Delhi District Court
Mr. Sunil Kumar vs . M/S Narain Jewellers on 17 March, 2010
1
IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ
/ JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE
COURTS, NEW DELHI
Mr. Sunil Kumar Vs. M/S Narain Jewellers
CC NO. 1088/1/09
U/s 138 N.I. Act
JUDGMENT
(a) The Serial number of the case : 1088/1/09
(b) The date of the commission of the
offence : 1.10.1997
(c)The name of the complainant : Sunil Kumar
Mehra, Proprietor of M/S
Technoxl Associates
59/11, Kalkaji, New Delhi
(d) The name of the accused person,
and his parentage & residential address :1. M/S Narain Jewellers, New Delhi House, Barakhamba Road, New Delhi-01
2. Amrit Narain Mehra , Karta,M/S Narain Jewellers , New Delhi House, Barakhamba Road, New Delhi-01 also at M 10, GK Park 1, New Delhi
(e) The offence complained of or proved : U/S 138 N.I. Act
(f) The plea of the accused : Pleaded not guilty
(g) The Final Order : convicted
(h) The date of order : 16.2.2010 Facts as borne out from the complaint are as follows:
1. The case set up by Complainant Firm is that it had granted a loan of Rs. 2,50,000/- to accused and accused issued a cheque 2 bearing No. 352505 dated 31.03.1997 drawn on Catholic Syrian Bank Ltd., Connaught Circus, New Delhi which was returned unpaid on presentation by the drawer banks for "Insufficient Fund"
vide return memo dated 01.10.1997. The complainant made a demand for the payment of the said amount of money by giving a demand notice to accused through registered A.D. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter the complainant has filed this complaint U/S 138 of Negotiable Instrument Act, 1881 (hereinafter " the Act") against the accused.
2. On 3.8.99 accused has appeared pursuant to the summons issued by the Court. On 22.10.1999 the particulars of the offence were read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the complainant has examined Sh. Sudhir Kumar Mehra, Attorney as CW1, Sh. Purshottam Lal is examined as PW2, Sh. Dinesh Sharma, Clerk from Khatri Co-operative Bank is examined as PW 3 and Sh. Shaji Kurien , Clerk-cum-cashier is examined as PW 4.
4. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation. In his examination U/s 313 Cr.P.C, the accused has submitted that he had given the cheque as a blank cheque alongwith other blank cheques to the complainant because of relations with complainant and various dealings with complainant. Accused further stated that the complainant filled the amount in the cheque (issued by accused in blank form) and got it dishonored. He further stated that he was not to pay the loan amount as he had already paid the amount due.3
Accused further stated that he did not receive any legal notice and got only a telephonic call from complainant regarding dishonouring of the cheque and received a letter from the complainant, stating that he was in urgent need of Rs. 2,50,000/- and as such accused gave him a cheque of Rs. 50,000/- and another cheque of Rs. 2 lacs, and both cheques were encashed as the complainant was in need of funds. Accused in his defence has examined himself as DW1.
5. I have heard arguments of learned counsels for parties and have gone into the written arguments as well as additional written synopsis, supported with case law. Section 138 of the Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption U/S 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would dis-entitle him to grant the relief. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan; AIR 1999 Supreme Court 3762; it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. In State of Madras Vs. A. Vaidyanatha Iyer: AIR 1958 SC 61; it was held that it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule 4 as to the burden of proof in criminal cases and shifts the onus on to the accused".
6. In Hiten P. Dalal Vs. Bratindranath Banerjee; AIR 2001 Supreme Court 3897; Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/S 139 of the Negotiable Instruments Act. This section provides that "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." The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
7. The provisions make it clear that the presumption has to be rebutted by ''proof" and not by a bare explanation which is merely plausible. It was so held in Dhanwantrai Balwantrai Desai Vs. State of Maharastra, AIR 1964, SC 575.
8. From the aforestated settled legal principles, it is crystal clear that Section 118 of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact.
9. Keeping in view the aforesaid legal position, this court now moves on to consider the submissions made on record and the evidence led by the parties in support of their respective cases. In 5 order to buttress the case, counsel for defence has argued with vehemence that the complaint deserves dismissal owing to inherent contradictions between the complaint, the documents filed, the pre summoning evidence and the post notice evidence. It is argued that from the letter Ex. CW1/D 5 dated 17.7.97, apparently complainant had only demanded a sum of Rs. 7.5 lacs from accused and is no reference of any loan or any other outstanding amount. It is argued that accused has discharged the onus by not showing only the contradictions but also by leading the evidence and by producing documents showing the receiving of amounts by complainant. The reliance is placed upon the judgment cited in (1999 ) 3SCC 35 and it is argued that the circumstances that the complainant's case absolutely is at one he sought to be proved in evidence and thus cannot be relied upon.
10. Per contra, it is argued by counsel for complainant that from evidence, complainant has proved that the cheque in question was signed by accused which was dishonoured vide memo and despite service of legal notice, accused did not make payment. It is argued that during cross of CW1, nothing material has come out and the complainant has been able to prove his case. It is argued that accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the provisions of NI Act.
11. In the present case, what emerges out is that complainant had given a total loan of Rs. 16.05 lacs and in support he has proved the bank document Ex.CW1/1 which has been produced by PW3 Dinesh Sharma witness summoned from the Khatri Co- operative Bank where complainant was having bank account. The above said part of the statement of complainant is not challenged anywhere in the trial nor there is any challenge to the veracity of the 6 document Ex.CW1/1 either in cross examination of CW1 Sunil Kumar Mehra or in cross examination of witness Dinesh Sharma who has produced such document. Ex.CW1/1 is a document prepared by the bank coming from a independent source. Nowhere it has been pointed out that document Ex.CW1/1 is not reflecting the correct statement of accounts. The unrebutted statement of complainant Sunil Kumar Mehra which finds support from the document Ex.CW1/1 proves that the outstanding amount of loan given by him to the accused was Rs. 16.05 lacs and in discharge thereof, the cheque in question alongwith the other cheques was issued.
12. The submission placed by counsel for the accused about the contradictions and improvements in the case set up in complaint is not acceptable, given the meaningful reading to the allegations set up in the complaint and evidence led to prove it. It would show that the statement of the complainant has put up the facts in a clear manner as to how come this impugned cheque according to the complainant came to be issued by the accused. Dealing with the other submissions of defence, it may be noted that the legal position as laid down in Hiten P. Dalal (supra) is that once the complainant is able to show that a cheque was one covered by the Section 138 NI Act, a presumption arises against the accused and it is accused who has to discharge the initial onus by adducing the cogent and reliable evidence. The question whether the accused has discharged such burden is a question of fact and it is based on the appreciation of the evidence led by the parties. The accused has not disputed the impugned cheque Ex.CW1/B, bearing his signatures. It is the plea that the cheque was given by him in blank alongwith other cheques. This suggestion has been denied by the complainant when put to him in his cross examination. The question would immediately arise what other evidence, if any, has 7 been adduced by the accused to prove the above said fact. The reason of giving the cheque Ex.CW1/B in blank to the complainant has been set up as a ground of defence for the first time in the affidavit in evidence by the accused, deposing that parties were in relation to each other and were having business relations and complainant was in need of money and as such impugned cheque alongwith other cheques were given to him on his request. The accused in his cross examination by the counsel for the complainant has admitted that he was having a jewellery business and complainant was dealing with the business of industrial goods. Both are entirely different businesses and there is no question of any business dealings between the two of them as is submitted by the counsel for complainant. Even otherwise the accused is setting up this ground as a defence and it was for him to prove the same by adducing reliable evidence that there were business transactions between the complainant and the accused. There is no evidence at all by him on record. It cannot be said that simply by giving a suggestion to the complainant in cross examination or by an explanation offered in affidavit, the accused has discharged his onus on this point. The presumption under section 139 NI Act is a mandatory presumption and accused as observed in Hiten P. Dalal case (supra) must lead some proof in support thereof before his explanation is accepted by any court of law. This court has no hesitation to hold that there is no iota of evidence led by accused to show that there was any business transactions between the parties as claimed. In view of this position the explanation given by the complainant that it was towards the partial discharge of loan liability has to be accepted.
13. It has been argued that accused has paid Rs. 50,000/- through cheque No. 191566 dated 16.8.97 and Rs. 2 lac through cheque No. 191739 dated 3.9.97 already before the impugned 8 cheque Ex.CW1/B was presented. When confronted on this point, the answer given by the complainant is that this payment was with regard to some other payments and not with regard to the discharge of the liability under the impugned cheque. Since the accused has been taking up a plea of payment of Rs. 50,000/- and 1 lac (supra), it was for him to prove it by adducing the evidence. Accused as admitted by him in his cross examination was maintaining business accounts. No such accounts have been produced by him. No satisfactory reason has been given by him for not producing the record. The accused has withheld the best available evidence without reasonable justification. The adverse inference has to be drawn against accused that had it been produced, this would have gone unfavouring to his claim that payment of Rs. 2.5 lacs was made to the complainant in discharge of the liability under the cheque. In Kundan Lal Ralla Ram Vs. Custodian Evacuee Property Bombay AIR SC 1316, it has been observed that if a relevant evidence is withheld the court may draw a presumption to the effect if the same was produced it might have been gone unfavourable to the plaintiff.
14. The counsel for the accused submits that the complainant of his own has admitted that liability at the best was of Rs. 7.5 lacs vide its letter dated 17.7.97, while confronting to the complainant Sunil Kumar and proved as Ex.PW1/DB which amount has already been paid by the accused to the complainant. A perusal of the letter Ex.PW1/DB dated 17.7.97 shows that it has been addressed to the accused No. 1 by the authorized representative of the Complainant wherein the Complainant has been pressing for the release of certain amount as mentioned therein. Nowhere it has been explained by the counsel of the accused as to how come this letter Ex.PW1/DB is helpful to the defence of the accused in the present case. This court is of the view that this letter Ex.PW1/DB does not 9 throw any light as to how come it would be helpful to show that impugned cheque was issued without there being any debt or liability. This letter only speaks about the demand made by the Complainant for immediate release of certain amount. Nowhere in the entire letter it has been acknowledged that the liability of the loan amount has been restricted to the amount claimed therein. The letter Ex.PW1/DB in no way serve any purpose for the accused in the present case.
15. Another defence set up on behalf of accused is that the impugned cheque was given in blank and has been misused by the complainant even after having received the amount from the accused. This plea is raised by the accused for the first time through his affidavit in defence. There is no cross examination of Complainant Sunil Kumar Mehra on this point at all. It was very material fact and ought to have been put to him to elicit his answer. Even otherwise, it may be seen that no complaint has been made to any authority against the alleged misuse of the cheque nor matter has been brought to the notice of the complainant at any point of time except raising this plea before the court first time through the affidavit in defence. The plea as set up is only an after-thought and is having no factual basis. Reading of the evidence led by the accused, in entirety, would show that the evidence is inconsistent and the accused is gradually improving the case in the course of the trial. The defence raised by him was never put by him to the complainant in his cross examination and as such same is liable to be dismissed outrightly. Secondly, accused has not produced any proof in support of his defence on record.
16. Accused has also set up the defence of not having received the legal notice. The notice was posted at the same address of the accused which is the address given in the complaint. There is no 10 denial by the accused that this is not his address. The postal receipt has been proved by the complainant. Since the AD card of the service of the notice has not been returned back, the complainant wrote a letter and summoned the witness PW2 Purshotam Lal who has proved the report that the notice was duly served upon the accused. Notice since being sent through registered AD at the correct address of the accused, a Presumption Under Section 27 General Clauses Act has to be raised that the notice has been duly served upon him. Accused has not led any rebuttal evidence to disprove this fact. Accordingly, the denial of service of the notice by the accused is only false and is unbelievable. In support, reliance can be placed upon the judgment CC Alavi Haji V. Palepetty Muhammad and another 2007 (3) Crimes 120 SC. It was held in that case that Section 27 of General Clauses Act gives rise to the presumption that service of notice has been effected when it is sent to the correct address by registered post. The argument that notice U/S 251 Cr.P.C was not property served upon the accused is without merit. Nowhere it has been shown that any prejudice has been caused by the complainant on this amount.
17. Alongwith the written arguments, the counsel for the complainant has also placed on record the certified copy of the judgment from the Court of Ms. Neena Krishna Bansal and also the certified copy of the judgment from the Court of Shri Vikas Dhul MM Delhi. It may be observed that the case before the Court of Ms. Neena Krishna Bansal Under Order 37 CPC, filed by the other relative of the complainant, accused himself had taken up the plea in defence that he has made the entire payment to Shri Sunil Kumar Mehra which plea was not accepted by the Court concerned which had vide order dated 29.11.2001 had disallowed even Leave to Defend to the accused observing that the accused had not been able to furnish the details of the payment for the amount for which the 11 demand was made in the suit under Order 37 CPC. The second case bearing No. 1898/01 pertained to the complaint filed under section 138 NI Act by the complainant Sunil Kumar Mehra against Mughal India which was one of the business firms of the accused and in that complaint also, the accused had raised almost the similar defences, which were not believed by the Court concerned and accused was guilty for the offence under section 138 NI Act and was punished.
18. On consideration of the entire evidence, this court is of the view that the defence set up is neither definitive nor is consistent with the innocence of the accused. It is not having support of any evidence and is only to be rejected. The accused has not been able to produce on record any evidence to show that the alleged payments if any were having any connection with the impugned cheque Ex.CW1/B at all. Accordingly, the accused is held guilty for the offence under Section 138 NI Act.
19. Having gone through the provisions of Section138 of the Act, it is clear that evidence U/s 138 N.I. Act casts criminal liability punishable with imprisonment or fine or both on a person who issues a cheque towards the discharge of a debt or liability as a whole or in part and the cheque is dishonoured by bank on presentation. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the N.I. Act. Accordingly, accused is guilty for committing the offence U/S 138 N.I. Act. Let he be heard on the point of sentence on 24.2.2010 at 3.00 PM.
(Announced in Open Court (MS. RAVINDER BEDI)
on 16.2.2010 ) JSCC cum ASCJ cum Guardian Judge
(South)
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IN THE COURT OF MS. RAVINDER BEDI : M.M. /ASCJ /
JSCC / GUARDIAN JUDGE (SOUTH): PATIALA HOUSE
COURTS, NEW DELHI
Mr. Sunil Kumar Vs. M/S Narain Jewellers
CC NO. 1088/1/09
U/s 138 N.I. Act
17.3.2010
3.00 PM
ORDER ON SENTENCE
Present: Counsel for complainant alongwith AR of complainant.
Convict present in person with counsel Mr. Anil Airi.
1. I have heard the convict and his counsel on the Point of Sentence.
2. It is argued by ld counsel that convict is an old aged person, suffering from multiple ailments of hypertension, visual impairment as a result of a brain stroke happened in the year 2002. Ld. counsel has placed on record Clinic Summary of the convict. Ld. counsel submits that the convict is constantly attending the investigations and is under continual care of Dr. Vineet Suri (neurosciences). It is argued that the convict has a family to support. It is argued that convict has no criminal antecedents and the learned counsel for the convict has prayed that a lenient view be taken in the present matter as the convict is religiously appearing before the Court since the year 1999. It is submitted that certain amounts were paid at different occasions in the year 1999 to the complainant company.
3. Counsel for the complainant to the contrary argues that since the convict had issued the cheque in discharge of liability and his guilt has been established beyond any doubt, he be punished with maximum punishment provided and he does not deserve any leniency. It is argued that the trial has expanded for over more than 11 years and complainant had to suffer greatly. Referring to the judgments of superior Courts regarding provisions U/S 431 Cr.P.C and Section 357(3) of Cr.P.C, Counsel has prayed for 13 compensation considering the conduct of the Convict. Therefore, Ld. counsel for complainant has prayed for taking strict view under the provisions of NI Act.
4. I have heard respective parties at bar. I have also considered the past antecedents of convict and the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under Section 138 NI has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheque and to lend greater credibility to the transactions.
5. Considering the circumstances, it would be appropriate to sentence the convict to simple imprisonment for six months alongwith fine of Rs. 3,00,000/- as per Section 143 (1) (Proviso) NI Act r/w Section 357(1)(3) of Cr.P.C. Out of this amount, Rs. 2,90,000/- shall be payable to the complainant as compensation and Rs. 10,000/- to the State within a month from today. In default of payment of fine payable to state, convict shall further undergo imprisonment for three months.
6. It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of Section 421 Cr.P.C.
7. At this stage, counsel for convict prays for suspension of sentence Under the provisions of section 389 (3) Cr.P.C, for filing the appeal by convict and request is made for releasing him on bail. Heard.
Surety / his son is present.
Since convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs 20,000/- with one surety in the like amount.
Bail bond furnished and accepted till 16.4.2010 2.00 PM. Copy of order be given dasti.
(Announced in Open Court (MS. RAVINDER BEDI)
on 17.3.2010) JSCC cum ASCJ cum Guardian Judge
(South) 17.3.2010