the same is eroding of credibility of such instruments, this court does not deem it necessary to extend the CC No. 06/2/14 Page 12 of 14 benefit of Probation of Offender Act to the accused. Further it is pertinent to note that the convicts were only interested in delaying the trial due to which the public time of the court was wasted and harassment to the complainant was caused. I make this observation because the convicts were casual throughout the trial in pursuing the case. On 09.09.2013, the cross examination opportunity was closed on behalf of the convicts and was made "nil" as they failed to cross examine despite opportunity. On 18.11.2013 application on behalf of convicts u/s 311 Cr.P.C was kept for hearing but again the counsel was not available and further opportunity was granted subject to cost of Rs. 5000/. On 09.12.2013 said application was dismissed. On 30.03.2015 further cost was imposed as the convicts to take steps to complete defence evidence and again on NDOH on 08.05.2015 steps for defence evidence were not taken. On 2.12.2015 again application was filed under 311 Cr.P.C to cross examine the complainant and the same was again dismissed with cost. Further Ld. ASJ also dismissed the revisioin petition in default for non appearance and non prosecution. Such dishonest conduct leads not only to docket explosion which needs to be tackled with a heavy hand but also has resulted in harassment of the complainant by holding up the valuable money belonging to him.
In view of the facts and circumstances, both the convicts are directed to suffer simple imprisonment of two years each and to pay fine jointly and severally of Rs 34,00,000/ (which is the double of the cheque amount) and in default of payment of the same, the convicts shall suffer simple imprisonment for further six months each for offence punishable u/s 138 NI Act. Hence, if CC No. 06/2/14 Page 13 of 14 the fine is not paid then the total period of simple imprisonment is two and half years each. Since the complainant has suffered lot of harassment and has had to launch and sustain prosecution for a long period by denial of legally recoverable amount due to him, hence all of such fine be paid as recompense to him. Copy of judgement and order on sentence be given to both the convicts.
Announced in the open (ASHOK KUMAR)
Court on 17.12.2015 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 06/2/14 Page 14 of 14