Delhi District Court
Anju Arora vs . Vikas Gupta on 15 February, 2016
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET COURT, NEW DELHI
CC No. : 212/2/13
U/s : 138 NI Act
Anju Arora Vs. Vikas Gupta
JUDGMENT
a The Sl. No. of the case : 212/2/13
b The date of dishonor of cheque : 21.04.2011(" Funds insufficient" )
c The date of Institution of the case : 07.07.2011
d The name of complainant : Ms. Anju Arora,
W/o Sh. Deepak Arora,
R/o H.No. C11, Amar Colony,
Lajpat Nagar, New Delhi24.
e The name of accused : Sh. Vikas Gupta,
R/o H. No. J220, Shiv Ram Park,
Shani Bazar Road, New
Delhi110041.
f The offence complained of :138 NI Act
g The plea of accused : Pleaded not guilty
h Arguments heard on : 30.01.2016
i The final order : Convicted
j The date of judgment : 15.02.2016
BRIEF STATEMENT OF REASONS FOR DECISION (Metropolitan Magistrates Judgment U/s 355 Cr.P.C):
1 Facts of the case:
It is the case of the complainant that the accused in discharge of friendly loan advanced by complainant, issued a cheque bearing No. 118895 dated CC No. 212/2/13 1 of 10 30.11.2010 for Rs. 98,480/ drawn on State Bank of India, G3, Vikas Puri, New Delhi 110018 favour of the complainant and the said cheque was returned dishonoured on presentation with remarks " Funds Insufficient " vide bank return memo dated 21.04.2011 and despite service of notice dated 19.05.2011, he had not made the payment within the stipulated period. On these facts complainant has filed present complaint and predecessor court issued summoning orders on 07.07.2011.
2 Thereafter, notice was framed against the accused on 31.10.2011. As per the procedure laid down in Rajesh Agarwal Vs. State (Judgment of Delhi High Court) defence plea was recorded. Thereafter, application U/s 145(2) N.I Act was allowed, presummoning evidence was adopted by the complainant in post summoning evidence. Complainant was cross examined and CE was closed on 16.10.14. Thereafter, statement of accused was recorded wherein he deposed that he has an agreement with the complainant for sale of shop at Eros Metro Mall and the complainant had paid part payment which was 25% of the total sale amount. However, the complainant did not pay rest of the amount. When the part payment was made 2% commission was released to the accused and out of that the present cheque was given to the complainant which was PDC subject to compliance by the complainant of the terms of the agreement which was oral. It was also settled between the complainant and builder Ajay Enterprises in writing that at the time of booking 25%, within six months date of booking as 70% and at the time of possession as 5% + other charges will be paid but till date the remaining amount was not paid by the complainant. The accused has preferred to lead evidence in CC No. 212/2/13 2 of 10 his defence and examined one Vishal as DW1, himself as DW2 and Sushil Chopra as DW3.
3 Complainant proved the following documents in his presummoning evidence : i Cheque in question given by accused to complainant are Ex.
CW1/A.
ii Bank returning memo is Ex. CW1/B.
iii Legal notice is Ex. CW1/C.
iv The postal receipts and acknowledgment slips are Ex.
CW1/D.
v. Reply of accused is Ex. CW1/E.
vi. Complaint is Ex. CW1/F.
vii. Affidavit of evidence of complainant is Ex. CW1/1.
4 Settled Law:
Presumption in favour of the holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
The ingredients to prove the commission of offence under Sec. 138 CC No. 212/2/13 3 of 10 NI Act have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said CC No. 212/2/13 4 of 10 amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt ofar the said notice"
5 Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not. 5.1 The first ingredient of the offence stands proved as original cheque is placed on record as Ex. CW1/A and issuance of same is admitted by the accused in his defence plea to the notice framed u/s 251 Cr.P.C as well as in his own oral testimony (cross examination) as DW2. It is settled law that a signed cheque by the account holder is a complete instrument and the rest of the portions of the cheque can be filled by the complainant. Hence the first ingredient stands proved. 5.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheque are admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898.
In view of the aforesaid law, the presumption under Sec. 139 NI Act works in favour of the complainant once he files the necessary documents like the dishonored cheque, returning memo, legal notice and delivery proof and avers that the cheque was issued for legally enforceable debt or liability which the accused has failed to pay despite expiry of 15 days of the delivery of legal notice. Once this presumption of law is raised, onus is upon the accused to rebut the same either by CC No. 212/2/13 5 of 10 exposing the complainant in the cross examination or by bringing his own defence evidence including documentary evidence therein. The simple case of the complainant is that the accused issued her the cheque in question as PDC for the friendly loan given to him by the complainant. In her support she has filed the original cheque, returning memo, legal demand notice, reply to the legal notice and the postal receipts showing proof of service of legal notice. On his part the accused has taken a consistent defence right from the beginning till the end i.e. during the defence plea u/s 251 Cr.P.C, cross examination of the complainant, his statement under 313 Cr.PC, his defence evidence as well as in final arguments. The defence is that the cheque in question was given as security for the transaction he entered into with the complainant for purchase of a chop in Eros Metro Mall in Dwarka. However, the complainant paid only 25% of the amount and rest of the amount was not paid. The cheque in question was only given for payment of the share of the commission to the complainant for role of accused as agent therein and sharing of the commission being a trade practice, he is not liable to honour the cheque in question as the complainant has not honoured the agreement of sale of shop by making rest of the payment.
However, since, the accused has not filed any receipt for booking done by the complainant nor he has filed any document to show that he used to pay half commission to his client/complainant nor any written agreement for sale of the shop, nor he has given any reason for not filing of the same, the defence of the accused is not worthy of credit and will not weigh with this court without any documentary evidence. The accused has only filed a computerized invoice which CC No. 212/2/13 6 of 10 is mark A which cannot be relied upon by him as the same is not the original print out nor the same is accompanied with the mandatory certificate u/s 65 B Evidence Act. Further the accused has admitted that he maintains the register for payments of commission to the client for sale of the shop but he has not filed any such copy in the court. Also DW3 was brought at the instance of the accused himself for corroborating the factum of sale of the shop and he is the stated owner of the said mall but he has showed his ignorance about the alleged transaction made by the accused with the complainant. Hence, the accused has not been able to rebut the presumption that the cheque was issued for a legally recoverable debt or liability. Hence, this ingredient stands proved. 5.3 The third ingredient of the offence is that cheque must be presented to the bank within a period of six months from the date mentioned on it. The cheque is dated 30.11.2010 and is Ex. CW1/A and which was returned back unpaid vide bank returning memo Ex. CW1/B on 21.04.2011. So it is evident that same was presented for payment within the statutory period of six months. Hence, this ingredient stands proved.
5.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheques were returned unpaid for the reason "insufficient funds ". The original bank returnmemo is Ex CW1/B placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/B went uncontroverted. Hence, this ingredient stands proved.
5.5 The fifth ingredient of the offence is that the demand notice must be issued CC No. 212/2/13 7 of 10
to the accused within 30 days of the intimation of dishonour of cheque and same be served upon the accused. As accused No. 2 has admitted receipt of legal notice as he duly replied the same vide Ex. CW1/E, the service thereof is proved. Hence, it does not lie with the accused to say that he did not receive the legal notice. Hence, this ingredient also stands proved.
5.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. It is clear that the accused did not make the payment within 15 days and that is why the complainant has filed the case. As the accused did not pay the due amount within the statuary period, this case was accordingly filed by the complainant. Hence, this ingredient also stands proved.
6 In view of the foregoing discussion it is proved that the cheque was presented against a legally recoverable liability in favour of the complainant and the cheque got dishonoured for reason of insufficient funds, the cheque was drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice.
DECISION
7. In view of the aforesaid the aforesaid accused is convicted for the offence under Sec. 138 NI Act and he be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 15.02.2016 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 212/2/13 8 of 10
IN THE COURT OF SH. ASHOK KUMAR, MM07,
SOUTH EAST, SAKET COURTS, NEW DELHI
CC No. : 212/2/13
U/s : 138 NI Act
Anju Arora Vs. Vikas Gupta
ORDER ON POINT OF SENTENCE
Present : Complainant in person with Ld. Counsel Sh. V.P. Kaushik.
Convict in person with counsel Sh. Mayank Mohan.
Vide separate judgement of even date, the accused is convicted for commission of offence under Sec. 138 NI Act for nonpayment of cheque amounting to Rs. 98,480/. Here, it is pertinent to mention that I am proceeding to listen on the point of sentence with the consent of the convict and his counsel today itself and also to make the order on point of sentence. It is also pertinent to mention that perusal of the file will make it clear that procedure of summon trial case has been followed by the Ld. Predecessor MM and this court in the present case. I mention this fact since in summary triable case, no punishment above one year and fine exceeding Rs. 5000/ can be imposed. But in summon trial case punishment as prescribed u/s 138 NI Act can be given if the court thinks it fit in the circumstances of the case.
It is stated by the convict he is aged about 42 years, that he is working as self employed person in property work. He has a family consisting of widow mother, wife and two minor children and he submits that he is the only person to take care. It is stated that a lenient view may be taken against the convict CC No. 212/2/13 9 of 10 while imposing the sentence and convict be not sentenced to imprisonment. Convict submits that he is not a previous convict in any offence.
In view of the fact that the matter is pending since year 2011 and is more than 5 years old and keeping in view the fact that the cases under Sec. 138 NI Act are unduly clogging the dockets of the courts leading to docket explosion and extraction of judicial time which could have been given to other cases and on the other hand due to the dishonest issuance of cheque, the same is eroding of credibility of such instruments, this court does not deem it necessary to extend the benefit of Probation of Offender Act to the accused.
In view of the facts and circumstances, the convict is directed to suffer simple imprisonment of one years and to pay fine Rs 1,96,960/ (which is the double of the cheque amount) and in default of payment of the same, the convicts shall suffer simple imprisonment for further six months each for offence punishable u/s 138 NI Act. Hence, if the fine is not paid then the total period of simple imprisonment is one and half years each. Since the complainant has suffered lot of harassment and has had to launch and sustain prosecution for a long period by denial of legally recoverable amount due to him, hence all of such fine be paid as recompense to him. Copy of judgment and order on sentence be given to the convict.
Announced in the open (ASHOK KUMAR)
Court on 15.02.2016 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 212/2/13 10 of 10