Delhi District Court
Kundan Lal Jaweria vs . Shiv Shankar Mehto on 23 July, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
KUNDAN LAL JAWERIA VS. SHIV SHANKAR MEHTO
CC No. 409/2017
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 409/2017
(2) Name of the complainant : Kundan lal Jaweria
S/o Late Sh. Rura Ram
R/o 93, Sunlight Colony,
Near Kilokari Gram, N.Delhi
(3) Name of the accused, : Shiv Shankar Mehto
parentage & address S/o Sh. Jag Mandal Mehto
Proprietor Shree Mann Book
Maker,
R/o H. No. 452, DDA Flats,
Pulpehladpur, New Delhi-44
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction
(7) Date of Institution : 05.03.2013
(8) Date on which reserved for
judgment : 17.07.2018
(9) Date of Judgment : 23.07.2018
Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017
Page 1 of 16
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that on 14.08.2012, accused took friendly loan of Rs. 2,00,000/- from the complainant with assurance to repay the same in October 2012. On 24.12.2012, in discharge of his liability, accused issued cheque bearing nos. 695670, drawn on Allahabad Bank, Okhla Ind. Estate, New Delhi dt 24.12.12 amounting to Rs. 1,00,000/- as a part payment with assurance to repay the remaining amount in future. The complainant presented the above said cheque which was returned unpaid for the reason "Funds Insufficient" vide return memo dated 28.12.2012. Thereafter, on instructions of the accused, complainant presented the above mentioned cheque again, whicih was again dishonoured for the reason "Funds Insufficient" vie return memos dtd. 15.01.13 and again on 07.02.13. Thereafter, complainant sent a legal notice dated 13.02.2013 through his counsel by way of speed post with A.D. on 13.02.2013 which was deemed to be served upon accused despite which, accused failed to make the payment of the cheque in question within stipulated time period. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex- CW1/1 was filed by the complainant. In his affidavit of evidence, the complainant reiterated all the averments made in his complaint and relied on documents Ex.CW-1/A to Ex.CW-1/G which are the original cheque in question, return memo dated 28.12.12, memorandum dated 15.01.13, return memo dated 09.02.13, office copy of legal notice dated 05.03.2013, postal receipt and Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 2 of 16 3 tracking report.
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 03.05.2013.
Thereafter, the complaint was returned vide order dated 15.10.14 in view of directions of Hon'ble Supreme Court of India in the case titled as Dashrath Rup Singh Rathod Vs. State of Maharashtra & Ors in Crl. Appeal No. 2287/09 decided on 01.08.2014.
Thereafter, complainant again filed the complaint in the present Court and summoning order u/s 204 CrPC was passed against the accused vide order dated 19.05.2015.
3. Accused appeared pursuant to issuance of summons. Thereafter inadvertently without framing of notice, an application u/s 145 (2) NI Act filed by the accused to cross examine complainant and his witnesses was allowed vide order dated 28.02.17.
Complainant was duly cross examined by Sh. Prashant Rawat, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 06.10.2017.
4. Thereafter, at the stage of recording of statement of accused, it was noticed that notice u/s 251 Cr. PC has not been served upon accused and considering the principle that non-framing of notice is an irregularity in procedure which can not vitiate the whole proceedings and it can be cured, notice u/s 251 Cr. PC was served upon accused vide order dated 17.11.17 to Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 3 of 16 4 which the accused pleaded not guilty and claimed trial. Accused further stated that he has not taken any loan from the complainant. At the time of taking amount of committee, on the insistence of complainant, he had issued blank signed cheque as security and the particulars of the cheque have not been filled by him. The handwriting on the particulars of the cheque except the signature is of the complainant and with comparison to the handwriting Mark A, it can easily be made out that particulars of the cheque have been filled by the complainant. Accused further stated that he asked the complainant to give him due receiving of the payment as he has already made but as an acknowledgement, complainant sent him a WhatsApp message in his handwriting, copy of which is already on record as Mark A. The cheque was given for the purpose of committee and apart from the cheque in question, he has issued other self cheques to the complainant towards payment of committee amount and complainant has duly encashed those cheques and he has proof regarding the same. Accused further stated that he has not received the legal notice as he was staying in a rented accommodation which he had to vacate after a duration of 11 months. Accused stated that he has no legal liability to pay the cheque amount to the complainant.
5. No new plea had been raised by the accused to the notice u/s 251 Cr. PC and complainant was already cross examined, therefore, the plea of the accused u/s 313 r/w 281 Cr. PC was recorded on the same date i.e. 17.11.2017. In the plea u/s 313 r/w 281 CrPC, all material existing on record including the exhibited documents were put to accused. Accused stated that he has not taken Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 4 of 16 5 any loan from the complainant. At the time of taking amount of committee, on the insistence of complainant, he had issued blank signed cheque as security and the particulars of the cheque have not been filled by him. The handwriting on the particulars of the cheque except the signature is of the complainant and with comparison to the handwriting Mark A, it can easily be made out that particulars of the cheque have been filled by the complainant. He asked the complainant to give him due receiving of the payment and he has already made but as an acknowledgement, complainant sent him a WhatsApp message in his handwriting, copy of which is already on record as Mark A. Accused further stated that the cheque was given for the purpose of committee and apart from the cheque in question, he has issued other self cheques to the complainant towards payment of committee amount and complainant has duly encashed those cheques and he has proof regarding the same. Accused stated that he has not received the legal notice as he was staying in a rented accommodation which he had to vacate after a duration of 11 months. Accused further stated that he has no legal liability to pay the cheque amount to the complainant.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE. Accused examined Sh. Subhash Chand as DW-1 and was duly cross examined by Sh. Harish Chand Sharma, Ld. Counsel for the complainant. Accused wants to examine one more witness Sh. Mange Ram but despite opportunity, he could not produce the witness. Thereafter, right of the accused to lead further DE was closed vide order dated 29.05.2018 and matter was fixed for final arguments. Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 5 of 16 6
7. Sh. Harish Chand Sharma, Ld. Counsel for complainant and Sh. Prashant Rawat, Ld. Counsel for accused have addressed final arguments
8. By way of oral arguments, Ld. Counsel for complainant has reiterated the facts mentioned in the complaint. It has been further argued on behalf of complainant that in the application u/s 145 (2) NI Act in para no. 7, accused has admitted that cheque bears his signature and accused also admitted in para no. 4 of the application that complainant and accused were having friendly relations. Now the only defence taken by the accused is that he had given blank signed security cheque to the complainant for the purpose of committee but accused has not produced himself as a witness to prove his defence. Further, accused has examined Sh. Subhash Chand as DW-1 who has deposed that complainant was running a committee and he had taken last committee while accused had taken 3 rd or 4th committee and complainant had taken blank signed cheque from the accused at the time when he had taken the committee but during cross examination, DW-1 admitted that he was informed about the present case by the accused approximately 03 to 04 months ago only. Further, he was not the witness to the loan transaction. Further, he himself admitted that cheque was not given in his presence nor he could produce any document to show that complainant has ever run any committee and from the perusal of cross examination of DW-1, it is clearly that his evidence is only hear say evidence and therefore, the testimony of DW-1 is not sufficient to proof the defence of accused. Further, accused has been convicted in other cases too. Thus, accused is liable to be convicted.
Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 6 of 16 7 On the other hand, it has been argued by the Ld. Counsel for the accused that there were friendly relations between parties but no friendly loan was given to the accused. Further, complainant does not know the details of family members of accused because complainant was running a committee and that is why there were friendly relations between the parties. Further, complainant had not filed any proof to show that complainant had financial capacity to pay such a huge loan to the accused and complaint is liable to be dismissed only on this ground. Accused has relied upon the judgment of Kulwinder Singh Vs. Kafeel Ahmed arising out of Crl. A. No. 478/2011 decided on 04.01.13 by HMJ V.K. Shali, Delhi High Court. Further, it has been argued that as per complainant, complainant has given loan to the accused in presence of three witness, but complainant hasnot examined these witnesses as CWs and as per the principle laid down HMJ K. N. Keshavanarayana in Crl. A. No. 604/2009 decided on 05.04.10, the complaint is liable to be decided on this ground. It has been further argued that complainant has not shown the above said loan in his annual ITR and therefore, by way of the present complaint, complainant cannot be given opportunity to recover unaccounted money and accused has relied upon the judgment of Jai Bhagwan Vs. Avtar Singh Saini decided on 22.01.2018 by Punjab & Haryana High Court, in CRMA 457 MA of 2013. It has been further argued that complainant as well accused are government and both are governed by government servant conduct rules which prescribed the mode of lending and borrowing and admittedly in the present case the prescribed mode was not followed, therefore the complainant cannot recover the unaccounted money Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 7 of 16 8 and accused has relied upon the Government Servants Conduct Rules 1960 as well as upon the Judgment of K. Subramani Vs. K. Damodra Naidu decided on 13.11.2014 by Hon'ble Supreme Court of India. It has been further argued that clearly complainant has failed to prove his case. 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.
9. Arguments advanced by both parties heard. Case file perused meticulously.
10. 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 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.
11. In the case at hand, receipt of legal notice and the legal liability of accused to pay the cheque amount to the complainant are in dispute.
12. Now, this court shall deal with the defences of accused one by one.
12A. FIRST DEFENCE AS TO 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 13.02.13 Ex-CW1/E as accused was staying in rented accommodation which he had to vacate after a duration of 11 months. Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 8 of 16 9 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 13.02.2013 ExCW-1/E was sent to the accused through speed post on 13.02.13 on the correct address of the accused and receipt of which is Ex-CW1/F. 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 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. In the present complaint, the accused had not taken plea that the Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 9 of 16 10 address on which complainant sent a legal notice is wrong. Further, the wife of the accused who stood as surety for the accused has furnished the same address on which legal notice has been sent on the bail bond furnished on 08.10.16 as per which the RC of four vehicle i.e. DL-1LV-8911 has been issued to wife of accused on 05.06.15 mentioning the same address. Therefore, in view of above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated 13.02.2013 ExCW-1/E was served on the accused.
12B. SECOND DEFENCE AS TO LEGAL LIABILITY B1. 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).
B2. In the case at hand, as per complainant he has given friendly loan f Rs. 2 lacs to the accused on 14.08.12 and accused issued cheque in question for Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 10 of 16 11 sum of Rs. 1 lac as part payment to discharge of his legal liability and cheque got dishonoured.
On the other hand, the defence of the accused is that he had given blank signed cheque as security to the complainant which has been misused by the complainant and accused has already paid the amount of committee and complainant sent a Whatsapp message in his handwriting which is mark -A as an acknowledgment to the accused.
13. Admittedly, no written document or agreement or receipt has been executed between parties and the court has to evaluate oral testimonies of both parties.
14. Now to prove his defence, accused has cross examined the complainant. During cross examination, complainant has denied the defence of accused which was put to the complainant by way of suggestions. The relevant portion of cross examination is as follows :
"I know the accused for the last 10-15 years. I am doing job in MCD as Anti Malaria Officer......................................At the time of granting loan to the accused, myself and my son were earning members of my family. It is correct that I had not taken any cash receipt of Rs.2 lacs from the accused. I had given Rs.2 lacs to the accused which was lying in my house. The money of Rs.2 lacs has been given to the accused in the barber shop of my son. It is correct that I had not made any witness at the time of giving money to the accused. I was having Rs.10,000/- or Rs.20,000/- more lying in my house after giving the money of Rs.2 lacs to the accused............................. .It is correct that I had not given any friendly loan to the accused prior to this loan amount. (Vol. Whenever in the past the accused took loan from me, and he returned the same to me). I had not told to any of my family member that I had given Rs.2 lacs friendly loan to the accused.............................. The accused has assured to repay the amount within 2-3 months. The accused had Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 11 of 16 12 handed over me the cheque at the shop of my son..............Ans. I accepted the cheque of Rs.1 lacs as part payment because accused sought time for remaining payment of Rs.1 lacs on the basis of financial crises and I accommodated the accused".
"It is correct that I have not withdrawn the amount from the bank which I had given to the accused. It is also correct that I had not arranged the amount from my relatives".
Thus, the testimony of complainant has stood upto the cross examination and no major contradiction has cropped up during cross examination of complainant. The facts of the case Amjad Pasha relied upon by the accused are not applicable to the facts in hand.
15. Now the accused has produced one Whatsapp message which is mark-A. No date, month or year of the said whatsapp message mark-A has been mentioned by the accused during the entire trial. Further despite denial of complainant as to receipt of this message, accused has not bothered to prove this document nor Certificate U/s 65 B of Indian Evidence Act has been annnexed with this Whatsapp message. Therefore, mark-A is of no use to the accused to prove his defence.
16. Further, the accused has taken plea that he issued cheque in question to the complainant as blank signed cheque for the purpose of security. Now to prove his defence, accused has produced Mr. Subhash Chand as DW-1 who has deposed that complainant was running a committee at the Saloon of his son and DW-1 had taken last committee and complainant had taken 03 or 04 committee and complainant used to take cheque from the person who takes the Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 12 of 16 13 committee and accordingly a blank signed cheque was taken by the accused as security when accused took the committee. Admittedly, DW-1 could not produce even a single document pertaining to a committee and he also admitted that the cheque in question was not given in his presence.
Neither the accused nor DW-1 have disclosed the exact date, month or year when committee allegedly being run by complainant was commenced and the exact date, month or year when accused had taken the committee and the exact date, month and year when DW-1 had taken the committee. Both of them have not even bothered to disclose the name of other members or the amount of monthly subscription or the amount of committee. Therefore, the testimony of DW-1 is of no help to the accused being vague testimony.
17. As far as the plea regarding issuance of blank signed cheque is concerned, accused cannot escape his liability 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 handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 13 of 16 14 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, even for the sake of arguments, if it is considered that accused issued blank signed cheque, then no plausible reason is coming forward as to why complainant would enter a random amount of Rs01 lakh only in the cheque in question when complainant had opportunity to enter even higher amount in the cheque in question specifically when as per complainant, accused had taken loan of Rs02 lacs and cheque in question was issued only as part payment.
18. During final arguments, it has also been argued on behalf of the accused that the complainant has not shown the said loan in his ITRs and Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 14 of 16 15 complainant is running business of committee and complainant has also violated Govt Servants Conduct Rules 1960 as prescribed mode has not been followed by the complainant and thus, by way of present complaint, complainant is seeking recovery of unaccounted money. Therefore, the complainant is liable to be dismissed only on this ground and accused has relied upon the judgment of Kulvinder Singh (supra) and K Subramani (supra).
On the other hand, the complainant has opposed the same. Heard. Perused. The court has to consider the testimony of witnesses as a whole and the ratio of a judgment cannot be applied to the facts in hand blindly and after perusing the judgments relied upon by the accused, it is clear that the facts of the judgments relied upon by the accused are not applicable to the facts in hand.
Further, in the judgment of : Sheela Sharma vs Mahendra Pal 2016 Law Suit (Del) 4859 wherein it was held that non disclosure of loan advanced by complainant to the accused may attract penal provisions under the Income Tax Act but the same has no consequences on the proceedings of the complaint U/s 138 N I Act. Similarly non disclosure of loan advanced by complainant to the accused to his employer ie MCD may attract disciplinary action against the complainant on administrative side but it cannot frustrate the proceedings U/s 138 N I Act.
Therefore, in view of the dictum of the above mentioned judgment of Hon'ble High Court of Delhi as well as on the principles of unjust enrichment, the plea of the accused is not sustainable and the case of complainant cannot Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 15 of 16 16 fail only on the ground that complainant has failed to reflect the loan advanced to accused in his ITR or complainant has failed to grant loan to the accused in the prescribed mode of Govt Servants Conduct Rules 1960.
19. 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 Shiv Shankar Mehto s/o Sh. Jag Mandal Mehto guilty for the punishable U/s 138 N I Act. Hence, he stands convicted.
20. Let the convict be heard on the quantum of sentence on 17.08.2018. Copy of the judgment be given dasti to the convict. Digitally signed
PRABH by PRABH
DEEP KAUR
Announced in the open court
on 23.07.2018
DEEP Date:
2018.07.24
KAUR 16:30:27 +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 Kundan Lal Jaweria Vs. Shiv Shankar Mehto CC No. 409/2017 Page 16 of 16