Delhi District Court
Complainant vs Smt. Lilawati on 10 July, 2013
IN THE COURT OF SH. SUDHIR KUMAR SIROHI,
METROPOLITAN MAGISTRATE - 02, DWARKA COURTS,
NEW DELHI
Lalit Narain Jha, S/o Sh. Jatadhar Jha
R/o RZ-C5A, Mahavir Enclave, Part-I,
Palam Dabri Road, New Delhi-45.
... Complainant
Versus
Smt. Lilawati, W/o Late Shri Nageshwar Singh
R/o Qtr. No. 847, Sector -4,
R. K. Puram, New Delhi-110022.
Also at
West Block-V,
D. G. Nai, Wing-1, 2nd Floor,
R K Puram, New Delhi-110022. ....Accused
P.S : Najafgarh
U/s : 138 Negotiable Instruments Act
1. Serial No./CC No. of the case : 2399/1/08
2. Name of the complainant : Lalit Narain Jha, S/o Sh. Jatadhar
Jha,R/o RZ-C5A, Mahavir Enclave,
Part-I, Palam Dabri Road, New
Delhi-45.
3. Date of Institution : 20.02.2008
4. Name of the accused, his : Smt. Lilawati, W/o Late Shri
parentage and residence Nageshwar Singh,R/o Qtr. No. 847,
Sector -4, R. K. Puram, New
Delhi-110022.
Also at:- West Block-V, D. G. Nai,
Wing-1, 2nd Floor, R K Puram, New
Delhi-110022.
CC No. 2399/1/08 Page 1 of 7
5. Date when judgment was : 06.05.2013
reserved
6. Date when judgment was : 10.07.2013
pronounced
7. Offence complained of and : Offence Under Section 138 of
proved Negotiable Instruments Act
8. Plea of accused : Accused pleaded not guilty and
claimed trial
9. Final Judgment Conviction
-:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the complainant Lalit Narayan Jha (hereinafter referred to as N.I Act) against the accused Shakuntala.
2. In the present complaint, the complainant has submitted that accused had approached the complainant for friendly loan of Rs. 3,00,000/- three- four years ago. Considering the friendly relations between them, the complainant gave Rs. 3,00,000/- to the accused as friendly loan. The said loan was repayable shortly. It is further submitted that accused to discharge of his legal liability has issued the cheque bearing no. 520875 dated 26.12.2007 of Rs. 3,02,000/- drawn on Punjan National Bank., R.K Puram Branch, New Delhi in favour of the complainant which when presented by the complainant with its banker for encashment was returned unpaid by the Drawee Bank with the returning memo dated 27.12.2007 for the reason "Insufficient Funds". Thereafter, the complainant served a Legal Demand Notice dated 08.01.2008 by Registered Post calling the accused to make the payment of dishonoured cheque. It is further averred that despite service accused failed the make the payment of cheque amount demanded through Legal Notice, thereby committing the offence CC No. 2399/1/08 Page 2 of 7 Under Section 138 of N.I Act for the prosecution of which the present complaint has been filed.
3. After considering the material on record, the cognizance of the offence U/s 138 of N.I Act was taken and accused was summoned on 21.02.2008. The accused appeared in the court on 21.02.2009 and was admitted to bail.
4. Notice U/s 251 Cr.P.C. was framed against the accused on 21.02.2009. At the time of framing of notice, the accused pleaded not guilty and claimed trial.
5. The complainant has examined himself as as CW 1 and filed his evidence by way of affidavit and relied upon the following documents : - (A) Original cheque in question is exhibited as Ex. CW1/A. (B) The cheque returning memo is exhibited as Ex. CW1/B. (C) Office copy of the legal notice is exhibited as Ex. CW1/C. (D) Postal receipt and UPC receipt are exhibited as Ex. CW1/D and Ex. CW1/E respectively. The CW1 was discharged after cross- examination.
6. CW2 Ms. Vimla Devi (wife of complainant) was also examined by complainant and after that complainant evidence was closed.
7. The accused was examined U/s 313 Cr.P.C. and all the incriminating evidence were put to the accused. In his statement accused submitted that she did not receive any loan loan from the complainant and she gave blank cheque in question to her son in law Aakash Kashyap in year 2004 and she does not know how complainant got cheque. The accused denied the receipt of legal demand notice but stated that her address on legal notice is correct.
8. The accused has examined himself in his defence as DW 1 and produced one photocopy document issued by her daughter Mrs. Anita Kashyap CC No. 2399/1/08 Page 3 of 7 in lieu of loan of 40000 by complainat to her daughter (mark DW1/A)and examined Bank witness Ms Madhu juneja as DW2. Ld. Counsel for the Complainant cross-examined DW 1&2.
9. Final Arguments on behalf of the both the parties heard.
10. Ld. Counsel for the Complainant argued that the accused in his defence evidence has raised the questions that cheque in question was given to her son in law Mr. Akash Kashyap and was not given in lieu of loan by complainant. It is further argued that the accused defence is moonshine as in her deposition accused on one side stated that three blank cheques were given to wife of complainant in lieu of security of laon given to her son in law and on other side she stated that neither she nor her son in law borrowed the loan against the cheque in question. It is further argued that the accused to discharge his liability had issued the cheque in question, therefore, the complainant has satisfied every ingredients of offence U/s 138 N.I. Act. It is further argued that accused has failed to rebut the presumption as contemplated by Section 118 (b) and 139 N.I Act, thereby the accused has committed the offence U/s 138 of N.I Act.
11. On the other hand, the main argument of the Ld. Counsel for the accused is that it is the duty of the complainant to prove its case but the complainant failed to file any agreement/document to prove the alleged friendly loan given by the complainant to the accused. It is further argued that cheque in question was given by accused to her son in law M. Akash Kashyap and not to complainant moreover contents of cheque were not filled by accused and no notice was received by accused, therefore, accused is not liable to be convicted for the offence U/s 138 of N.I Act.
12. Firstly, I deal with the contention of accused with respect to Legal Demand Notice. It is alleged that accused had not received the Legal Notice Ex.
CC No. 2399/1/08 Page 4 of 7CW1/C. Ld. Counsel for the complainant has argued that the complainant has sent the legal demand notice Ex. CW1/C through Postal Receipt Ex. CW1/D and UPC Receipt Ex. CW1/E. It is further argued that accused himself has admitted in her statement under section 313 that address on legal notice is correct, so in view of presumption under section 27 general clauses act notice duly served.
13. Perusal of file shows that legal notice was sent to accused on two addresses I.e 1)Qtr no.847 sector 4 RK puran New Delhi 110022 and 2) West Block V, D.G NAI, Wing 1, 2nd floor Gate no 5 Sctor I RK Puram New Delhi 110022. through registered post and UPC vide EX.CW1/D and CW1/D. Moreover accused also during her statement under section 313 Cr.P.C stated that her address on legal notice is correct.
Therefore in view of presumption under section 27 general clauses act notice is duly served.
14. Second defence of accused is that cheque was not given by her to complainant rather she gave cheque to her son in law late Mr Aakash Kashyap in 2004. This defence of accused is itself contradictory as during her section 313 Cr.P.C statement accused stated that " I gave cheque in question after putting signature to my damad Sh. Aakash Kashyap due to relationship in year 2004 . he did not tell the reason why he requires a blank cheque from me . I do not know how the cheque in question reached to the complainant." while during her deposition under section 315 Cr.P.C accused stated that " the wife of complainant had taken three blank signed cheques bearing no 520873 to 520875 of the accused as security of loan given by complainant's wife to her late son in law." Again during her cross examination accused stated that " neither I nor my son in law borrowed the loan against the cheque in question". These statements of accused are itself contradictory as on one side accused stating that she does not know how complainant got cheques as cheques were handed CC No. 2399/1/08 Page 5 of 7 over to her son in law and no transaction was entered between her son in law and complainant while on other side she is stating that three cheques were given as security of loan to wife of complainant, it is pertinent to mention that cheque in question is one of those cheques bearing no. 520875 which were given to wife of complainant by accused therefore this defence of accused does not gain confidence of court.
15. Third defence of accused is that cheque does not bear handwriting CW1 during his deposition stated that " I filled the cheque in question at the instance of accused but the same was signed by her" accused never denied that cheque was not signed by her rather she said that cheque was not filled by her so cw1 also affirmed the same but no law requires that all body of cheque must be filled by owner of cheque /drawrer of cheque moreover when cheque was handed over to CW1 it was complete with all details as deposed by CW1, therefore this defence of accused also holds no water.
16. CW2 in his deposition stated that amount was given by her as she use to keep amount in home and at that time and CW1 was present there, it does not mean that loan was advanced by CW2. Moreover to prove mark DW1/A Mrs. Anita Kashyap was not called in court. In the facts and circumstances of the present case, on appreciation of the evidence and on the basis of material on record, I hold that accused failed to able to adduce the rebuttal evidence by raising a probable defence. Complainat has satisfied ingredients of section 138 NI act : (1) that cheque was drawn by accused (2) it was on an account maintained by accused with a banker; (3) it was for payment of any money to him from out of that account; (4) it was in discharge of her liability (5) it was returned unpaid because of the amount of money standing to the credit of that account being insufficient to honour the cheque (6) that the cheque has been presented within a period of six months from the date on which it was drawn (7) that the CC No. 2399/1/08 Page 6 of 7 complainant had made a demand for payment of the said amount by a notice in writing(8) that within 15 days of the receipt of information regarding return of cheque accused failed to make payment of the amount to complainant and accused has failed to rebut the presumption in favour of complainant under section 118 (b) and 139 N.I Act.
17. Accused is convicted of the offence under section 138 NI Act. Let the accused be heard on quantum of sentence.
ANNOUNCED IN THE OPEN COURT ON 10.07.2013.
All the pages from 1 to 7 are
signed by me. (SUDHIR KUMAR SIROHI)
METROPOLITAN MAGISTRATE - 02,
DWARKA COURTS,NEW DELHI.
CC No. 2399/1/08 Page 7 of 7