Delhi District Court
Judgement Krishnam Raju Finances vs . Abida Sultana & Ors., Cited on 23 February, 2011
"IN THE COURT OF SH. DEVENDER KUMAR GARG : MM
(E) :KKD:DELHI"
CC No. : 534/1/02
PS : Anand Vihar
U/s : 138 of NI Act
Unique Case ID No. 02402ROO88442002
Date of Institution : 02.12.02
Date of reserve of order : 18.02.2011
Date of announcement : 23.02.2011
J U D G M E N T
1. Serial No. of the case : 534/1
2. Name of the Complainant : Sh. Rajender Kumar Kohli, Prop.
of M/S AAR Kay Financers., E36,
Jawahar Park, Laxmi Nagar,
Delhi92.
3. Date of incident : 01.05.2002
4. Name of accused person : Sh. Manohar Lal S/o Sh.
Harchandi, R/o; 53, TypeIII, DJB,
Quarter, Model TownIII. Delhi.
5. Offence complained of : U/S 138 of NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order : Convicted
8. Date of such Order : 23.02.2011
BRIEF REASONS FOR SUCH DECISION:
CC No. 534/1/02 1/13
1. The case of the complainant as per complaint is that the accused had taken a loan of Rs. 20,000/ (Rupees Twenty Thousand Only) on interest on dated 02.05.02 from the complainant and the accused also promised to return the above amount within two months to the complainant.
2. As per complaint, the accused also taken a sum of Rs. 25000/ from the complainant on dated 01.05.02 with interest through a cheque bearing no. 017999 dated 01.05.02 of Corporation Bank, Laxmi Nagar, Delhi and also the accused promised to return the same amount within two months to the complainant.
3. As per complaint, after two months when the complainant demanded his above said amount from the accused then the accused had issued a cheque bearing no. 641009 for a sum of Rs. 30000/ in lieu of Rs. 25000/ on dated 01.05.02, in favour of the complainant.
4. As per complaint, the accused had also issued other cheque bearing no. 641910 for a sum of Rs. 25000/ on dated 01.05.02 in in lieu of Rs. 20000/, in favour of the complainant.
5. As per complaint, when the complainant presented the above both the cheques in his bank; i.e. Oriental Bank of Commerce on dated 18.10.2002 for its encashment but both the cheques were returned unpaid on 19.10.02 with the remarks "Funds Insufficient" to CC No. 534/1/02 2/13 complainant as such both the cheques have been dishonoured.
6. As per complaint, after dishonouring of above cheques the complainant contacted the accused on telephone and intimated about dishonour of both cheques and demanded his above amount of the cheques but the accused did not pay any heed to the demand of complainant and ultimately the accused refused to make the payment of above cheques to the complainant.
7. As per complaint, thereafter the complainant sent a legal notice through his counsel on dated 28.10.02 by Regd. A.D. and U.P.C. to the accused thereby demanding his above amount of both the cheques. The Regd. A.D. was made through receipt no. 4272 and 4273 and U.P.C. Dated 28.10.02. The Regd. A.D. and U.P.C. has not been received by the complainant. Hence the present complaint.
8. Vide order dated 06.01.03, cognizance was taken and accused was summoned by the Ld. Predecessor of this court. On appearance of the accused notice of accusation u/s 251 Cr.P.C. was framed against the accused vide order dated 09.11.04 to which the accused pleaded not guilty and claimed trial.
9. For proving his case the complainant has examined himself as CW1. After that CE was closed and matter was adjourned for statement of accused u/s 313 Cr.P.C. All the incriminating evidence was put to CC No. 534/1/02 3/13 the accused and he stated that he wants to examine witness in his defence. However no witness was examined on his behalf despite he was given opportunity.
10.I have heard Sh. Ranvir Singh, Ld. Counsel for complainant and Sh. Rajiv Sharma, Ld. Counsel for accused and perused the material on record carefully. Ld. Counsel for accused has relied upon judgement Krishnam Raju Finances Vs. Abida Sultana & Ors., Cited as 2004 (2) JCC (NI) 130, Anil Baburao Kataria Vs. Purshotam Kawane, cited as Crl. Application No. 630 of 2009, D/d. 21.11.09., M/s. Alliance Infrastructure Project Pvt Ltd. Vs. Vinay Mittal cited as Crl. M.C. No. 2224 of 2009, Promod Kumar Vs. Subodh Kumar cited as Cr. Rev. No. 34 of 1996, D/07.11.96, M/s Shakti Travel & Tours Vs. State of Bihar & Anrs. Cited as 2000(3) Civil Court Cases 583 (S.C)., Joseph Sartho Vs. G. Gopinathan and another cited as Crl. Appeal No. 1432/2003C.D/d.29.10.2008, Sreenaivasan Vs. State of Kerala cited as Crl. M.C. No. 6088 of 1998.D/d.11.10.1999, Sri Marugan Financers Vs. cited as Crl. Appeal No. 791 of 1997.D/D. 13.07.2004. Ld. Counsel for complainant has relied upon judgment S. Parameshwarappa & Anr. Vs. S. Choodappa, cited as 2007 (2) DCR 263.
11.For deciding present complaint some of the relevant provisions of Negotiable Instruments Act are as under : "Sec 138. Dishonour of cheque for insufficiency, etc., funds in the CC No. 534/1/02 4/13 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 provisions 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 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 the 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, ot the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
CC No. 534/1/02 5/13 Explanation : For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. Sec. 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. Section 142. Cognizance of offences. 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 causeofaction arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period] 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".
12.As per deposition of complainant when the above said two cheques were deposited by the complainant to his banker for encashment on 18.10.02, they were got dishonoured and returned unpaid vide returning memo dated 19.10.02 with remarks of "Funds Insufficient". CC No. 534/1/02 6/13 Perusal of the said return memos on file shows that they have been exhibited as Ex. CW1/F(i) and Ex. CW1/F(ii). As per deposition of complainant after dishonouring of the said cheques he contacted with the accused and intimated him about the dishonour of both cheques and demanded his above amount from the accused but accused did not pay a single penny to the complainant. Thereafter, the complainant got issued a legal notice dated 28.10.02, Ex. CW1/E sent through registered A.D. made through receipt no. 4272 which is Ex. CW1/F and by way of UPC through receipt no. 4273 which is exhibited as Ex. CW1/G, through his counsel calling upon the accused to make payment of the said dishonoured cheques. He has further deposed that Legal notice was sent by registered A.D. was not received by the complainant back.
13.Perusal of the file shows that evidence was tendered by way of affidavit and Sh. R.K. Kohli i.e. Complainant has examined himself as CW1. He has deposed in his affidavit that accused came in contact with him and demanded Rs. 20,000/ as a loan from him on interest on 02.05.02 and the accused promised the complainant for return of said amount within two months. The complainant acceded said request of accused and gave him a loan of Rs. 20,000/ and the accused executed a demand promissory note in his favour and also executed a receipt. The demand promissory note has been exhibited as Ex. CW1/A and receipt has been exhibited as Ex. CW1/B. As per his deposition accused had also taken a sum of Rs. CC No. 534/1/02 7/13 25,000/ from the deponent on 01.05.02 with interest through cheque bearing no. 017999 dated 01.05.02 of Corporation Bank Laxmi Nagar Branch, Delhi which is marked as Mark A. The Bank Statement of Account of complainant for period from 02.05.02 to 31.05.02 has been filed and same is marked as Mark B. As per complainant, the cheque was given by complainant to the accused as loan and the accused gave assurance to the complainant to return the said amount to the complainant within two months. As per deposition of complainant after two months when deponent demanded his above said amount from the accused, then the accused had issued back dated cheque bearing no. 641009 dated 01.05.02 in favour of deponent for a sum of Rs. 30,000/ in lieu of loan taken by him to the tune of Rs. 25,000/ which has been exhibited as Ex. CW1/C. As per complainant, the accused also issued another back dated cheque bearing no. 641910 dated 01.05.02 in favour of the deponent for a sum of Rs. 25,000/ in lieu of loan taken by him to the tune of Rs. 20,000/ and the same has been exhibited as Ex. CW1/D.
14.Ld. counsel for accused has contended that the complainant is making false statement and he cannot be believed hence his complaint be dismissed. He has contended that the complainant in his cross examination had deposed that he is not proprietor of M/S R.K. Finance and on the other hand in his affidavit Ex. CW1/A he has shown himself as Proprietor of M/S R.K. Financers. On the CC No. 534/1/02 8/13 other hand Ld. Counsel for complainant had contended that during the cross examination of complainant, the complainant was not asked whether he is proprietor of "M/S R.K. Financers" but he was asked whether he was proprietor of "R.K. Finance Company" and of which he was not a proprietor. Perusal of cross examination of CW1 shows that question has been asked about R.K. Finance Company and not of R.K. Financers. So it cannot be said that any false statement has been made by the complainant. Further more the accused has failed to show its relevance on the merits of the case. It is admitted by the accused that the cheques in question were signed by him and were given by him to the complainant. So in the present facts and circumstances, answers given by the witness in his cross examination do not have relevancy on the merits of the case.
15. Ld. Counsel for accused has contended that the complainant has admitted in his cross examination that he has also given loan to other persons and he is not having the licence as required by "The Punjab Registration of Money Lenders Act 1938". Ld. Counsel for accused has relied upon "Krishanam Raju Finances Vs. Abida Sultana & Ors (Supra) and "Anil Baburao Kataria Vs. Purshotam Prabhakar Kawane (Supra)". On the other hand Ld. Counsel for complainant has contended that for filing complaint u/s 138 of Negotiable Instrument Act there is no requirement of registration or licence under this provision of a "The Punjab Registration of Money Lender's Act 1938".
CC No. 534/1/02 9/13
16.As per section 3 of "The Punjab Registration of Money Lender Act 1938" which is applicable to Union Territory of Delhi, suit and application by money lenders are barred unless money lender is registered and licenced. It is mentioned in the present provision that a suit by a money lender for recovery of loan or an application by a money lender for the execution of a decree relating to a loan shall be dismissed unless the money lender is registered and holding a valid licence. As per section 2 (7) of the above said Act., certain situations have been given which does not come within the sphere of definition of 'loan'. At sub clause (Vii) of sub section 7 of section 2 of the above said act an advance made on the basis of Negotiable Instrument Act as defined in Negotiable Instrument Act 1881, other than a promissory note does not come within the definition of "loan". So This court is of the opinion that there is no requirement of registration and of licence to the money lender for prosecuting his complaint u/s 138 of Negotiable Instrument Act as such complaints are not barred u/s 3 of above said 'Act'. It has been held by Hon'ble Karnataka High Court in S. Parameshwarappa & Anr. Vs. S. Choodappa, (Supra) in para no. 28 of its judgment that " May be true that this court in respect of money lending as a matter of obligation on the part of plaintiff in a suit for recovery of money, would insist, as a condition precedent, to have a money lending licence. This is not a suit for recovery of money rather, the complainant is exercing the special power provided under the CC No. 534/1/02 10/13 Negotiable Instrument Act for non payment and dishonoured of cheque which is more in a quasi civil and criminal in nature."
17.Ld. counsel for accused had contended that there was no agreement of accused with the complainant as the said pronote is stated to be in favour of R.K. Financers and not in favour of complainant. Perusal of the file shows that the complainant has mentioned himself as proprietor of R.K. Financers. Further the complainant has relied upon receipt Ex. CW1/B. The said receipt has not been disputed by the accused and perusal of the same shows that it is for an amount of Rs. 20,000/. It shows that money was received by the accused. In the present circumstances, the issuance of pronote by the accused does not appear to be necessary for showing his liability.
18.Ld. counsel for accused has contended that no where in the complaint filed by the complainant it is mentioned that Legal notice was served upon the accused. He has relied upon the judgement of Hon'ble Supreme Court of India in M/S Shakti Travel & Tours Vs. State of Bihar & Anrs. 2000 (3) civil court cases 583 (Supreme Court). Perusal of the complaint shows that in para no. 7 of the complaint that complainant sent a Legal Notice through his counsel by registered A.D. and UPC thereby demanding his above said amount of both the cheques. The receipt no. of registered AD and UPC have also been mentioned. It is further stated in para 7 that CC No. 534/1/02 11/13 registered AD & UPC has not been received by the complainant. Perusal of the cross examination of CW1 shows that the address mentioned on the postal receipts and on the UPC receipts and in the legal notice has not been disputed by the accused person. Neither any witness has been examined on his behalf for disproving the service of said legal notice.
19.In Anil Raj Vs. Intergrated Finance Co., II (2006) CCR 31, by referring Raja Kumari's case, the Hon'ble High Court of Kerala observed that "
"No doubt section 138 of the Act does not require that the notice should be given only "by post". Nonetheless the principle incorporated in section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
20.The above mentioned observation has also been reiterated by the Hon'ble Supreme Court in para number 24 of the case titled as K. Bhaskaran Vs. Shankaran Vaidhyanbalan & Another (supra) Criminal Appeal No. 1015 of 1999 arising out of SLP (Crl.) No. CC No. 534/1/02 12/13 146 of 1999".
21.Hence it is clear that legal notice demanding the payment as required under the provisions of Negotiable Instrument Act have been served on the accused person.
22.Ld. counsel for accused had contended that cheques in question were given as security by the accused and they have been misused by the complainant. He has further contended that presumption u/s 139 of Negotiable Instrument Act cannot be taken in favour of the complainant. On the other hand contention of Ld. Counsel for complainant is that cheques in question were given back dated however they were given in discharge of liability of accused.
23.It has been held in Dr. Sampathkumar B.V. S/o Sh. Dr. S.V. Pandith, Major Vs. Ms. Dr. K.G.V. Lakshmi, GCIM, Lakshmi Health Centre cited as Crl. Appeal No. 1115/1999 dated 03.02.06...... "that the dismissal of the complaint on the plea that it was issued only as security and therefore no prosecution would lie is again untenable view. A cheque whether issued for repayment of loan or as security makes little difference under section 138 of the Act. In the event of dishonour, legal consequences are same without distinction. In the present case, issue of cheque, its dishonour and issuance of statutory notice are held to be proved according to the findings of the trial court. When once issue of CC No. 534/1/02 13/13 cheque is proved, a presumption under section 139 of the Act would arise with regard to consideration. The accused has not let in any evidence to rebut the said presumption........" It has been further held by Hon'ble of Bombay High Court in Balaji Agencies Pvt. Ltd. Vs. Vilas Bagi & Anr., cited as Crl. Appeal No. 70 of 2006 dated 16.06.08, that securities are given so that they can be enforced when need arises. They are not given as pieces of paper. Even assuming that the cheques were given as security, this would not escape the accused from his liability. The main reason is that the complainant has successfully proved the handing over of amount of Rs. 25,000/ and of Rs. 20,000/ respectively to the accused. Amount of Rs. 25,000/ was given through cheque and for substantiating his claim the complainant has placed on record the statement of account of his banker which is marked as Mark A. In his statement u/s 313 of Cr.P.C., the accused has admitted that he had taken some loan from the accused however his defence is that he had paid the said amount. But no where he has filed any receipts of the amount which has been paid by him and neither any witness has been examined in respect of said repayment. For proving the amount of Rs. 20,000/, the complainant has placed on record receipt Ex. CW1/B on record and the same has not been disputed by the accused. Hence it cannot be said that complainant has failed to prove the consideration as required by the provisions of Negotiable Instrument Act.
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24.Perusal of the file shows that the date of return memo is 19.10.02 and Legal notice was sent on 28.10.02 i.e. within a period of 15 days and the present complaint has been filed on 02.12.02 which is within the limitation period as per provisions of Negotiable Instruments Act.
25.The complainant has proved its case beyond reasonable doubt against the accused. All the ingredients of Sec. 138 of Negotiable Instrument Act have been duly proved on record. Hence accused is convicted under section 138 of Negotiable Instrument Act. Put up for arguments on the point of sentence on 26.02.11.
Announced in the open court (DEVENDER KR. GARG)
on 23.02.11 MM/KKD/Delhi
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