Delhi District Court
Rajeev Seharawat vs Narender Sharma on 31 October, 2018
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 5777/2016
Rajeev Seharawat
S/o Sh. Daljeet Singh
R/o H.No. 57, Vill.-Sahipur,
Shalimar Bagh, Delhi-110088 ............Complainant
Versus
Narender Sharma
S/o Sh. Rajender Sharma
R/o H.No. 282, A-Block, Majlis Park,
Adarsh Nagar, Delhi-110033 .............Accused
JUDGMENT
(1) Name of the complainant, : Rajeev Seharawat
parentage and address S/o Sh. Daljeet Singh
R/o H.No. 57, Vill.-Sahipur,
Shalimar Bagh, Delhi-110088
(2) Name of accused persons, : Narender Sharma
parentage and addresses S/o Sh. Rajender Sharma
R/o H.No. 282, A-Block, Majlis Park,
Adarsh Nagar, Delhi-110033
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 28.04.2012
(6) Date of reserve of order : 11.10.2018
(7) Date of Final Order : 26.10.2018
(8) Final Order : Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 1
2. Brief facts relevant for the decision of the case are as under:-
That the accused received a friendly loan of Rs.2,47,000/- from the complainant for a period of 3 months and in order to discharge the said liability, the accused issued a post dated cheque bearing no. 027535 dated 28.08.2011 for a sum of Rs.2,47,000/- drawn on Union Bank of India, Azadpur, Delhi. At the request of accused, the complainant presented the cheque multiple times in the bank but every time it was returned unpaid with the remarks "funds insufficient" vide returning memos dated 26.09.2011, 27.12.2011 & 24.02.2012. Thereafter, the complainant issued a legal notice dated 14.03.2012 through his counsel by registered A.D./speed post/courier. However, the accused neither replied to the notice nor made any payment. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record, cheque bearing no. 027535 dated 28.08.2011 for a sum of Rs.2,47,000/- drawn on Union Bank of India, Azadpur, Delhi as Ex. CW1/6, cheque returning memos dated 26.09.2011, 27.12.2011 & 24.02.2012 as Ex. CW-1/3, Ex. CW-1/4 & Ex. CW-1/5, legal notice dated 14.03.212 as Ex. CW-1/1, courier receipt & postal receipts as Ex. CW-1/2, tracking report as Ex. CW-1/7 and A.D. Card as Ex. CW-1/8.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 23.07.2013 to which he pleaded not guilty and claimed trial. The accused took the defence that he had given the cheque in question in a blank signed manner as security to the complainant towards loan of Rs.10,000/-. He denied his liability towards the complainant. He admitted receiving of legal notice.
5. Thereafter, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused stated that he took a loan of Rs.75,000/- from the complainant in the year 2011 and the cheque in question was given in a blank signed manner to him. He denied receiving of legal notice. He alleged that he has a liability of Rs.70,000/-. The accused preferred to lead defence evidence. The court closed the opportunity of the accused to lead the defence evidence on 27.03.2017 as he was playing delaying tactics.
Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 2
6. While drafting the judgment, it came to the court that an opportunity was given to the accused to cross-examine the complainant, however, neither the accused cross-examined the complainant nor complainant's evidence was closed. An application was moved under Section 311 of Cr.P.C. by the Ld. Counsel for the accused which was allowed by the court order dated 21.07.2018. During the cross-examination, complainant stated that on 25.05.2011, the accused demanded a friendly loan of Rs.2,50,000/-, however, he gave Rs.2,47,000/- in cash to the accused without any interest. He also stated that he used to file income tax returns till the year 2012. He also stated that the contents in the cheque in question were filled by friend of the accused on the directions of the accused. He also stated that he has settled the case with the accused in the Mediation Centre for a sum of Rs.1,20,000/-. He denied the suggestion that the accused had taken friendly loan of Rs.40,000/- from him. He denied the suggestion that he has misused the blank signed cheque of the accused. He denied the suggestion that he has settled the case for Rs.1,20,000/- only as he had to take Rs.40,000/- from the accused.
7. Thereafter, final arguments were addressed on behalf of both the parties.
8. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 3
10. 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) 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.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "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".
11. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
13. In the present case, the accused has admitted in the notice under Section 251 Cr.P.C. that the cheque in question bears his signature and he issued the same in favour of the complainant. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 4 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
14. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was given by him to the complainant as security cheque is not sufficient to rebut the presumption.
15. In my opinion, the accused has failed to rebut the presumption of legal liability. It is pertinent to note that the accused has taken contradictory stand at different stages. At the time of framing of notice, he stated that the cheque in question was given as security against the loan of Rs.10,000/- whereas at the time of recording of statement of accused under Section 313 of Cr.P.C., it was alleged by him that he took a loan of Rs.75,000/- and he has a liability of Rs.70,000/- only. During the cross-examination of complainant, it was suggested to the complainant by Ld. Counsel for the accused that the accused has taken a loan of Rs.40,000/- from him. Thus, the inconsistent stand taken by the accused at different stages is sufficient to infer that he has failed to rebut the presumption of legal liability. No attempt has been made by the accused to examine himself. No cogent evidence has been adduced by the accused in support of his plea that the complainant has misused the cheque in question. The complainant has filed returning memos Ex. CW-1/3 to Ex. CW-1/5 which show that the cheque in question was presented number of times. Thus, the accused ought to have become aware of complainant's intention of presentation of cheque after the first dishonour. However, he has not raised any protest. If the said version of the accused was indeed true he ought to have filed a complaint with the police against the complainant for misusing his cheque. The accused, to rebut the presumption under Section 139 read with Section 118 of the NI Act, has to set up at least a probable defence. The defence cannot be frivolous or moonshine. It cannot be merely a "possible" defence. Accused has cross-examined the complainant but nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unrebutted. No effective defence has been put forth by the accused and no effective cross-examination has been conducted. There is nothing on record which can suggest that the complainant has misused the cheques of the accused.
16. Moreover, the accused did not step into the witness box to stand by his defence. The Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 5 defence taken by the accused at the time of framing of notice and while recording the statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. can not be considered as evidence. For this, I rely upon the judgments of Hon'ble High Court of Delhi, V.S. Yadav v. Reena [172(2010)DLT 561] and Bansal Plywood v. State(NCT of Delhi) and Anr. (CRIMINAL APPEAL No. 17 of 2017) decided on 04.09.2017. It was held that "the defence taken by the respondent no. 3 at the time of framing of notice under Section 251 Cr.P.C. or the defence taken by her in her application under Section 145(2) NI Act or her explanation under Section 313 Cr.P.C. read with Section 281 of the Code recorded on 4.02.2015 is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872. When person appears in the court as a witness, he is required to state facts on oath under Section 4 of Oaths Act, 1969 and his examination in chief is tested on touchstone on cross-examination by other party. This is actually the evidence. Therefore, the plea taken in application under Section 145(2) NI Act or defence taken at the time of framing of notice under Section 251 of Code or the explanation under Section 313 read with Section 281 of the Code by any stretch and imagination can not be treated as "evidence". This is only a defence which should have been proved by cogent evidence to rebut the presumption under Section 139 and 118 of the Act".
Thus, the bald plea of the accused having not been substantiated by cogent evidence would not be sufficient to rebut the presumption of law against him.
17. It was argued by Counsel for the accused that the complainant has not examined his father as a witness in the case. It was also contended that the complainant has not disclosed his source of income for providing loan of Rs.2,47,000/-. It was also argued by Ld. Counsel for the accused that the complainant has settled the matter for a sum of Rs.1,20,000/- in the Mediation Centre vide settlement agreement dated 19.11.2015. It was also argued that he has not placed on record any agreement or receipt to show that the accused had been paying interest to him on the loan amount and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. Non examination of witnesses and non filing of documents are not fatal to the case of the complainant. For this, I rely upon one judgment Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that "para 24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.". Thus, there is no force in the submission of Counsel for the accused. As regards submission of the counsel regarding Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 6 settlement agreement, this court is of the opinion that whatever transpired in the Mediation can not be disclosed before the court and the settlement agreement can not be produced as evidence as it will affect the confidentiality of the things transpired in the mediation proceedings. The accused is not entitled to use the agreement as evidence before the court as it has no legal effect. The party may agree to settle the matter for a lesser amount than the cheque amount for achieving peace and harmony and thus, the amount arrived in the mediation can not be used as evidence to infer that the amount in question is not the actual amount due towards the complainant.
18. In view of the above, this court is of the considered opinion that the accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. The complainant has led cogent evidence to prove his case. Therefore, complainant has successfully proved his case beyond reasonable doubt.
19. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
20. Let the accused be heard on quantum of sentence.
21. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT RAJPOOT Date: 2018.10.31 18:14:18 +0530 ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT) TODAY i.e. 26th OCTOBER 2018 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 7 IN THE COURT OF MS. PRIYANKA RAJPOOT, MM, NORTH-WEST, ROHINI COURTS, DELHI. CC No. 5777-2016 Rajeev Seharawat v. Narender Sharma 31.10.2018 ORDER ON SENTENCE Present: Complainant with Ld. Counsel Sh. Hanish Sehrawat. Convict with Ld. counsel Sh. Ramanand.
Arguments heard on the point on sentence. It is stated by ld. Counsel for the convict that convict is the only breadwinner in his family and is very poor person and is having family consisting of wife and one daughter. It is further stated that he is presently earning only about Rs. 8,000-10,000/- per month, therefore lenient view may be taken.
Per contra, Ld. Counsel for the complainant has submitted that the matter pertains to the year 2012 and relates to loan transaction and the convict has defrauded him as cheque in question was dishonored.
I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2012 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of Probation of Offenders Act as the matter pertains to the year 2012 and cheque bouncing cases are on high rise and releasing the convict on probation would not have deterrent effect in the society.
Considering the totality of circumstances, convict is sentenced to simple imprisonment till the rising of the court and fine of Rs.3,35,000/- out of which Rs.10,000/- is to be paid to the State and Rs.3,25,000/- as compensation to the complainant under Section 357 Cr. P.C. In default of payment of fine, convict shall undergo further simple imprisonment for a period of 03 months.
At this stage, an application under Section 389(3) of Code of Criminal Procedure has been moved on behalf of the convict for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed.
Contd......2 Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 8 ::2::
The aforesaid sentence is suspended for a period of 30 days 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. 25,000/- with surety of like amount. Requisite bail bonds furnished. Same are accepted till 30.11.2018.
Copy of this order be given to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT RAJPOOT Date: 2018.10.31 18:14:07 +0530 Announced in the open (Priyanka Rajpoot) court on 31st October 2018 MM (N/W), Rohini Courts, Delhi. Rajeev Seharawat v. Narender Sharma CC No. 5777/2016 Page no. 9