Delhi District Court
Rajesh Aggarwal vs State & Anr. 2010, Vii Ad, (Delhi) 576. on 6 June, 2012
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. RO245342007
Sh. P. S Bhatia
S/o late Sh. Pritam Singh
R/o L2/68, Second Floor
New Mahabir Nagar
New Delhi.
............Complainant
V/s
M/s Jagdish Jwellers
through its proprietor
Sh. Jagdish Kumar Bhola
S/o Sh. Hans Raj
R/o 3828, Gali Barna
Sardar Bazar
Delhi11006
...............Accused
JUDGMENT
(1) Name and address of complainant Sh. P. S Bhatia S/o late Sh Pritam Singh R/o L2/68, 2 Floor nd New Mahabir Nagar New Delhi (2) Name of accused, Sh.Jagdish Kumar Bhola parentage and address S/o Sh. Hans Raj R/o 3828, Gali Barna Sardar Bazar, Delhi06 (3) Offence of complained of or proved: 138 N. I Act (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 24.05.2007 1/12 :2: (6) Date of reserve of order 31.05.2012 (7) Final order CONVICTED (8) Date of Final Order 06.06.2012 BRIEF STATEMENT OF THE REASONS FOR THE DECISION The present complaint is filed Under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that the complainant and the accused were having visiting terms and relations for the last many years and the accused has requested to the complainant for a loan of Rs. 1,40,000/ to mee out his legal necessities, on seeing his legal necessity, the complainant advanced the loan of Rs. 1,40,000/ to the accused and accused executed a receipt dt. 25.12. 2006 in token of receiving of the said loan and also executed a receipt of committment of repaying the said loan on the same day and accused issued five cheques (for total sum of Rs. 1,40,000/ bearing no. 162025 dt. 29.01.2007 amounting to Rs. 30,000/, cheque bearing no. 162030 dt. 30.01.2007 amounting to Rs. 25,000/, cheque 657764 dt. 31.01.2007 amounting to Rs. 30,000/, cheque beairng 167303 dt. 27.02.2007 amounting to Rs. 35,000/ and 657763 dt. 28.02.2007 amounting to Rs. 20,000/ all drawn on Bank of Madura Ltd. Karol Bagh, Delhi. That the above said cheques were presented by the complainant in its bank and the same were dishonoured and returned unpaid vide returning Memos Dt. 16.03.2007 with the remarks "Payment stopped by drawer". That the above said cheques were delivered by the accused to the complainant towards the payment of a legally enforceable and unequivocally admittedly liability payable in money. On 12.04.2007, the complainant sent a legal notice to the accused and finally complainant has filed the present complaint case with the submission that accused be summoned, trial and punished accordingly to law.
2/12 :3:
In his pre summoning evidence complainant has examined himself on affidavit as mark X . Complainant reiterated the contents of his complaint and placed on record the the receipt of acknowledgement of the loan is Ex CW1/A and the receipt of committment is Ex CW1/B. Original cheque bearing no. 162025 dt. 29.01.2007 for sum of Rs. 30,000/ whichis Ex CW1/C, cheque bearing no. 162030 dt. 30.01.2007 for sum of Rs. 25,000/ whichis Ex CW1/D, cheque beairng no. 657764 dt. 31.01.2007 for a sum of Rs. 30,000/ which is Ex CW1/E, cheque bearing no. 167303 dt. 27.02.2007 for sum of Rs. 35,000/ which is Ex CW1/F and cheque bearing no. 657763 dt. 28.02.2007 for sum of Rs. 20,000/ which is Ex CW1/G , all cheques drawn on Bank of Madurai Limited, Karol Bagh, New Delhi., all original cheques returning memos dt. 16.03.2007 which are Ex CW1/H to Ex CW1/L wherein it has been stated that cheques in question are dishonoured due to "payment stopped by drawer "
and , legal demand notice dated 12.04.2007 which is Ex. CW1/M and postal receipts as Ex.CW1/N and EX CW1/O, UPC which is EX CW1/P , Regd AD which are Ex CW1/Q and Ex CW1/R and reply of legal notice dt. 02.05.2007 which is Ex CW1/S. Accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which the accused pleaded not guilty and claimed trial.
Presummoning evidence of the complainant was treated as post notice complainant evidence as per the guidelines laid down by Hon'ble Delhi High Court, in case titled as Rajesh Aggarwal vs State & Anr. 2010, VII AD, (Delhi) 576.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat 3/12 :4: v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] "
Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged 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 or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent 4/12 ......5.....
man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant". In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the accused and this they had to discharge at the trial.
Considering the aforesaid judgment as the complainant has initially discharged his burden of proof. In this case, now the onus has shifted to the accused for rebutting his liability towards the complainant.
Pursuant to allowance of application u/s 145 (2) NI Act, the complainant was recalled for crossexamination, in his cross examination complainant has stated that " I have filed income tax return on previous year. I have not 5/12 ......6.....
mentioned about the said loan transaction in my income tax return filed previous year. I have not mentioned about the said loan transaction in my income tax return because it is not my personal income. I am acquainted with the accused sine 198384. I am having business dealing as well as friendly terms with the accused. The said loan of Rs. 1,40,000/ was taken by the accused from me on 25.12. 2006. I was having the said amount in cash when I advanced the loan to the accused. It is wrong to suggest that I carry on the business of money lending on interest. At the time of the said loan transaction, certain papers were prepared and after affixation of revenue stamp receipt was taken and five cheques were given by the accused to me in lieu of loan advanced by me to the accused. No witness has attested the said revenue stamp receipt. The date was not filled up on the cheques and I have filled up the date on the request of the accused. I have filled the date on the same day when I advanced the loan to the accused. It is wrong to suggest that all the five said cheques were given in the year 1992. It is wrong to suggest that on the undated revenue stamp receipt, signatures of the accused were taken in the year 1992. Confronted with Ex CW1/E and Ex CW1/G. The date was wrongly put on the cheques Ex CW1/E and EX CW1/G on 25.12.2006 and after cutting it was duly corrected and signed by the accused. Confronted with Ex CW1/C to EX Cw1/G. All the dates on the cheques EX CW1/C to EX CW1/G have been filled by the same pen. Confronted with receipt Ex CW1/A . It is wrong to suggest that I have filled the date on the receipt Ex CW1/A later on in order to bring loan within limitation. It is correct that on the receipt Ex CW1/A no reference of the cheques have been given, although amount has been mentioned. I do not remember whether accused at the time of issuing the cheque given endorsement on his cheque book as to the date of the issuance of the cheque. I have advanced the said loan to the accused free of interest. Confronted with Ex CW1/B. Although it has been mentioned on Ex CW1/B by the accused that he would pay the interest on the loan but accused has verbally told me that he would not pay the interest on the loan. It is correct that writing in Hindi on the ExCW1/B is my handwriting. I do not have any licence to carry on the money lending business. My monthly income is 6/12 .......7.....
around Rs. 5000/ to Rs. 7000/. I do not remember what monthly income I have shown in my income tax return. It is wrong to suggest that all the five said cheuqes were given in year 1992 as a security. It is correct that in the said legal notice issued by me to the accused there was a reference of the receipt in the said legal notice. Confronted with Ex CW1/ M. It is correct that there is mention of the receipt in the said legal notice Ex CW1/M, although date is not mentioned with the said receipt. It is wrong to suggest that said loan was not advanced by me in the year 2006. It is wrong to suggest that said loan was advanced in the year 1992 and was repaid by the accused". Thereafter, statement of accused under section 313 CrPC was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that "I I have not issued the said cheques with regard to any loan amount. It is correct that I stopped the payment. It is correct that I have replied the legal notice and I have taken a loan of Rs. 1,40,000/ from the complainant in the year 1992 and I have given the said blank signed cheques as security in lieu of said loan to the complainant in the year 1992. I have repaid the said loan in cash in installments by the year 1997 and requested the complainant to return the said five blank signed cheques but complainant kept on delaying the matter and after 810 months, complainant told me that the said cheuqes have been misplaced by him. Complainant assured me that whenever the cheques would be found by him, then complainant would return the cheques to me. Complainant did not return the said cheuqes to me in spite of my acquaintance with the complainant after the said dates also. On one day, I received a telephone call from the complainant around the year 2006 that he has found the said cheques and I should repay the amount of the said cheques. I told the complainant that I have already repaid the loan amount and my cheuqe should be returned to me but complainant did not return the said cheuqes to me. I after giving a telephonic call 7/12 .....8.....
to my bank, got the payment stopped on the said five cheques. Thereafter , I received the legal notice to which I replied through my counsel"
In his statement u/s 313Cr PC the accused has preferred to lead defence evidence.
Accused has examined himself in his defence as DW1 after allowance of application U/s 315 Cr.P.C. He has deposed in his chief examination that " I know the complainant since 198687. Complainant is a money lender by profession. I had taken a loan from the complainant of Rs. 1,40,000/ in the year 1992. I used to pay Rs. 2200/ per month as interest on the principal amount of Rs. 1,40,000/. I took this loan in installments. The days on which I took the installments of loan. I handed over five cheques to the complainant. I entered the transaction of handing over the cheque to the complainant on the last page of my cheque book personally. I made these entires on the same day when I handed over the cheques in question to the complainant. I had filled all the particulars i.e. Name of the complainant amount and signatures. I had not filed any date on the said cheques. I had repaid the said loan of Rs. 1,40,000/ in cash and in installments in the year 1995. The complainant did not given any receipt of the said repayment of the loan despite my demanding of such receipt. He also, refused to return my cheuques. He delayed the return of the said cheques had been misplaced by him and he would return the same as and when he found them. In Dec 2006, I received a call from the complainant and he has found the said cheques and asked for loan amount and only then, he will return my cheuqes to me. Seeing the ill will of the complainant. I asked my banker to stop the payment of the cheuqes in question in January, 2007. Today, I have brought the originals slips of those cheques in question. The said originals slips of those cheques in question is Ex DW1/A and DW1/B. Entries are shown at serial no. 1 to 4. I have no record regarding entry no. 5 pertaining to cheque no. 167303 for an amount of Rs. 35,000/. I have also brought the record for making "stop payment" Ex DW1/C. I received a legal notice sent by complainant which is EX CW1/M. I also replied to the said legal notice which is Ex CW1/S. Complainant has filed a false case against me for to extort more money from 8/12 ......9.....
me. After repayment of the loan in the year 1995. I have not taken any loan from the complainant. In his cross examination, he deposed that "
It is wrong to suggest that the said loan of Rs. 1,40,000/ was given at without interest. It is correct that in my reply Ex CW1/S, loan of Rs. 1,40,000/ was mentioned as without interest. It might have been mentioned wrongly my counsel. The cheques Ex CW1/C to CW1/G bears my signature. The counter receipt of cheque bearing No. 167303 dt. 27.02.2007 of Rs. 35,000/ has been misplaced by me. The counter of the cheque book Ex DW1/A and DW1/B are showing only one entry of Rs. 30,000/ regarding the issuing of the cheque. It is correct that the cheque issued by me to the complainant which are Ex CW1/C and Ex CW1/E are of the amount of Rs. 30,000/. It is correct that as per counter receipt of cheque book Ex DW1/B, the amount of cheque no. 657764 showing the entry of Rs. 25,000/. It is wrong to suggest that I have made the false entry in the counter receipt of the cheque book after filing the present case against me. The cutting in respect of the date on cheque no. 657764 and cheque no. 657763 are having my signatures on the correction of dates. It is correct that the receipt EX CW1/A bears my signatures at point A and every thing written is in my handwriting except the date mentioned therein is also correct that Ex CW1/B also bears my signatures at point B. The matter written in EX CW1/B was not written by me. I have not lodged any complaint against the complainant nor I have sent any legal notice to the complainant with regard to return of my cheques in question. However, I made oral request to the complainant.
Accused has examined Sh. Virender Singh Bank witness as DW2, in his chief examination, he stated that "I have brought letter from ICICI Bank, Karol Bagh issued by Sh. Amit Srivastava, Deputy Brach Manager, Karol Bagh. The cheque book no. 162021V and cheque book no. 6577618 were issued on 21.04.1992 and 21.01.1992 respectively. The letter bears the signatures of branch 9/12 ......10.....
manager. I can identify the signatures of manager at point A as I have seen while working. Same is Ex DW2/1. In his cross examination, he deposed that:
"it is correct that the cheque book issued by the bank to his customer can be used by the said customer in the future"
Accused did not examine any other witness. Accordingly DE was closed. Oral arguments tendered by the Complainant as well as Ld. counsel for the accused were heard at length. Written submissions were filed and taken on record. After perusing the entire case file, final written arguments on record, and after, taking into consideration the arguments tendered by both the parties, this court is of the considered opinion that the initial burden of proving the case by the complainant has been discharged by him beyond reasonable doubt, but accused is not able to rebut the evidence which was led against him even on the touch stone of preponderance of probability as accused has taken a lot of inconsistent defence at every stage of proceeding.
Complainant has discharged initially burden by placing material on record, relying upon presumptions in his favour but the accused could not rebut the presumption in favour of the complainant and he could not demolish the stand of complainant as CW1 in his cross examination.
The only defence taken by the accused is that he has taken a loan of Rs. 1,40,000/ from the complainant in year 1992 and and blank signed cheques were given as security to the complainant. The law is very clear in this aspect. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: "Section 20 of N.I At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and 10/12 .....11.....
the extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357: (2006) CrLJ3140: (2007) 6 Karn LJ 237 (Kant).
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475, where it was held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of section 87 merely by writing details on cheque".
Accused has further taken the defence that he has repaid the loan amount by way of installments in the year 1997 but no document has been brought on record against the said payments.
Another defence taken up by the accused is that the cheuqes were undated and they were presented without information being given to him.
It is pertinent to mention here that the cheques, EX CW1/C and EX CW1/G has been counter signed by the accused himself on the date column as the previous date was cancelled and new date was written over these cheques . Had the case been misuse of security cheques which were given in 1992 there was no need for the accused to counter sign the cheques dt. 31.01.2007 and 28.02.2007 respectively. This clearly shows that the dates were written on these cheques on the request of the accused as he has counter signed and lastly, the accused has himself admitted his signature on all the cheques in questions. Therefore, no iota of doubt has been created 11/12 ......12....
on the version of the complainant.
Complainant has proved his case and the guilt of the accused beyond reasonable doubt.
Reliance placed on the judgment of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35], wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies"
This court is of the considered opinion that complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 06.06.12. (SHEFALI BARNALA TANDON) METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI 12/12 IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI. CC No. 3298/1/07 ID No. RO245342007 Sh. P. S Bhatia Vs. Jagdish Jwellers U/s. 138 Negotiable Instrument Act 08.06.12 ORDER ON SENTENCE Present: Complainant along with Ld. counsel Sh. S. L Sharma.
Convict with Ld. counsel Sh. S. S Dogra.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is the first time offender and having family to support which consists of his wife and three children. It is further stated that convict is never involved in any criminal activity in the past and has not been previously convicted for any offence and a lenient view should be taken against the convict . It is submitted by the Ld counsel for convict that convict is 57 years old and is suffering from various aliments, therefore, lenient view may be taken.
Counsel for the complainant has stated that matter is pending since 2007 and the cheque in question was given by the convict in discharge of his liability maximum fine be imposed upon the convict. It is also stated that total amount involved in the present case is around Rs.1,40,000/ which is due since 2007.
I have heard the submissions and carefully perused the record. Complainant regarding present cheques in question is pending since 2007 and the same relates to the loan transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act since the cases of dishonour of the cheque are on high rise in the society and the same shall not serve a deterrent to others. Considering the totality of circumstances and also considering the age of the convict sentenced to simple imprisonment for a period of one year and is further ordered to pay compensation to the complainant for an amount of 13/12 .......2.......
Rs. 2,80,000/ (Rs. Two lac Eighty thousand only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 3 months.
At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 30,000/ with surety of like amount. Bail bond furnished and accepted till 09.07.12. Original RC be retained. Necessary robkar be issud in this regard.
Earlier surety stands discharged.
Copy of this order be given to the accused free of cost. Bail bonds be put up on 09.07.12 File be consigned to record room after due compliance.
Announced in the open (Shefali Barnala Tandon)
8 June, 2012
th
MM (N/W)/Rohini Courts, Delhi.
14/12
Sh. P. S Bhatia Vs.
Sh. Jagdish Kumar Bhola
06.06.12
Pr: Complainant in person.
Accused with Ld. Counsel.
Vide separate judgment dictated and pronounced today in the open court, accused is convicted for the offence punishable under section 138 NI Act.
Put up for order on point of sentence on 08.06.12.
(SHEFALI BARNALA TANDON) MM/ROHINI/DELHI 06.06.2012 15/12